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No Stay of Discovery in Jot

Posted by Thomas P. Howard | Nov 18, 2021 | 0 Comments

By James Juo.

A defendant sometimes will file a motion to dismiss, and then move to stay discovery pending a decision on the motion to dismiss on the theory that if Defendant prevails on its motion to dismiss, the cost of discovery incurred in the meantime may be unnecessary. In the U.S. District Court for the District of Colorado, such stays typically are not granted unless the motion to dismiss raises jurisdictional or qualified immunity concerns. See Myers v. Koopman, No. 09-CV-02802-REB-MEH, 2010 WL 234877, at *2 (D. Colo. Jan. 19, 2010) (“Although Defendants have filed motions that may dispose of the Plaintiffs' case, the motions are not primarily based on grounds typically warranting a stay, such as questions of the Court's jurisdiction or immunity.”); see also Marks v. Lynch, No. 16-CV-02106-WYD-MEH, 2017 WL 491190, at *3 (D. Colo. Feb. 6, 2017).

The decision to stay discovery rests within the sound discretion of the trial court. Wang v. Hsu, 919 F.2d 130, 130 (10th Cir. 1990); see Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir. 2010) (“Discovery and scheduling are matters within the district court's broad discretion.”) (citation omitted). The Federal Rules of Civil Procedure do not expressly provide for a stay of proceedings, but Fed. R. Civ. P. 26(c) does permit the court, upon a showing of good cause, to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”

In Jot Labs Inc. v. OneBy Coffee Inc., No. 21-cv-01364, 2021 WL 5316827 (D. Colo. Nov. 8, 2021), the defendant had filed a Rule 12(b)(6) motion to dismiss, and then filed a motion for a protective order to stay discovery pending a decision on that motion to dismiss. The Court denied the motion for a stay of discovery while the motion to dismiss remained pending and undecided.

In determining whether to stay discovery, the Colorado district court considers the five factors set forth in String Cheese Incident, LLC v. Stylus Shows, Inc., No. 02-cv-01934-LTB-PAC, 2006 WL 894955, at *2 (D. Colo. Mar. 30, 2006):

(1) plaintiff's interests in proceeding expeditiously with the civil action and the potential prejudice to plaintiff of a delay; (2) the burden on the defendants; (3) the convenience to the court; (4) the interests of persons not parties to the civil litigation; and (5) the public interest.

See also Hernandez v. Asset Acceptance, LLC, 970 F. Supp. 2d 1194, 1205 (D. Colo. 2013) (weighing the factors and finding a stay appropriate in that case).

A plaintiff may have a significant interest in proceeding with discovery and moving its case forward. Capture Eleven Group v. Otter Products, LLC, No. 20-CV-02251-RM-KLM, 2021 WL 1697802, at *1 (D. Colo. Apr. 29, 2021). Even if plaintiff does not identify a specific need to pursue discovery at this time, the court may still find this factor weighs in Plaintiff's favor. Jot Labs, 2021 WL 5316827 at *2.

For the burden on defendant, unless the motion to dismiss raises jurisdictional or qualified immunity concerns; or a need for a ruling to clarify the nature of the claims or the viability of the lawsuit, see Abdulmutallab v. Sessions, No. 17-cv-02493-RM-KMT, 2018 WL 11225175 (D. Colo. Feb. 8, 2018) and Hehl-Gomez v. NASA Space Center Shuttle, No. 08-cv-02152-MSK-MEH, 2008 WL 5216245 (D. Colo. Dec. 10, 2008); “the mere fact that a defendant has moved for dismissal under Fed. R. Civ. P. 12(b)(6) for the failure to state a plausible claim for relief does not compel staying discovery.” Jot Labs, 2021 WL 5316827 at *2 (citing Capture Eleven, 2021 WL 1697802 at *2; Marks, 2017 WL 491190 at *3). “Whether Defendant will prevail on that motion [to dismiss] and in a way that wholly forecloses any further litigation is too speculative a basis upon which to grant the requested stay.” Id. at *3.

For the Court's interests, judicial economy concerns are not implicated by a run-of-the-mill Rule 12(b)(6) motion, especially where the plaintiff's claims are relatively straight-forward, and the pleadings have already been amended to refine the lawsuit's scope; and both sides have the benefit of legal counsel. Jot Labs, 2021 WL 5316827 at *3.

As for the public's interest, it may be deemed neutral even though the plaintiff has a general interest in the expeditious resolution of a lawsuit, and the public has a general interest in a justice system free of delay. Jot Labs, 2021 WL 5316827 at *3 (citing Capture Eleven, 2021 WL 1697802 at *2).

About the Author

Thomas P. Howard

Thomas Howard is an experienced trial lawyer that handles intellectual property litigation nationwide, including copyright, trademark, trade secret and patent litigation, as well as complex civil litigation, including breach of contract, interference with contract, breach of fiduciary duty, conspiracy, fraud and fraudulent transfer of assets.


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