1 Jacob B. Lee Nevada Bar No. 012428 2 STRUCK LOVE BOJANOWSKI & ACEDO, PLC 3100 West Ray Road, Suite 300 3 Chandler, Arizona 85226 Tel.: (480) 420-1600 4 Fax: (480) 420-1695 JLee@strucklove.com 5 Gina G. Winspear 6 Nevada Bar No. 005552 DENNETT WINSPEAR, LLP 7 3301 North Buffalo Drive, Suite 195 Las Vegas, Nevada 89129 8 Tel.: (702) 839-1100 Fax: (702) 839-1113 9 GWinspear@dennettwinspear.com 10 Attorneys for Defendants Walker, Samburg, Narvaez, and Morgan 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 GERARDO PEREZ, Case No. 2:21-cv-00075-RFB-MDC 14 Plaintiff, 15 CORECIVIC DEFENDANTS’ v. MOTION TO STAY 16 JENNIFER NASH, et al., 17 Defendants. 18 19 To promote judicial economy and the interests of Rule 1 of the Federal Rules of Civil 20 Procedure, Defendants Walker, Samburg, Narvaez and Morgan (“CoreCivic Defendants”) 21 request that the Court stay all case management deadlines set forth in the Joint Discovery Plan 22 and Scheduling Order (Dkt. 156) pending resolution of Defendants’ Motion to Dismiss 23 (Dkt. 155).1 A stay is warranted where: (1) CoreCivic Defendants’ Motion is potentially 24 dispositive of all claims against them; (2) discovery is unnecessary for the Court to rule on 25 CoreCivic Defendants’ Motion; (3) a “preliminary peek” reveals the likelihood that CoreCivic 26 Defendants’ Motion will be successful; and (4) a brief stay serves the interest of fairness by 27
1 The Motion to Dismiss is fully briefed and pending a ruling by the Court. 28 1 preventing the CoreCivic Defendants, who have never been served process in this case and 2 lack the requisite contacts with Nevada, from being haled into this Court and required to 3 participate in potentially unnecessary discovery, preserving their resources as well as 4 Plaintiff’s and the Court’s. 5 I. Introduction. 6 This Court lacks personal jurisdiction over CoreCivic Defendants, and for that reason, 7 they should not be subjected to discovery. Courts in this District have applied a presumption 8 that a pending motion to dismiss for lack of personal jurisdiction warrants staying or 9 restricting discovery. CoreCivic Defendants have never been properly served in this matter in 10 either their individual or official capacities. Nor are they Nevada residents and, as explained 11 more fully in Defendants’ Motion to Dismiss (Dkt. 155) and Reply (Dkt. 159), they do not 12 have sufficient contacts with the State of Nevada. Accordingly, CoreCivic Defendants should 13 not be subject to the burdens of defending themselves and conducting discovery pending the 14 Court’s resolution of the Motion to Dismiss. 15 II. Legal Argument. 16 The Court has broad discretion to control discovery to determine whether a stay is 17 appropriate. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (“[T]he power to stay 18 proceedings is incidental to the power inherent in every court to control the disposition of the 19 causes on its docket with economy of time and effort for itself, for counsel, and for litigants.”); 20 Little v. City of Seattle, 864 F.2d 681, 685 (9th Cir. 1988) (“The district court has wide 21 discretion in controlling discovery.”). This power is axiomatic in Federal Rule of Civil 22 Procedure 26(c)(1), which states that “[t]he court may, for good cause, issue an order to 23 protect a party or person from annoyance, embarrassment, oppression, or undue burden or 24 expense.” See Grammer v. Col. Hosp. Ass’n Shared Servs., Inc., 2015 WL 268780, *2 25 (D. Nev. Jan. 21, 2015) (Rule 26(c)(1) “includes the power to stay discovery”). 26 In deciding whether to grant a stay of discovery, the Court is guided by the objectives 27 of Rule 1 to ensure a “just, speedy, and inexpensive determination of every action.” Tradebay, 28 1 LLC v. eBay, Inc., 278 F.R.D. 597, 602–603 (D. Nev. 2011). Courts in this District have 2 formulated three considerations in determining whether to stay discovery pending resolution 3 of a potentially dispositive motion: (1) the pending motion is potentially dispositive; (2) the 4 potentially dispositive motion can be decided without additional discovery; and (3) the Court 5 has taken a “preliminary peek” at the merits of the potentially dispositive motion and is 6 convinced that the plaintiff will be unable to state a claim for relief. Id. 7 Each of these considerations tips in CoreCivic Defendants’ favor. As such, the Court 8 should stay case management deadlines pending resolution of CoreCivic Defendants’ Motion 9 to Dismiss. 10 A. If Granted, CoreCivic Defendants’ Motion Will Dispose of Plaintiff’s Case. 11 CoreCivic Defendants’ Motion to Dismiss, which was filed pursuant to Federal Rule 12 of Civil Procedure 12(b)(2)–(3) and (5), is potentially dispositive of all claims against them. 13 See SmarterSwipe, Inc. v. Navarrete, No. 224CV00299CDSMDC, 2024 WL 1344713, at *1 14 (D. Nev. Mar. 29, 2024) (12(b)(2) motion dispositive); Gallo v. Crawford, No. 2:03CV1548 15 RCJLRL, 2007 WL 773845, at *3 (D. Nev. Mar. 9, 2007) (12(b)(5) motion dispositive). As 16 established in Defendants’ Motion to Dismiss (Dkt. 155) and Reply (Dkt. 159), CoreCivic 17 Defendants do not have sufficient contact with Nevada, and the conduct Plaintiff complains 18 of occurred in Arizona, not Nevada. Accordingly, Nevada cannot exercise personal 19 jurisdiction over these Defendants. Further, Plaintiff failed to serve them. “A federal court 20 does not have jurisdiction over a defendant unless the defendant has been served properly 21 under Fed. R. Civ. P. 4.” Direct Mail Specialists v. Eclat Computerized Techs., Inc., 840 F.2d 22 685, 688 (9th Cir. 1988). Either way, Plaintiff’s claims against CoreCivic Defendants are 23 subject to dismissal. 24 Because CoreCivic Defendants’ Motion to Dismiss is potentially dispositive of all 25 claims against them, a stay pending its resolution is warranted. Tradebay, 278 F.R.D. at 26 602–603. 27 28 1 B. Additional Discovery is Not Needed. 2 In determining whether to order a stay, the Court will look to see whether a decision 3 can be made on the pending dispositive motion without the need for additional discovery. See 4 Money v. Banner Health, No. 3:11-cv-00800-LRH-WGC, 2012 WL 1190858, *12 5 (D. Nev. Apr. 9, 2012) (staying discovery where the court was equipped to decide a pending 6 dispositive motion “without further discovery”). Additional discovery is not required to 7 decide CoreCivic Defendants’ Motion to Dismiss, and Plaintiff did not request additional time 8 to conduct discovery either before responding to the Motion or before the Court rules on it. 9 Regarding service of process, Plaintiff bears the burden of establishing that service 10 was proper. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004) (“Once service is 11 challenged, plaintiffs bear the burden of establishing that service was valid under Rule 4.”). 12 Plaintiff did not need additional discovery to respond to CoreCivic Defendants’ Motion to 13 Dismiss. Rather, Plaintiff conceded in his response that service was not effectuated on 14 CoreCivic Defendants by noting that service was only attempted via email and FedEx. 15 (Dkt 157 at 10.) He failed to address CoreCivic Defendants’ arguments that such service was 16 improper under the applicable state and Federal Rules, and he fails to address the many cases 17 and other legal authority cited in support of those arguments. Plaintiff failed to carry his 18 burden to establish proper service on CoreCivic Defendants.
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1 Jacob B. Lee Nevada Bar No. 012428 2 STRUCK LOVE BOJANOWSKI & ACEDO, PLC 3100 West Ray Road, Suite 300 3 Chandler, Arizona 85226 Tel.: (480) 420-1600 4 Fax: (480) 420-1695 JLee@strucklove.com 5 Gina G. Winspear 6 Nevada Bar No. 005552 DENNETT WINSPEAR, LLP 7 3301 North Buffalo Drive, Suite 195 Las Vegas, Nevada 89129 8 Tel.: (702) 839-1100 Fax: (702) 839-1113 9 GWinspear@dennettwinspear.com 10 Attorneys for Defendants Walker, Samburg, Narvaez, and Morgan 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 GERARDO PEREZ, Case No. 2:21-cv-00075-RFB-MDC 14 Plaintiff, 15 CORECIVIC DEFENDANTS’ v. MOTION TO STAY 16 JENNIFER NASH, et al., 17 Defendants. 18 19 To promote judicial economy and the interests of Rule 1 of the Federal Rules of Civil 20 Procedure, Defendants Walker, Samburg, Narvaez and Morgan (“CoreCivic Defendants”) 21 request that the Court stay all case management deadlines set forth in the Joint Discovery Plan 22 and Scheduling Order (Dkt. 156) pending resolution of Defendants’ Motion to Dismiss 23 (Dkt. 155).1 A stay is warranted where: (1) CoreCivic Defendants’ Motion is potentially 24 dispositive of all claims against them; (2) discovery is unnecessary for the Court to rule on 25 CoreCivic Defendants’ Motion; (3) a “preliminary peek” reveals the likelihood that CoreCivic 26 Defendants’ Motion will be successful; and (4) a brief stay serves the interest of fairness by 27
1 The Motion to Dismiss is fully briefed and pending a ruling by the Court. 28 1 preventing the CoreCivic Defendants, who have never been served process in this case and 2 lack the requisite contacts with Nevada, from being haled into this Court and required to 3 participate in potentially unnecessary discovery, preserving their resources as well as 4 Plaintiff’s and the Court’s. 5 I. Introduction. 6 This Court lacks personal jurisdiction over CoreCivic Defendants, and for that reason, 7 they should not be subjected to discovery. Courts in this District have applied a presumption 8 that a pending motion to dismiss for lack of personal jurisdiction warrants staying or 9 restricting discovery. CoreCivic Defendants have never been properly served in this matter in 10 either their individual or official capacities. Nor are they Nevada residents and, as explained 11 more fully in Defendants’ Motion to Dismiss (Dkt. 155) and Reply (Dkt. 159), they do not 12 have sufficient contacts with the State of Nevada. Accordingly, CoreCivic Defendants should 13 not be subject to the burdens of defending themselves and conducting discovery pending the 14 Court’s resolution of the Motion to Dismiss. 15 II. Legal Argument. 16 The Court has broad discretion to control discovery to determine whether a stay is 17 appropriate. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (“[T]he power to stay 18 proceedings is incidental to the power inherent in every court to control the disposition of the 19 causes on its docket with economy of time and effort for itself, for counsel, and for litigants.”); 20 Little v. City of Seattle, 864 F.2d 681, 685 (9th Cir. 1988) (“The district court has wide 21 discretion in controlling discovery.”). This power is axiomatic in Federal Rule of Civil 22 Procedure 26(c)(1), which states that “[t]he court may, for good cause, issue an order to 23 protect a party or person from annoyance, embarrassment, oppression, or undue burden or 24 expense.” See Grammer v. Col. Hosp. Ass’n Shared Servs., Inc., 2015 WL 268780, *2 25 (D. Nev. Jan. 21, 2015) (Rule 26(c)(1) “includes the power to stay discovery”). 26 In deciding whether to grant a stay of discovery, the Court is guided by the objectives 27 of Rule 1 to ensure a “just, speedy, and inexpensive determination of every action.” Tradebay, 28 1 LLC v. eBay, Inc., 278 F.R.D. 597, 602–603 (D. Nev. 2011). Courts in this District have 2 formulated three considerations in determining whether to stay discovery pending resolution 3 of a potentially dispositive motion: (1) the pending motion is potentially dispositive; (2) the 4 potentially dispositive motion can be decided without additional discovery; and (3) the Court 5 has taken a “preliminary peek” at the merits of the potentially dispositive motion and is 6 convinced that the plaintiff will be unable to state a claim for relief. Id. 7 Each of these considerations tips in CoreCivic Defendants’ favor. As such, the Court 8 should stay case management deadlines pending resolution of CoreCivic Defendants’ Motion 9 to Dismiss. 10 A. If Granted, CoreCivic Defendants’ Motion Will Dispose of Plaintiff’s Case. 11 CoreCivic Defendants’ Motion to Dismiss, which was filed pursuant to Federal Rule 12 of Civil Procedure 12(b)(2)–(3) and (5), is potentially dispositive of all claims against them. 13 See SmarterSwipe, Inc. v. Navarrete, No. 224CV00299CDSMDC, 2024 WL 1344713, at *1 14 (D. Nev. Mar. 29, 2024) (12(b)(2) motion dispositive); Gallo v. Crawford, No. 2:03CV1548 15 RCJLRL, 2007 WL 773845, at *3 (D. Nev. Mar. 9, 2007) (12(b)(5) motion dispositive). As 16 established in Defendants’ Motion to Dismiss (Dkt. 155) and Reply (Dkt. 159), CoreCivic 17 Defendants do not have sufficient contact with Nevada, and the conduct Plaintiff complains 18 of occurred in Arizona, not Nevada. Accordingly, Nevada cannot exercise personal 19 jurisdiction over these Defendants. Further, Plaintiff failed to serve them. “A federal court 20 does not have jurisdiction over a defendant unless the defendant has been served properly 21 under Fed. R. Civ. P. 4.” Direct Mail Specialists v. Eclat Computerized Techs., Inc., 840 F.2d 22 685, 688 (9th Cir. 1988). Either way, Plaintiff’s claims against CoreCivic Defendants are 23 subject to dismissal. 24 Because CoreCivic Defendants’ Motion to Dismiss is potentially dispositive of all 25 claims against them, a stay pending its resolution is warranted. Tradebay, 278 F.R.D. at 26 602–603. 27 28 1 B. Additional Discovery is Not Needed. 2 In determining whether to order a stay, the Court will look to see whether a decision 3 can be made on the pending dispositive motion without the need for additional discovery. See 4 Money v. Banner Health, No. 3:11-cv-00800-LRH-WGC, 2012 WL 1190858, *12 5 (D. Nev. Apr. 9, 2012) (staying discovery where the court was equipped to decide a pending 6 dispositive motion “without further discovery”). Additional discovery is not required to 7 decide CoreCivic Defendants’ Motion to Dismiss, and Plaintiff did not request additional time 8 to conduct discovery either before responding to the Motion or before the Court rules on it. 9 Regarding service of process, Plaintiff bears the burden of establishing that service 10 was proper. See Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004) (“Once service is 11 challenged, plaintiffs bear the burden of establishing that service was valid under Rule 4.”). 12 Plaintiff did not need additional discovery to respond to CoreCivic Defendants’ Motion to 13 Dismiss. Rather, Plaintiff conceded in his response that service was not effectuated on 14 CoreCivic Defendants by noting that service was only attempted via email and FedEx. 15 (Dkt 157 at 10.) He failed to address CoreCivic Defendants’ arguments that such service was 16 improper under the applicable state and Federal Rules, and he fails to address the many cases 17 and other legal authority cited in support of those arguments. Plaintiff failed to carry his 18 burden to establish proper service on CoreCivic Defendants. 19 Plaintiff also did not seek additional discovery to respond to CoreCivic Defendants’ 20 Motion to Dismiss regarding lack of personal jurisdiction. Plaintiff rested on the Motion to 21 Dismiss briefing, which is now closed, and the Court can render a decision without the need 22 for additional discovery. As established in CoreCivic Defendants’ Motion, they do not have 23 sufficient contacts with Nevada to justify haling them into a Nevada court. “However minimal 24 the burden of defending in a foreign tribunal, a defendant may not be called upon to do so 25 unless he has had the ‘minimal contacts’ with that [s]tate that are a prerequisite to its exercise 26 of power over him.” Talentscale, Inc. v. Aery Aviation, LLC, No. 223CV00238CDSNJK, 27 2023 WL 4888435, at *5 (D. Nev. Aug. 1, 2023) (citing Hanson v. Denckla, 357 U.S. 235, 28 251 (1958)). 1 Because additional discovery is not needed to make a determination on the Motion to 2 Dismiss, a stay is warranted pending its outcome. 3 C. A “Preliminary Peek” Reveals that CoreCivic Defendants’ Motion is Likely to be Granted. 4 Courts in Nevada often take a “preliminary peek at the merits of the potentially 5 dispositive motion” to determine whether a stay on discovery is warranted. Kor Media Grp., 6 LLC v. Green, 294 F.R.D. 579, 581 (D. Nev. 2013); see Clark v. New Century Mortgage Co., 7 2017 WL 4453336, *2 (D. Nev. Oct. 4, 2017). In SVI, Inc. v. Supreme Corp., 8 No. 216CV01098JADNJK, 2017 WL 7725248, at *2 (D. Nev. Mar. 7, 2017), the court 9 granted a motion to stay discovery where this preliminary peek divulged (1) that the pending 10 motion to dismiss based on lack of personal jurisdiction, if granted, may resolve the primary 11 issues raised in Plaintiff’s complaint; (2) the motion to dismiss “can be decided without 12 additional discovery”; and (3) “a stay of discovery is warranted based upon the merits of 13 Defendant’s motion to dismiss.” Id. at *1; see also Int’l Markets Live, Inc. v. Profit Connect, 14 2019 WL 8161569, *1 (D. Nev. May 20, 2019) (applying second and third prongs of this test 15 to grant motion to stay discovery). 16 Applying this test to the instant case, a preliminary peek at CoreCivic Defendants’ 17 Motion to Dismiss justifies staying discovery. As set forth above, all three of these factors are 18 met here. First, if granted, the Motion to Dismiss would result in CoreCivic Defendants’ 19 dismissal. Second, resolution of the Motion to Dismiss does not require additional discovery. 20 Rather, accepting as true the allegations in Plaintiff’s Complaint, the Court will be able to 21 determine the propriety of personal jurisdiction over CoreCivic Defendants. Finally, the 22 merits of CoreCivic Defendants’ personal jurisdiction challenge warrant a stay of discovery. 23 The Complaint does not plead facts establishing either general or specific jurisdiction over 24 Defendants in Nevada; rather, all of Plaintiff’s allegations against CoreCivic Defendants arise 25 out of his incarceration in CoreCivic’s Saguaro Correctional Center (“SCC”) in Arizona, and 26 no CoreCivic Defendant expressly aimed any conduct at Nevada, let alone conduct sufficient 27 to establish specific jurisdiction in Nevada. 28 1 Because a preliminary peek at the Motion to Dismiss reveals that this Court lacks 2 personal jurisdiction over CoreCivic Defendants, the case should be stayed pending resolution 3 of the Motion. See Hologram USA, Inc. v. Pulse Evolution Corp., 2015 WL 1600768, *2 4 (D. Nev. Apr. 8, 2015) (“Because the Court is not convinced that the exercise of personal 5 jurisdiction over Defendants will be found to be proper by the district judge, it is appropriate 6 to stay discovery pending the resolution of the motion to dismiss.”). 7 D. A Motion Challenging Personal Jurisdiction Strongly Favors a Stay. 8 Where the underlying motion to dismiss is brought pursuant to Rule 12(b)(2) for lack 9 of personal jurisdiction, a less rigorous standard is applied, as “courts are more inclined to 10 stay discovery pending resolution of a motion to dismiss challenging personal jurisdiction 11 because it presents a ‘critical preliminary question.’” See, e.g., Kabo Tool Co. v. Porauto 12 Indus. Co., No. 2:12-cv-01859-LDG-NJK, 2013 WL 12321307, at *1 (D. Nev. Apr. 15, 2013) 13 (quoting AMC Fabrication, Inc. v. KRD Trucking W., Inc., No. 2:12-cv-00146-LDG-CWH, 14 2012 WL 4846152, at *2 (D. Nev. Oct. 10, 2012)). Thus, “a pending motion challenging 15 jurisdiction strongly favors a stay, or at minimum, limitations on discovery until the question 16 of jurisdiction is resolved.” See AMC Fabrication, Inc. 2012 WL 4846152, at *2. As this 17 Court previously explained in analyzing a motion to stay pending resolution of a dispositive 18 motion challenging jurisdiction: 19 A defendant should not be required to participate in burdensome and costly discovery in a forum that has no 20 jurisdiction over him or in a lawsuit brought in any forum when he is immune from suit as a matter of law. The purpose served 21 by laws that grant immunity from suit, in particular, would be significantly undermined if the defendant was required to bear 22 the burden and expense of litigation until he could obtain a court order establishing his immunity. The court also has an 23 interest in not providing a forum and being required to supervise discovery in a dispute over which it lacks subject 24 matter jurisdiction. 25 Grand Canyon Skywalk Development, LLC v. Steele, No. 2:13-cv-00596-JAD-GWF, 2014 26 WL 60216, at *4 (D. Nev. Jan. 7, 2014). For these reasons, ordering a stay in the matter 27 pending the outcome of the Motion to Dismiss will serve the interests of fairness to CoreCivic 28 1 | Defendants over which this Court does not have jurisdiction, and it will aid in accomplishing 2 || the inexpensive and speedy resolution of this case as to CoreCivic Defendants. 3 | THI. Conclusion. 4 For the reasons set forth above, CoreCivic Defendants respectfully request that this 5 || Court grant the Motion to Stay and stay all discovery and scheduling deadlines pending 6 || resolution of the Motion to Dismiss. 7 RESPECTFULLY SUBMITTED this 25" day of April 2024. 8 STRUCK LOVE BOJANOWSKI & ACEDO, PLC 9 By /s/ Jacob B. Lee Jacob B. Lee 10 3100 West Ray Road, Suite 300 Chandler, Arizona 85226 JLee@strucklove.com 12 Gina G. Winspear DENNETT WINSPEAR, LLP 13 3301 North Buffalo Drive, Suite 195 Las Vegas, NV 89129 14 GWinspear@dennettwinspear.com 15 Attorneys for Defendants Walker, Samburg, 16 Narvaez, and Morgan 17 IT IS SO ORDERED. The plaintiff filed a non-opposition. ECF No. 161. Parties shall file an Amended Joint discovery plan and scheduling order within 21 days 18 of the entry of order on defendants’ motion to dismiss (ECF No. 155), 19 unless the order grants the motion in its entirety and disposes of the action.
20 f co fff a 21 Z£ Pn, fo SM 22 re \ 23 Mf Hon. Maximilj4xo D. Cbuvilligf TI United States ‘lagistrat> Judge 24 Dated: 5/17/4 25 26 27 28