1 2 3 4 5 6 7 10 11 ANTON A. EWING, Case No.: 23-CV-933-BAS-WVG
12 Plaintiff, ORDER: 13 v. (1) GRANTING MOTION TO STAY DISCOVERY; AND ONE, LLC, 15 Defendant. [Doc. No. 27] 16
17 (2) DENYING PLAINTIFF’S MOTION FOR SANCTIONS 18
19 [Doc. No. 23] 20 21 22 Plaintiff Anton A. Ewing (“Plaintiff”), proceeding pro se, brings this action under 23 the Telephone Consumer Protection Act, 47 U.S.C. § 227, alleging that Defendant 24 Premium Merchant Funding One, LLC (“Defendant”) called Plaintiff with prerecorded 25 artificial voice messages and sent out telemarking text messages without Plaintiff’s 26 consent. See generally Doc. No. 11, First Amended Complaint (“FAC”). Presently 27 pending before the Court are: (1) Defendant’s Motion to Stay Discovery pending U.S. 28 District Judge Cynthia Bashant’s ruling on its Motion to Dismiss Plaintiff’s FAC, Doc. No. 1 27; and (2) Plaintiff’s Motion for Sanctions against defense counsel, Doc. No. 23. Both 2 motions are now fully briefed. Upon review of the briefing, the Court finds these matters 3 suitable for determination on the papers and without oral argument pursuant to Federal 4 Rule of Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. For the reasons set forth below, 5 the Court GRANTS Defendant’s Motion to Stay Discovery, and DENIES Plaintiff’s 6 Motion for Sanctions. 8 Defendant argues discovery should be stayed in this case because resolution of its 9 pending Motion to Dismiss “is potentially dispositive,” “a ruling does not require 10 discovery,” and because a “stay would maximize efficiency.” Doc. No. 27 at 4. Plaintiff 11 responds that the pending Motion to Dismiss is not likely to succeed and thus discovery 12 should move forward now. Doc. No. 31 at 4–9. 13 Federal Rule of Civil Procedure 26(c)(1) grants the Court authority to issue a 14 protective order pertaining to the discovery process, upon a showing of good cause, in order 15 to prevent “annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. 16 Civ. P. 26(c)(1). Further, a party may seek such an order staying discovery pending the 17 outcome of a potentially dispositive motion. See Wenger v. Monroe, 282 F.3d 1068, 1077 18 (9th. Cir. 2002). “The burden is upon the party seeking the order to ‘show good cause’ by 19 demonstrating harm or prejudice that will result from the discovery.” Rivera v. NIBCO, 20 Inc., 364 F.3d 1057, 1063, (9th Cir. 2004). This burden is a heavy one and requires an 21 explanation of a “particular and specific need for the protective order.” Tradebay, LLC v. 22 eBay, Inc., 278 F.R.D. 597, 601–02 (D. Nev. 2011) (citing Blankenship v. Hearst Corp., 23 519 F.2d 418, 429 (9th Cir. 1975); Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. 24 Cal. 1990)). The Court has “wide discretion in controlling discovery” and is permitted to 25 enter an order staying discovery when it “is convinced that the plaintiff will be unable to 26 state a claim for relief.” Mlejnecky v. Olympus Imaging America, Inc., No. 2:10-cv-02630 27 JAM KJM, 2011 WL 489743, at *5 (E.D. Cal. Feb. 7, 2011) (quoting Little v. City of 28 Seattle, 863 F.2d 681, 685 (9th Cir. 1988); Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1 1981)). However, as the Federal Rules do not provide for automatic stays of discovery, 2 and because their routine issuance would be “directly at odds with the need for expeditious 3 resolution of litigation,” courts generally disfavor them. Mlejnecky, 2011 WL 489743, at 4 *6 (collecting cases). 5 The Ninth Circuit has not provided a clear standard for district courts to apply when 6 determining whether it is appropriate to stay discovery pending the outcome of a potentially 7 dispositive motion. Id.; Salazar v. Honest Tea, Inc., No. 2:13-cv-02318-KJM-EFB, 2015 8 WL 6537813, at *1 (E.D. Cal. Oct. 28, 2015). However, “[t]he purpose of Federal Rule of 9 Civil Procedure 12(b)(6) is to enable defendants to challenge the legal sufficiency of a 10 complaint without subjecting themselves to discovery.” Tradebay, 278 F.R.D. at 601 11 (citing Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987)). 12 “[D]iscovery at the pleading stage is only appropriate where factual issues are raised by a 13 Rule 12(b) motion.” Id. (citing Wagh v. Metris Direct, Inc., 363 F.3d 821, 829 (9th Cir. 14 2003); Odom v. Microsoft Corp., 486 F.3d 541, 551 (9th Cir. 2007). 15 In this instance, the Court finds that the most appropriate test is the one often 16 employed by district courts across California. It is a two-part test providing that it is 17 appropriate to stay discovery if: (1) “the pending motion [is] potentially dispositive of the 18 entire case, or at least dispositive on the issue at which discovery is aimed,” and (2) “the 19 pending, potentially dispositive motion can be decided absent additional discovery.” 20 Mlejnecky, 2011 WL 489743 at *6 (collecting E.D. Cal. and N.D. Cal. cases applying this 21 test); see also Amey v. Cinemark, USA Inc., No. CV 13-0624 MMM (CWx), 2013 WL 22 12143815, at *2-*3 (C.D. Cal. Oct. 18, 2013) (similarly applying this test). 23 Here, the Court finds that both elements are satisfied. Defendant’s Motion to 24 Dismiss is potentially dispositive of the entire case as it raises arguments related to the 25 adequacy of Plaintiff’s pleading and his ability to state a claim based on his allegations. 26 See generally Doc. No. 13. Additionally, it appears that the district judge will be able to 27 resolve these questions without requiring further discovery. Moreover, although Plaintiff 28 states that the parties already conducted their Rule 26(f) conference, Doc. No. 31 at 3, the 1 Court also finds that Plaintiff will not be prejudiced by a temporary stay of discovery, 2 especially considering the Court’s decision to vacate the Early Neutral Evaluation and Case 3 Management Conferences in this case pending Judge Bashant’s ruling on Defendant’s 4 Motion to Dismiss. See Doc. No. 14. 5 Accordingly, Defendant’s Motion to Stay Discovery, Doc. No. 27, is GRANTED. 6 As such, the Court temporarily STAYS discovery in this matter pending the resolution of 7 Defendant’s Motion to Dismiss. 9 Turning to Plaintiff’s Motion for Sanctions, Plaintiff requests that the Court sanction 10 Defendant and attorney Zachary Frampton for refusing to meet and confer, not providing 11 Plaintiff with deposition dates, emailing U.S. Magistrate Judge William V. Gallo’s 12 Chambers with a question, and “making derogatory and unprofessional remarks at Plaintiff 13 in his pleadings and in the presence of court staff.” See Doc. No. 23 at 2–7. In opposition, 14 Defendant argues Plaintiff’s Motion is meritless and requests fees and costs incurred in 15 having to respond to Plaintiff’s Motion. See Doc. No. 30 at 6, 12. 16 Notably, Plaintiff’s Motion lacks any law or authority in support of his request for 17 sanctions.
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1 2 3 4 5 6 7 10 11 ANTON A. EWING, Case No.: 23-CV-933-BAS-WVG
12 Plaintiff, ORDER: 13 v. (1) GRANTING MOTION TO STAY DISCOVERY; AND ONE, LLC, 15 Defendant. [Doc. No. 27] 16
17 (2) DENYING PLAINTIFF’S MOTION FOR SANCTIONS 18
19 [Doc. No. 23] 20 21 22 Plaintiff Anton A. Ewing (“Plaintiff”), proceeding pro se, brings this action under 23 the Telephone Consumer Protection Act, 47 U.S.C. § 227, alleging that Defendant 24 Premium Merchant Funding One, LLC (“Defendant”) called Plaintiff with prerecorded 25 artificial voice messages and sent out telemarking text messages without Plaintiff’s 26 consent. See generally Doc. No. 11, First Amended Complaint (“FAC”). Presently 27 pending before the Court are: (1) Defendant’s Motion to Stay Discovery pending U.S. 28 District Judge Cynthia Bashant’s ruling on its Motion to Dismiss Plaintiff’s FAC, Doc. No. 1 27; and (2) Plaintiff’s Motion for Sanctions against defense counsel, Doc. No. 23. Both 2 motions are now fully briefed. Upon review of the briefing, the Court finds these matters 3 suitable for determination on the papers and without oral argument pursuant to Federal 4 Rule of Civil Procedure 78(b) and Civil Local Rule 7.1.d.1. For the reasons set forth below, 5 the Court GRANTS Defendant’s Motion to Stay Discovery, and DENIES Plaintiff’s 6 Motion for Sanctions. 8 Defendant argues discovery should be stayed in this case because resolution of its 9 pending Motion to Dismiss “is potentially dispositive,” “a ruling does not require 10 discovery,” and because a “stay would maximize efficiency.” Doc. No. 27 at 4. Plaintiff 11 responds that the pending Motion to Dismiss is not likely to succeed and thus discovery 12 should move forward now. Doc. No. 31 at 4–9. 13 Federal Rule of Civil Procedure 26(c)(1) grants the Court authority to issue a 14 protective order pertaining to the discovery process, upon a showing of good cause, in order 15 to prevent “annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. 16 Civ. P. 26(c)(1). Further, a party may seek such an order staying discovery pending the 17 outcome of a potentially dispositive motion. See Wenger v. Monroe, 282 F.3d 1068, 1077 18 (9th. Cir. 2002). “The burden is upon the party seeking the order to ‘show good cause’ by 19 demonstrating harm or prejudice that will result from the discovery.” Rivera v. NIBCO, 20 Inc., 364 F.3d 1057, 1063, (9th Cir. 2004). This burden is a heavy one and requires an 21 explanation of a “particular and specific need for the protective order.” Tradebay, LLC v. 22 eBay, Inc., 278 F.R.D. 597, 601–02 (D. Nev. 2011) (citing Blankenship v. Hearst Corp., 23 519 F.2d 418, 429 (9th Cir. 1975); Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. 24 Cal. 1990)). The Court has “wide discretion in controlling discovery” and is permitted to 25 enter an order staying discovery when it “is convinced that the plaintiff will be unable to 26 state a claim for relief.” Mlejnecky v. Olympus Imaging America, Inc., No. 2:10-cv-02630 27 JAM KJM, 2011 WL 489743, at *5 (E.D. Cal. Feb. 7, 2011) (quoting Little v. City of 28 Seattle, 863 F.2d 681, 685 (9th Cir. 1988); Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1 1981)). However, as the Federal Rules do not provide for automatic stays of discovery, 2 and because their routine issuance would be “directly at odds with the need for expeditious 3 resolution of litigation,” courts generally disfavor them. Mlejnecky, 2011 WL 489743, at 4 *6 (collecting cases). 5 The Ninth Circuit has not provided a clear standard for district courts to apply when 6 determining whether it is appropriate to stay discovery pending the outcome of a potentially 7 dispositive motion. Id.; Salazar v. Honest Tea, Inc., No. 2:13-cv-02318-KJM-EFB, 2015 8 WL 6537813, at *1 (E.D. Cal. Oct. 28, 2015). However, “[t]he purpose of Federal Rule of 9 Civil Procedure 12(b)(6) is to enable defendants to challenge the legal sufficiency of a 10 complaint without subjecting themselves to discovery.” Tradebay, 278 F.R.D. at 601 11 (citing Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987)). 12 “[D]iscovery at the pleading stage is only appropriate where factual issues are raised by a 13 Rule 12(b) motion.” Id. (citing Wagh v. Metris Direct, Inc., 363 F.3d 821, 829 (9th Cir. 14 2003); Odom v. Microsoft Corp., 486 F.3d 541, 551 (9th Cir. 2007). 15 In this instance, the Court finds that the most appropriate test is the one often 16 employed by district courts across California. It is a two-part test providing that it is 17 appropriate to stay discovery if: (1) “the pending motion [is] potentially dispositive of the 18 entire case, or at least dispositive on the issue at which discovery is aimed,” and (2) “the 19 pending, potentially dispositive motion can be decided absent additional discovery.” 20 Mlejnecky, 2011 WL 489743 at *6 (collecting E.D. Cal. and N.D. Cal. cases applying this 21 test); see also Amey v. Cinemark, USA Inc., No. CV 13-0624 MMM (CWx), 2013 WL 22 12143815, at *2-*3 (C.D. Cal. Oct. 18, 2013) (similarly applying this test). 23 Here, the Court finds that both elements are satisfied. Defendant’s Motion to 24 Dismiss is potentially dispositive of the entire case as it raises arguments related to the 25 adequacy of Plaintiff’s pleading and his ability to state a claim based on his allegations. 26 See generally Doc. No. 13. Additionally, it appears that the district judge will be able to 27 resolve these questions without requiring further discovery. Moreover, although Plaintiff 28 states that the parties already conducted their Rule 26(f) conference, Doc. No. 31 at 3, the 1 Court also finds that Plaintiff will not be prejudiced by a temporary stay of discovery, 2 especially considering the Court’s decision to vacate the Early Neutral Evaluation and Case 3 Management Conferences in this case pending Judge Bashant’s ruling on Defendant’s 4 Motion to Dismiss. See Doc. No. 14. 5 Accordingly, Defendant’s Motion to Stay Discovery, Doc. No. 27, is GRANTED. 6 As such, the Court temporarily STAYS discovery in this matter pending the resolution of 7 Defendant’s Motion to Dismiss. 9 Turning to Plaintiff’s Motion for Sanctions, Plaintiff requests that the Court sanction 10 Defendant and attorney Zachary Frampton for refusing to meet and confer, not providing 11 Plaintiff with deposition dates, emailing U.S. Magistrate Judge William V. Gallo’s 12 Chambers with a question, and “making derogatory and unprofessional remarks at Plaintiff 13 in his pleadings and in the presence of court staff.” See Doc. No. 23 at 2–7. In opposition, 14 Defendant argues Plaintiff’s Motion is meritless and requests fees and costs incurred in 15 having to respond to Plaintiff’s Motion. See Doc. No. 30 at 6, 12. 16 Notably, Plaintiff’s Motion lacks any law or authority in support of his request for 17 sanctions. Federal courts may impose sanctions on parties failing to comply with court 18 orders under both the Federal Rules of Civil Procedure and the Local Rules. Civil Local 19 Rule 83.1 provides that “[f]ailure of counsel or of any party to comply with these rules . . . 20 or with any order of the court may be grounds for imposition by the court of any and all 21 sanctions authorized by statute or rule or within the inherent power of the court, including, 22 without limitation, dismissal of any actions, entry of default, finding of contempt, 23 imposition of monetary sanctions or attorneys' fees and costs, and other lesser sanctions.” 24 CivLR 83.1(a). Additionally, all “federal courts are vested with inherent powers enabling 25 them to manage their cases and courtrooms effectively and to ensure obedience to their 26 orders. . . . As a function of this power, courts can dismiss cases in their entirety, bar 27 witnesses, award attorney’s fees and assess fines.” Aloe Vera of Am., Inc. v. United States, 28 376 F.3d 960, 964–65 (9th Cir. 2004) (citing F.J. Hanshaw Enters., Inc. v. Emerald River 1 Dev., Inc., 244 F.3d 1128, 1136 (9th Cir. 2001)). Federal courts have “inherent power to 2 impose sanctions against attorneys and parties for bad faith conduct in litigation.” Oliver 3 v. In-N-Out Burgers, 945 F. Supp. 2d. 1126, 1129 (S.D. Cal. 2013) (citing Chambers v. 4 NASCO, 501 U.S. 32, 43 (1991)). “Before a court may award sanctions under its inherent 5 powers, the court must make an explicit finding that counsel’s conduct constituted or was 6 tantamount to bad faith.” Id. (citing Mendez v. County of San Bernardino, 540 F.3d 1109, 7 1131 (9th Cir. 2008)). “[T]he bad-faith requirement sets a ‘high threshold,’ which may be 8 met by willful misconduct, . . . or recklessness that is coupled with an improper purpose.” 9 Lofton v. Verizon Wireless (VAW) LLC, 308 F.R.D. 276, 285 (N.D. Cal. 2015) (quoting 10 Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997)). The burden 11 is on the moving party to demonstrate that the opposing party acted with the necessary bad 12 faith or improper purpose. Id. 13 Here, the conduct at issue in Plaintiff’s Motion does not warrant sanctions. For 14 example, Plaintiff references an email sent to the Court by Defendant on July 17, 2023 as 15 one of his grounds for sanctions. See Doc. No. 23 at 5. As the Court previously wrote to 16 Plaintiff in an email from July 17, 2023 replying to Plaintiff’s assertion that Defendant’s 17 email was an “illegal communication,” reviewing conduct for compliance with Chambers 18 Rules is wholly within the Court’s discretion. Accordingly, the Court will not sanction 19 Defendant for this conduct because it does not find that the email was sent in bad faith or 20 for an improper purpose. In addition, Plaintiff’s complaint regarding Defendant’s refusal 21 to schedule depositions is moot given the Court’s decision to stay discovery in this matter. 22 Moreover, although the Court finds defense counsel’s apparent unwillingness to meet and 23 confer disappointing, it also does not rise to the level of bad faith for which contempt 24 sanctions would be appropriate. Finally, as to Plaintiff’s complaint regarding Defendant’s 25 alleged “derogatory and unprofessional remarks” about Plaintiff, the Court similarly 26 declines to impose sanctions given Plaintiff’s own uncivil aspersions accusing defense 27 counsel of gamesmanship and lying to the Court. See, e.g., Doc. No. 23 at 4, 7. Mr. Ewing 28 1 Mr. Frampton are both further cautioned that any uncivil or ad hominem statements 2 || directed toward the other must stop immediately. 3 Accordingly, the Court DENIES Plaintiff's Motion for Sanctions, Doc. No. 23. The 4 ||Court also DENIES Defendant’s request to order Plaintiff to compensate Defendant for 5 || the time incurred in having to oppose the instant Motion. However, the Court reminds the 6 || parties that any future unprofessional conduct or otherwise improper conduct (including 7 not limited to filing motions with no basis in the law) may warrant a motion for 8 || sanctions by either party. 10 || Dated: August 10, 2023 | Se 1] 2 Hon. William V. Gallo United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28