Opinion
CASE NO.: 2:16-cv-02810-APG-VCF
04-18-2017
JOHN MAHLER, Plaintiff, v. BARBARA BIELECKI, NEVADA EMPLOYMENT SECURITY DIVISION, STATE OF NEVADA, RENEE OLSON, in her capacity as ADMINISTRATOR of the NEVADA EMPLOYMENT SECURITY DIVISION; KATIE JOHNSON, in her capacity as Chairwoman of the NEVADA EMPLOYMENT SECURITY DIVISION BOARD OF REVIEW, and DOES 1-10, Defendants.
This proposed order was prepared and submitted by: LAURIE L. TROTTER, ESQ. Nevada State Bar No. 8696 STATE OF NEVADA, DETR/ESD 1340 South Curry Street Carson City, NV 89703 Telephone No.: (775) 684-6317 Facsimile No.: (775) 684-6344 Attorney for Defendants
LAURIE L. TROTTER, ESQ.
Nevada State Bar No. 8696
STATE OF NEVADA, Department of
Employment, Training & Rehabilitation (DETR),
Employment Security Division (ESD)
1340 South Curry Street
Carson City, Nevada 89703
Telephone No.: (775) 684-6317
Facsimile No.: (775) 684-6344
Attorney for DETR/ESD MOTION TO STAY DISCOVERY
COME NOW, Defendants Renee Olson, Administrator, State of Nevada, Department of Employment, Training and Rehabilitation, Employment Security Division; Administrative Tribunal referee, Barbara Bielecki (Referee Bielecki); and, Katie Johnson, Chairwoman of the Employment Security Division Board of Review (hereinafter, collectively, "ESD"), by and through Division Senior Legal Counsel, Laurie L. Trotter, Esq., and hereby move this Court to stay discovery in this matter pending its ruling on the Defendants' Motion To Dismiss. This Motion seeks to stay discovery in the civil rights case commenced on December 6, 2016, when Plaintiff John Mahler (Mahler) filed his "Civil Rights Complaint Pursuant to 42 U.S.C. § 1983" (Complaint). This Motion is made and based on the accompanying Memorandum of Points and Authorities, as well as all papers and pleadings on file herein.
MEMORANDUM OF POINTS AND AUTHORITIES
I. FACTS
Mahler alleges in the instant civil rights complaint that on December 7, 2014, about two (2) years before the commencement of this action, ESD Administrative Tribunal Referee Barbara Bielecki (Referee Bielecki) violated his due process rights. Referee Bielecki did so by ruling against him during the state administrative hearing that focused on his alleged right to unemployment benefits.
Mahler sought judicial review of Referee Bielecki's decision in this state administrative matter and prevailed at the state district court level when the state district court, by way of an order entered on March 14, 2017, remanded the matter for a new hearing before a different ESD referee. This case remains pending at the ESD Administrative Tribunal level.
The instant case and the underlying state administrative case involve the same parties and stem from the same events. The federal due process rights issue is raised in both. ESD and Referee Bielecki moved to dismiss this case on March 17, 2017, raising issues of jurisdiction, immunity, statute of limitations.
II. ARGUMENT
The purpose of Federal Rule of Civil Procedure 12(b)(6) is to enable defendants to challenge the legal sufficiency of a complaint without subjecting themselves to discovery. Rutman Wine Co. v. E & J Gallo Winery, 829 F.2d 729, 738 (9th Cir.1987). The Ninth Circuit has held that discovery at the pleading stage is only appropriate where factual issues are raised by a Rule 12(b) motion. A pending Rule 12(b) motion to dismiss is sufficient cause for granting a protective order. Wagh v. Metris Direct, Inc., 363 F .3d 821, 829 (9th Cir.2003), overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d 541, 551 (9th Cir.2007) (en banc). Dispositive motions which raise issues of jurisdiction or immunity are commonly situations in which federal courts determine that staying discovery pending a ruling on a dispositive motion is appropriate. Wood v. McEwen, 644 F.2d 797, 801 (9th Cir.1981) (per curium). The United States Supreme Court has squarely held that until the threshold issue of immunity is resolved, discovery should not proceed. Harlowe v. Fitzgerald, 457 U.S. 800, 818 (1982). Immunity includes not only immunity from liability, but immunity from participating in a lawsuit.
While issues of jurisdiction and immunity are being determined, pretrial discovery should be avoided. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). ESD's and Referee Bielecki's Motion to Dismiss, which raises issues of jurisdiction and immunity, is dispositive of the entire case. It can be decided without additional discovery.
III. CONCLUSION
Based on the foregoing, Defendants respectfully request that this Court stay discovery pending its ruling on ESD's and Referee Bielecki's Motion To Dismiss.
DATED this 17th day of March, 2017.
/s/ Laurie L . Trotter
LAURIE L. TROTTER, ESQ.
Nevada State Bar No. 8696
STATE OF NEVADA, DETR/ESD
1340 South Curry Street
Carson City, NV 89703
Telephone No.: (775) 684-6317
Facsimile No.: (775) 684-6344
Attorney for Defendants
CERTIFICATE OF SERVICE
Pursuant to Fed. R. Civ. P. Rule 5(b), I hereby certify that I am an employee of the State of Nevada, over the age of 18 years; and that on the date hereinbelow set forth, I served a true and correct copy of the foregoing MOTION TO STAY DISCOVERY, together with a copy of the proposed ORDER STAYING DISCOVERY by placing the same within an envelope and depositing said envelope with the State of Nevada mail for postage and mailing from Carson City, Nevada, addressed for delivery as follows:
John Mahler
8705 Prairie Hill Drive
Las Vegas, NV 89134
Plaintiff, pro se
DATED this 17th day of March, 2017.
/s/ Sheri C . Ihler
SHERI C. IHLER
PROPOSED
ORDER
ORDER STAYING DISCOVERY
Plaintiff John Mahler's (Plaintiff) filed a "Civil Rights Complaint Pursuant to 42 U.S.C. § 1983" (Complaint) herein on December 6, 2016. / / /
On March 17, 2017, Defendants Renee Olson, Administrator, State of Nevada, Department of Employment, Training and Rehabilitation, Employment Security Division; ESD's Administrative Tribunal Referee, Barbara Bielecki (Referee Bielecki); and Katie Johnson, Chairwoman of the Employment Security Division Board of Review (collectively ESD) filed a Motion To Dismiss.
The purpose of Federal Rule of Civil Procedure 12(b)(6) is to enable defendants to challenge the legal sufficiency of a complaint without subjecting themselves to discovery. Rutman Wine Co. v. E & J Gallo Winery, 829 F.2d 729, 738 (9th Cir.1987). Discovery at the pleading stage is only appropriate where factual issues are raised. A pending Rule 12(b) motion to dismiss is sufficient cause for granting a protective order. Wagh v. Metris Direct, Inc., 363 F .3d 821, 829 (9th Cir.2003), overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d 541, 551 (9th Cir.2007) (en banc). Dispositive motions which raise issues of jurisdiction or immunity are commonly situations in which federal courts determine that staying discovery pending a ruling on a dispositive motion is appropriate. Wood v. McEwen, 644 F.2d 797, 801 (9th Cir.1981) (per curium).
Referee Bielecki's and ESD's Motion To Dismiss raises issues of jurisdiction and immunity and, if granted, would be dispositive of the entire case. / / / / / / / / / It can be decided without discovery. Accordingly, a stay of discovery pending a ruling on ESD's and Referee Bielecki's motion to dismiss will not unduly prejudice any party or present a clear tactical disadvantage to the nonmoving party.
GOOD CAUSE APPEARING THEREFOR,
IT IS HEREBY ORDERED that discovery in this matter be, and the same hereby is, stayed pending a ruling on ESD's Referee Bielecki's motion to dismiss.
DATED this 18th day of April, 2017.
/s/_________
HONORABLE CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE Under LR 7-2(d), the failure of an opposing party to file points and authorities in response to any motion, except a motion under Fed. R. Civ. P. 56 or a motion for attorney's fees, constitutes a consent to the granting of the motion. To date, no opposition has been filed. Accordingly, IT IS HEREBY ORDERED that the Motion to Stay Discovery is GRANTED. This proposed order was prepared
and submitted by: /s/ Laurie L . Trotter
LAURIE L. TROTTER, ESQ.
Nevada State Bar No. 8696
STATE OF NEVADA, DETR/ESD
1340 South Curry Street
Carson City, NV 89703
Telephone No.: (775) 684-6317
Facsimile No.: (775) 684-6344
Attorney for Defendants