Middleton Jr v. Bank of America NA

Opinion

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5

6 ERVIN MIDDLETON JR., et al., Case No.: 2:20-cv-00426-KJD-DJA 7 Plaintiffs, ORDER 8 v.

9 BANK OF AMERICA, NA, et al., 10 Defendants. 11 Pending before the Court is Defendants Wells Fargo Bank, N.A. and Bank of America, 12 N.A.’s Joint Motion to Stay Discovery Pending Outcome of Motions to Dismiss (ECF No. 44), 13 filed on May 13, 2020. Defendant Nationstar Mortgage LLC dba Mr. Cooper filed a Joinder (ECF 14 No. 46) on May 13, 2020. Any response to the Motion was due by May 27, 2020. To date, no 15 response has been filed. The Court finds this matter properly resolved without a hearing. See 16 Local Rule 78-1. 17 Courts have broad discretionary power to control discovery. See, e.g., Little v. City of 18 Seattle, 863 F.2d 681, 685 (9th Cir.1988). In deciding whether to grant a stay of discovery, the 19 Court is guided by the objectives of Rule 1 to ensure a just, speedy, and inexpensive 20 determination of every action. See Kidneigh v. Tournament One Corp., 2013 WL 1855764, at *2 21 (D. Nev. May 1, 2013). “The Federal Rules of Civil Procedure do not provide for automatic or 22 blanket stays of discovery when a potentially dispositive motion is pending.” Tradebay, LLC v. 23 eBay, Inc., 278 F.R.D. 597, 600 (D. Nev. 2011). However, preliminary issues such as 24 jurisdiction, venue, or immunity are common situations that may justify a stay. See Twin City 25 Fire Ins. v. Employers of Wausau, 124 F.R.D. 653 (D. Nev. 1989); see also Kabo Tools Co. v. 26 Porauto Indus. Co., 2013 WL 5947138, at *1 (D. Nev. Oct. 31, 2013) (granting stay based on 27 alleged lack of personal jurisdiction); Ministerio Roca Solida v. U.S. Dep’t of Fish & Wildlife, 28 288 F.R.D. 500, 506 (D. Nev. 2013) (granting stay based in part on alleged lack of subject matter 1 jurisdiction). Further, motions to stay discovery pending resolution of a dispositive motion may 2 be granted when: (1) the pending motion is potentially dispositive; (2) the potentially dispositive 3 motion can be decided without additional discovery; and (3) the Court has taken a “preliminary 4 peek” at the merits of the potentially dispositive motion to evaluate the likelihood of dismissal. 5 See Kor Media Group, LLC v. Green, 294 F.R.D. 579, 581 (D. Nev. 2013). 6 A party seeking to stay discovery pending resolution of a potentially dispositive motion 7 bears the heavy burden of establishing that discovery should be stayed. See, e.g., Turner 8 Broadcasting System, Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997) (noting that a 9 stay of discovery may be appropriate where the complaint was “utterly frivolous, or filed merely 10 for settlement value.”); Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). When 11 deciding whether to issue a stay, a court must take a “preliminary peek” at the merits of the 12 dispositive motion pending in the case. Tradebay, 278 F.R.D. at 602-603. In doing so, a court 13 must consider whether the pending motion is potentially dispositive of the entire case, and 14 whether that motion can be decided without additional discovery. Id. This “preliminary peek” is 15 not intended to prejudge the outcome, but to evaluate the propriety of a stay of discovery “with 16 the goal of accomplishing the objectives of Rule 1.” Id. (citation omitted). That discovery may 17 involve inconvenience and expense is not sufficient, standing alone, to support a stay of 18 discovery. Turner Broadcasting, 175 F.R.D. at 556. An overly lenient standard for granting 19 requests to stay would result in unnecessary delay in many cases. 20 Plaintiffs have failed to file points and authorities in response to the motion, which 21 “constitutes a consent to the granting of the motion.” LR 7-2(d). Moreover, after taking a 22 preliminary peek at the pending Motions to Dismiss briefing, the Court finds that Defendants have 23 carried their heavy burden of establishing that discovery should be stayed. The issues before the 24 Court in the pending Motions (ECF Nos. 15 and 39) do not require further discovery as they have 25 been fully briefed. Additionally, discovery is expensive and resolving issues that may result in the 26 full dismissal of this case at the earliest possible stage of litigation is important. The Court is not 27 convinced that Plaintiff will survive Defendants’ challenges in the Motions, but notes, of course, 28 that its view “may be very different than how the assigned district judge will see the . . . picture.” 1 AMC Fabrication, Inc. v. KRD Trucking W., Inc., 2012 WL 4846152, *4 (D. Nev. Oct. 10, 2012). 2 As such, the Court finds this is a case where a temporary stay of discovery will further the goal of 3 judicial economy. 4 IT IS HEREBY ORDERED that Defendants Wells Fargo Bank, N.A. and Bank of 5 America, N.A.’s Joint Motion to Stay Discovery Pending Outcome of Motions to Dismiss (ECF 6 No. 44) is granted. 7 IT IS FURTHER ORDERED that the parties shall meet and confer and submit a 8 stipulated discovery plan and scheduling order within 14 days after the Court’s ruling on the 9 pending Motions to Dismiss (ECF Nos. 15 and 39), to the extent that any portion of the case 10 survives. 11 12 Dated: May 28, 2020. 13 ______________________________ Daniel J. Albregts 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28