Geraldine Van Damme v. U.S. Bank National Association et al.

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 Case No. 2:25-cv-1481-RFB-BNW Geraldine Van Damme 5 Plaintiff, ORDER 6 v. 7 U.S. Bank National Association et al., 8

Defendants. 9

10 Before this Court is Defendants U.S. Bank and Wells Fargo Bank, N.A.’s Motion to Stay 11 Discovery. ECF No. 31. Plaintiff opposed the motion (ECF No. 37), and Defendants replied (ECF 12 No. 40). The parties are familiar with the arguments. As a result, this Court does not repeat them. 13 Instead, it will incorporate the arguments as necessary and relevant to this order. 14 I. Legal Standard 15 The Federal Rules of Civil Procedure do not provide for automatic or blanket stays of 16 discovery because a potentially dispositive motion is pending. Skellerup Indus. Ltd. v. City of 17 L.A., 163 F.R.D. 598, 600–01 (C.D. Cal. 1995). A court may, however, stay discovery under Fed. 18 R. Civ. P. 26(c). The standard for staying discovery under Rule 26(c) is good cause. 19 The Ninth Circuit has not provided a rule or test that district courts must apply to 20 determine if good cause exists to stay discovery. But it has identified one scenario in which a 21 district court may stay discovery and one scenario in which a district court may not stay 22 discovery. The Ninth Circuit has held that a district court may stay discovery when it is convinced 23 that the plaintiff will be unable to state a claim upon which relief can be granted. See Wood v. 24 McEwen, 644 F.2d 797, 801 (9th Cir. 1981). The Ninth Circuit also has held that a district court 25 may not stay discovery when discovery is needed to litigate the dispositive motion. Alaska Cargo 26 Transp., Inc. v. Alaska R.R. Corp., 5 F.3d 378, 383 (9th Cir. 1993). 27 1 Based on this Ninth Circuit law, district courts in the District of Nevada have applied the 2 preliminary peek test to determine when discovery may be stayed. See, e.g., Kor Media Group, 3 LLC v. Green, 294 F.R.D. 579 (D. Nev. 2013). Under that test, the moving party must meet the 4 following three requirements before the court will stay discovery pending a motion to dismiss: (1) 5 the pending motion must be potentially dispositive; (2) the potentially dispositive motion be 6 capable of resolution without additional discovery; and (3) after taking a “preliminary peek” at 7 the merits of the potentially dispositive motion, the court must be convinced that the plaintiff will 8 be unable to state a claim for relief. Id. at 581. The point of the preliminary peek test is to 9 “evaluate the propriety of an order staying or limiting discovery with the goal of accomplishing 10 the objectives of [Federal] Rule [of Civil Procedure] 1.” Tradebay, LLC v. eBay, Inc., 278 F.R.D. 11 597, 603 (D. Nev. 2011). This Court has found the preliminary peek test can sometimes be 12 problematic because it can be inaccurate and inefficient. See Schrader v. Wynn Las Vegas, LLC, 13 No. 2:19-CV-02159-JCM-BNW, 2021 WL 4810324, at *3 (D. Nev. Oct. 14, 2021). Importantly, 14 the application of the preliminary peek test as written (i.e., the Court must be convinced after a 15 superficial look at the dispositive motion that the plaintiff cannot state a claim), inevitably leads 16 to few motions to stay discovery being granted, and those are typically baseless cases. Id. at * 3-4. 17 The Court believes a more workable analytical framework exists for determining when 18 motions to stay should be granted. As a result, the test this Court considers is (1) whether the 19 dispositive motion can be decided without further discovery, and (2) whether good cause exists to 20 stay discovery. 21 Good cause may be established using the preliminary peek test, but it may also be 22 established by other factors not related to the merits of the dispositive motion. For example, in 23 many cases, the movant seeks a stay of discovery to prevent “undue burden or expense.” See Fed. 24 R. Civ. P. 26(c)(1). In those cases, the movant must establish what undue burden or expense will 25 result from discovery proceeding when a dispositive motion is pending. While good cause may be 26 established based on such non-merits-based considerations, the merits of the case may certainly 27 also play a role in the analysis. In some cases, the merits of the dispositive motion may influence 1 R. Civ. P. 1, the Court is trying to determine “whether it is more just to speed the parties along in 2 discovery and other proceedings while a dispositive motion is pending, or whether it is more just 3 to delay or limit discovery and other proceedings to accomplish the inexpensive determination of 4 the case.” Tradebay, 278 F.R.D. at 603. 5 “The burden is upon the party seeking the order to ‘show good cause’ by demonstrating 6 harm or prejudice that will result from the discovery.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 7 1063 (9th Cir. 2004). 8 II. Analysis 9 This Court starts by analyzing Defendants’ argument in their Motion to Dismiss that the 10 claims at issue are barred by claim preclusion. The prior cases cited by Defendants include 11 similar claims or theories to the ones that Plaintiff brings in the present case, and all but one of 12 the cases have final judgments. Although Plaintiff was not a party in the three U.S. District Court 13 cases that Armin (Plaintiff’s then-husband) filed in the District of Nevada, the district judge may 14 find Plaintiff was in privity with Armin since she had an interest in the subject property as a as 15 co-owner or co-tenant. See Headwaters Inc. v. U.S. Forest Service, 399 F.3d 1047, 1053 (9th Cir 16 2005). Thus, this Court is left with a strong impression that Defendants will likely be successful 17 at having Plaintiff’s wrongful foreclosure and lost or stolen instrument claims1 dismissed under 18 claim preclusion. See Five Star Cap. Corp. v. Ruby, 124 Nev. 1048, 1054–55, 194 P.3d 709, 713 19 (2008) (listing the elements of claim preclusion in Nevada). 20 And no discovery is needed to make that determination. Whether Plaintiff’s claims are 21 precluded by her ex-husband’s prior litigation can be decided by looking to judicially noticeable 22 documents and his prior cases. See ECF No. 25-3 (Foreclosure Mediation Order Granting 23 Appropriate Relief); 2:15-cv-1951-GMN-PAL (First USDC Action); 2:24-cv-01287-JAD-BNW 24 (Second USDC Action); 2:24-cv-02376-RFB-EJY (Third USDC Action). Additionally, most of 25 the “narrowly tailored discovery” that Plaintiff proposes as an alternative to a blanket stay of 26 1This Court is convinced, however, that Plaintiff’s third claim, which is a claim for declaratory 27 relief, will be dismissed. Declaratory relief is a remedy, not a stand-alone claim. Brown v. Transworld Sys., Inc., 73 F4th 1030, 1038 (9th Cir. 2023); see also Tradebay, LLC v. eBay, Inc., 1 || discovery is made up of judicially noticeable documents already before the Court. See ECF No. 2 || 37 at 7. 3 Next, this Court evaluates whether good cause exists to stay discovery. This Court takes 4 || note of previous cases challenging the foreclosure on the subject property filed by Plaintiffs ex- 5 || husband, Armin’, as well as a 2019 foreclosure mediation that Plaintiff took part in with Armin. ? 6 Litigation surrounding the foreclosure of the subject property has been ongoing for nearly 7 || seventeen years with multiple cases being filed in different courts and different jurisdictions. 8 || Accordingly, much of the discovery Plaintiff alleges is needed has already been produced in other 9 || litigation and is judicially noticeable by the Court. Further, it is an undue burden on Defendants to 10 || produce additional discovery when it is likely that at least some of Plaintiffs claims or parts of 11 || claims are precluded. Defendants have demonstrated that harm or prejudice will result if 12 || discovery proceeds now. Conversely, Plaintiff will not suffer any harm if discovery is stayed. 13 || Plaintiff already been evicted from the property. See ECF No. 31 at 14. Accordingly, this 14 || Court finds that there is good cause to grant Defendant’s stay of discovery under the guidance of 15 || Fed. R. Civ. P. 1. 16 || Ill. Conclusion 17 IT IS THEREFORE ORDERED that Defendants’ motions to stay discovery (ECF No. 18 |} 311s GRANTED. 19 DATED: March 18, 2026 20 LE a Lee are Ln BR KSLER . 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 || ———— “See 2:15-cv-1951-GMN-PAL; 2:24-cv-01287-JAD-BNW; 2:24-cv-02376-RFB-EJY. See ECF No. 12-8