UNITED STATES DISTRICT COURT 1 2 DISTRICT OF NEVADA 3 4 DOUGLAS RICHEY, on behalf of himself 5 and all other similarly situated, 3:19-cv-00192-MMD-CLB 6 Plaintiff, v. 7 ORDER 8 AXON ENTERPRISES, INC., formerly d/b/a TASER INTERNATIONAL, INC. 9 Defendant. 10 11 12 Before the court is the motion of defendant Axon Enterprises, Inc. (“Defendant”) to 13 stay discovery pending the Court’s ruling on Defendant’s motion to strike. (ECF No. 64). 14 Plaintiff responded, (ECF No. 65.), and Defendant replied. (ECF No. 72). The court has 15 reviewed the relevant pleadings and papers, and, for the reasons set forth below, the court 16 grants the motion, in part, and denies, the motion, in part. 17 I. BACKGROUND 18 This case concerns the alleged defect of Defendant’s model “C2” consumer CEW1 19 for personal self-defense that discharged while in the Plaintiff’s pocket. (ECF No. 70). 20 Plaintiff contacted Defendant’s customer service representative to inquire about the 21 problem. (Id. at 8). The representative explained that the engineers are currently aware of 22 the safety switch active activation issue and are working on a solution. (Id.). On February 23 14, 2020, Plaintiff filed their First Amended Complaint (“FAC”). (ECF No. 54). On April 14, 24 2020, Defendant filed the motion to strike certain allegations contained in the FAC. (ECF 25 No. 61). Defendant also filed a motion for a limited stay of discovery to stay any discovery 26 27 1 Conducted Electrical Weapon from TASER 1 from proceeding on those allegations Defendant’s had moved to strike, which Plaintiffs 2 opposed. (ECF Nos. 64, 65). 3 After these motions were filed, the parties stipulated to Plaintiff filing a Second 4 Amended Complaint (“SAC”), which was granted. (ECF Nos. 68, 69). The SAC removed 5 some, but not all, of the allegations Defendant had moved to strike from the FAC. Ultimately, 6 Plaintiff then filed the SAC on May 27, 2020. (ECF No. 70). At this point, the only operative 7 pleading in the case was the SAC – not the FAC. In spite of this, Defendants did not withdraw 8 the motion to strike aspects of the FAC, or the motion to stay. Rather, the parties simply 9 continued with briefing on both motions -- shifting to only those allegations in the SAC the 10 parties disputed. Proceeding in this way has placed the court in the position of attempting 11 to discern what aspects of the SAC Defendant is seeking to strike and, significant to this 12 order, what aspects of discovery Defendant now seeks to stay. 13 II. DISCUSSION 14 Based on the court’s review of the SAC and the various filings related to the motions 15 to strike and stay, it is the court’s interpretation that Defendant seeks to only stay one limited 16 aspect of discovery related to Defendant’s sales of law enforcement models to state, federal 17 and local agencies. (See ECF No. 76 at 2) (Defendant’s reply in support of motion to strike 18 asserting there is only “one” remaining issue for the court to decide relative to the motion to 19 strike: whether Richey is legally barred from represented state, federal, and local law 20 enforcement agencies.) 21 Courts have broad discretionary power to control discovery, including the decision to 22 allow or deny discovery. See e.g., Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). 23 Under the Federal Rules of Civil Procedure, the court may stay or limit the scope of 24 discovery upon a showing of good cause by the moving party. Fed. R. Civ. P. 26(c). Meeting 25 the “good cause” requirement is no easy task. The party seeking the stay must make a 26 “strong showing” as to why discovery should be denied; broad statements about 27 inconvenience, cost, or a need for protection are insufficient. Blankenship v. Hearst Corp., 1 519 F.2d 418, 429 (9th Cir. 1975); Ministerio Roca Solida v. U.S. Dep’t of Fish & Wildlife, 2 288 F.R.D. 500, 503 (D. Nev. 2013). 3 To determine if a stay of discovery is appropriate, the court considers the following 4 factors: (1) whether the pending motion is potentially dispositive of the case; (2) whether the 5 motion can be decided without additional discovery; and, (3) whether the court is convinced 6 that the plaintiff cannot state a claim for relief. Kor Media Group, LLC v. Green, 294 F.R.D. 7 579, 581 (D. Nev. 2013); First Am. Title Ins. Co. v. Commerce Assocs., LLC, No. 2:15-cv- 8 832-RFB-VCF, 2015 WL 7188387, at *2 (D. Nev. Nov. 13, 2015). In order to determine 9 whether the plaintiff can state a claim, the court must take a “preliminary peek” at the merits 10 of the underlying dispositive motion – in this case the motion to strike. Tradebay, LLC v. 11 eBay, Inc., 278 F.R.D. 597, 602-03 (D. Nev. 2011). The “preliminary peek” does not 12 prejudge the outcome of the motion; it merely evaluates whether an order staying discovery 13 is warranted. Id. at 603. In doing so, the court considers the goal of Federal Rule of Civil 14 Procedure 1, which provides that the Rules should “be construed, administered, and 15 employed by the court and the parties to secure the just, speedy, and inexpensive 16 determination of every action.” With Rule 1 as its prime directive, the court must decide 17 whether it is more just to speed the parties along in discovery while a dispositive motion is 18 pending or to delay discovery to accomplish the inexpensive determination of the case. See 19 Turner Broadcasting System, Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997); 20 see also Twin City Fire Ins. v. Employers Insurance of Wausau, 124 F.R.D. 652, 653 (D. 21 Nev. 1989). 22 In this instance, the parties appear to agree that the motion to strike would be 23 dispositive as to the issues Defendant seeks to strike from the SAC and discovery is not 24 needed to decide the motion to stay. Therefore, the court will focus on the last – i.e., whether 25 the court is convinced that the motion to strike is meritorious and whether a limited stay of 26 discovery is appropriate. 27 1 Defendant moves the court to enter a limited stay of discovery related to its sales of 2 law enforcement models to federal, state, and local law enforcement agencies. Defendant 3 asserts Plaintiff cannot represent federal, state, and local law enforcement agencies in this 4 class action. (ECF No. 64 at 13). However, after reviewing the filings related to the motion to strike and conducting independent research, it appears that this exact issue has not been 5 addressed by the Ninth Circuit. In fact, it appears to be a jurisdictional split related to 6 whether federal, state, or local agencies can be included in a class action lawsuit as 7 plaintiffs. For example, In re Flonase Antitrust Litigation, the Eastern District of 8 Pennsylvania allowed class certification which permitted the United States government and 9 certain state governments and their agencies to be included as class members to the extent 10 they purchased fluticasone for their employees. No. 08-3301, 2015 WL 9273274, at *1 (E.D. 11 Penn. 2015); see also S. States Police Benevolent Ass'n v. First Choice Armor & Equip., 12 241 F.R.D. 85, 93 (D. Mass. 2007) (stating courts may certify state agencies as part of a 13 class action so long as there is an opportunity to opt out of the class); In re Lupron Mktg. & 14 Sales Practices Litig., 228 F.R.D. 75 (D. Mass 2005) (certifying a class of all persons or 15 entities who paid for Lupron during a period from January 1, 1991, through September 30, 16 2001).
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UNITED STATES DISTRICT COURT 1 2 DISTRICT OF NEVADA 3 4 DOUGLAS RICHEY, on behalf of himself 5 and all other similarly situated, 3:19-cv-00192-MMD-CLB 6 Plaintiff, v. 7 ORDER 8 AXON ENTERPRISES, INC., formerly d/b/a TASER INTERNATIONAL, INC. 9 Defendant. 10 11 12 Before the court is the motion of defendant Axon Enterprises, Inc. (“Defendant”) to 13 stay discovery pending the Court’s ruling on Defendant’s motion to strike. (ECF No. 64). 14 Plaintiff responded, (ECF No. 65.), and Defendant replied. (ECF No. 72). The court has 15 reviewed the relevant pleadings and papers, and, for the reasons set forth below, the court 16 grants the motion, in part, and denies, the motion, in part. 17 I. BACKGROUND 18 This case concerns the alleged defect of Defendant’s model “C2” consumer CEW1 19 for personal self-defense that discharged while in the Plaintiff’s pocket. (ECF No. 70). 20 Plaintiff contacted Defendant’s customer service representative to inquire about the 21 problem. (Id. at 8). The representative explained that the engineers are currently aware of 22 the safety switch active activation issue and are working on a solution. (Id.). On February 23 14, 2020, Plaintiff filed their First Amended Complaint (“FAC”). (ECF No. 54). On April 14, 24 2020, Defendant filed the motion to strike certain allegations contained in the FAC. (ECF 25 No. 61). Defendant also filed a motion for a limited stay of discovery to stay any discovery 26 27 1 Conducted Electrical Weapon from TASER 1 from proceeding on those allegations Defendant’s had moved to strike, which Plaintiffs 2 opposed. (ECF Nos. 64, 65). 3 After these motions were filed, the parties stipulated to Plaintiff filing a Second 4 Amended Complaint (“SAC”), which was granted. (ECF Nos. 68, 69). The SAC removed 5 some, but not all, of the allegations Defendant had moved to strike from the FAC. Ultimately, 6 Plaintiff then filed the SAC on May 27, 2020. (ECF No. 70). At this point, the only operative 7 pleading in the case was the SAC – not the FAC. In spite of this, Defendants did not withdraw 8 the motion to strike aspects of the FAC, or the motion to stay. Rather, the parties simply 9 continued with briefing on both motions -- shifting to only those allegations in the SAC the 10 parties disputed. Proceeding in this way has placed the court in the position of attempting 11 to discern what aspects of the SAC Defendant is seeking to strike and, significant to this 12 order, what aspects of discovery Defendant now seeks to stay. 13 II. DISCUSSION 14 Based on the court’s review of the SAC and the various filings related to the motions 15 to strike and stay, it is the court’s interpretation that Defendant seeks to only stay one limited 16 aspect of discovery related to Defendant’s sales of law enforcement models to state, federal 17 and local agencies. (See ECF No. 76 at 2) (Defendant’s reply in support of motion to strike 18 asserting there is only “one” remaining issue for the court to decide relative to the motion to 19 strike: whether Richey is legally barred from represented state, federal, and local law 20 enforcement agencies.) 21 Courts have broad discretionary power to control discovery, including the decision to 22 allow or deny discovery. See e.g., Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). 23 Under the Federal Rules of Civil Procedure, the court may stay or limit the scope of 24 discovery upon a showing of good cause by the moving party. Fed. R. Civ. P. 26(c). Meeting 25 the “good cause” requirement is no easy task. The party seeking the stay must make a 26 “strong showing” as to why discovery should be denied; broad statements about 27 inconvenience, cost, or a need for protection are insufficient. Blankenship v. Hearst Corp., 1 519 F.2d 418, 429 (9th Cir. 1975); Ministerio Roca Solida v. U.S. Dep’t of Fish & Wildlife, 2 288 F.R.D. 500, 503 (D. Nev. 2013). 3 To determine if a stay of discovery is appropriate, the court considers the following 4 factors: (1) whether the pending motion is potentially dispositive of the case; (2) whether the 5 motion can be decided without additional discovery; and, (3) whether the court is convinced 6 that the plaintiff cannot state a claim for relief. Kor Media Group, LLC v. Green, 294 F.R.D. 7 579, 581 (D. Nev. 2013); First Am. Title Ins. Co. v. Commerce Assocs., LLC, No. 2:15-cv- 8 832-RFB-VCF, 2015 WL 7188387, at *2 (D. Nev. Nov. 13, 2015). In order to determine 9 whether the plaintiff can state a claim, the court must take a “preliminary peek” at the merits 10 of the underlying dispositive motion – in this case the motion to strike. Tradebay, LLC v. 11 eBay, Inc., 278 F.R.D. 597, 602-03 (D. Nev. 2011). The “preliminary peek” does not 12 prejudge the outcome of the motion; it merely evaluates whether an order staying discovery 13 is warranted. Id. at 603. In doing so, the court considers the goal of Federal Rule of Civil 14 Procedure 1, which provides that the Rules should “be construed, administered, and 15 employed by the court and the parties to secure the just, speedy, and inexpensive 16 determination of every action.” With Rule 1 as its prime directive, the court must decide 17 whether it is more just to speed the parties along in discovery while a dispositive motion is 18 pending or to delay discovery to accomplish the inexpensive determination of the case. See 19 Turner Broadcasting System, Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997); 20 see also Twin City Fire Ins. v. Employers Insurance of Wausau, 124 F.R.D. 652, 653 (D. 21 Nev. 1989). 22 In this instance, the parties appear to agree that the motion to strike would be 23 dispositive as to the issues Defendant seeks to strike from the SAC and discovery is not 24 needed to decide the motion to stay. Therefore, the court will focus on the last – i.e., whether 25 the court is convinced that the motion to strike is meritorious and whether a limited stay of 26 discovery is appropriate. 27 1 Defendant moves the court to enter a limited stay of discovery related to its sales of 2 law enforcement models to federal, state, and local law enforcement agencies. Defendant 3 asserts Plaintiff cannot represent federal, state, and local law enforcement agencies in this 4 class action. (ECF No. 64 at 13). However, after reviewing the filings related to the motion to strike and conducting independent research, it appears that this exact issue has not been 5 addressed by the Ninth Circuit. In fact, it appears to be a jurisdictional split related to 6 whether federal, state, or local agencies can be included in a class action lawsuit as 7 plaintiffs. For example, In re Flonase Antitrust Litigation, the Eastern District of 8 Pennsylvania allowed class certification which permitted the United States government and 9 certain state governments and their agencies to be included as class members to the extent 10 they purchased fluticasone for their employees. No. 08-3301, 2015 WL 9273274, at *1 (E.D. 11 Penn. 2015); see also S. States Police Benevolent Ass'n v. First Choice Armor & Equip., 12 241 F.R.D. 85, 93 (D. Mass. 2007) (stating courts may certify state agencies as part of a 13 class action so long as there is an opportunity to opt out of the class); In re Lupron Mktg. & 14 Sales Practices Litig., 228 F.R.D. 75 (D. Mass 2005) (certifying a class of all persons or 15 entities who paid for Lupron during a period from January 1, 1991, through September 30, 16 2001). 17 However, In re McKesson Governmental Entities Average Wholesale Price 18 Litigation, the court did not allow federal or state entities to be certified as plaintiffs in the 19 class action. 767 F. Supp. 2d 263, 266 (D Mass. 2011); see also Walker v. Liggett Grp., 20 Inc., 982 F. Supp. 1208, 1210-11 (S.D. W. Va. 1997) (stating that no person or entity other 21 than the Attorney General of that state is authorized to represent that state). Therefore, 22 federal, state, and local agencies have, in some jurisdictions, been included in class actions as a plaintiff. 23 Moreover, Defendant argues in the motion to strike that the Eleventh Amendment 24 “generally bars federal court jurisdiction over the States and their Agencies.” (ECF No. 61 25 at 23). While this is true, the Eleventh Amendment has generally been interpreted as 26 protection for States from suits brought by citizens in federal court. Douglas v. Cal. Dep’t of 27 1 Youth Auth., 271 F.3d 812, 817 (9th Cir. 2001) (quoting Hans v. Louisiana, 134 U.S. 1,15 2 (1890)); see also Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) 3 (stating that Eleventh Amendment immunity is an affirmative defense) (emphasis added); 4 Katz v. Regents of the Univ. of Cal., 229 F.3d 831, 834 (9th Cir. 2000) (stating that the 5 Eleventh Amendment grants the State a legal power to assert a sovereign immunity 6 defense) (emphasis added). In other words, the Eleventh Amendment is generally used 7 as a defense from suit – not as a bar to bring suit. However, the court was unable to locate 8 any binding case law holding that the Eleventh Amendment precludes states from being 9 plaintiffs in a class action or that states that the Eleventh Amendment cannot be applied in 10 this manner. 11 This motion to stay creates a difficult situation. The undersigned is not entirely 12 convinced that Defendant’s motion to strike will be granted. However, it does appear that 13 the issues presented by the motion to strike are novel and present a variety of issues that 14 appear to be legally unsettled. Moreover, how the undersigned sees the issues presented 15 by the motion to strike may be very different from how the assigned district judge will see 16 these same issues. Ultimately, it is the assigned district judge who will make the ultimate 17 determination on whether the issues related to whether Plaintiff can represent state, federal 18 and local law enforcement agencies in this case. Although the undersigned may not be 19 entirely convinced that the motion to strike will be granted, the court must also consider 20 whether, as a general matter, granting a limited stay is nonetheless appropriate under the 21 circumstances. In this case, after considering all of the facts and circumstances related to 22 the limited request for a stay, the court finds it is more prudent to grant the requested stay, 23 which appears to limited to a fairly isolated issue until the assigned district judge makes a 24 determination of the merits of Defendant’s motion to strike. 25 Therefore, the court will grant a limited stay of discovery requested by Defendant at 26 this time. However, this stay does not apply to any other aspects of discovery, including 27 1 || discovery related to the sales of law enforcement models to individual consumers — whether 2 those consumers are members of law enforcement or not. 3 ||II. CONCLUSION 4 Accordingly, the motion for stay pending ruling on the motion to strike (ECF No. 64) 5 ||is GRANTED in part and DENIED in part as stated above. 6 IT IS SO ORDERED. 7 DATED: July 6, 2020. . 8 9 online 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27