Opinion
No. 2: 12-cv-1583 TLN AC P
09-17-2014
KEVIN ALLEN, Plaintiff, v. T. VIRGA, et al., Defendants.
ORDER
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S. § 1983. In his second amended complaint, plaintiff alleges that defendants Rabbi Korik and Warden Virga denied him access to a kosher diet in violation of his First Amendment right to the free exercise of religion and his rights under the Religious Land Use and Institutionalized Persons Act. ECF No. 49. Pending before the court is defendants' motion for a stay of discovery pending adjudication of their motion to dismiss. ECF No. 54.
Defendants have brought a motion to dismiss plaintiff's second amended complaint pursuant to Fed. R. Civ. P. 12(b)(6), which plaintiff has opposed. ECF Nos. 52, 55.
I. Defendants' Motion for a Protective Order Staying Discovery
On May 15, 2014, defendants moved for a protective order to stay discovery, asserting that plaintiff had served his first set of interrogatories on defendants Korik and Virga. ECF No. 54-1 at 1. Defendants contend that they seek the stay, in the interests of judicial economy, because the motion is potentially dispositive of one or all of plaintiff's claims, can be decided absent additional discovery, could eliminate needless expenditure in responding to discovery requests and no prejudice would arise from a brief delay. Id. at 2-4. Plaintiff has not opposed the motion.
II. Standards Governing Motion to Stay
The scope of discovery under Fed.R.Civ.P. 26(b)(1) is broad. Discovery may be obtained as to "any nonprivileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter." Id. Discovery may extend to relevant information not admissible at trial "if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. The court, however, may limit discovery if it is "unreasonably cumulative or duplicative," or can be obtained from another source "that is more convenient, less burdensome, or less expensive"; or if the party who seeks discovery "has had ample opportunity to obtain the information by discovery"; or if the proposed discovery is overly burdensome. Fed.R.Civ.P. 26(b)(2)(C)(i), (ii) and (iii).
A party may seek a protective order that stays discovery pending resolution of a potentially dispositive motion such as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See, e.g., Wenger v. Monroe, 282 F.3d 1068, 1077 (9th Cir.2002) (affirming district court's grant of protective order staying discovery pending resolution of motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6)). District courts may exercise "wide discretion in controlling discovery." Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir.1988).
The Federal Rules provide that good cause is required in order for a party to obtain a protective order. Fed. R. Civ. P. 26(c); Kiblen v. Retail Credit Co., 76 F.R.D. 402, 404 (E.D. Wash. 1977). "Good cause" exists when justice requires the protection of "a party or person from any annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(1). To prevail on a motion for a protective order, the party seeking the protection has the burden to demonstrate "particular and specific demonstration[s] of fact, as distinguished from conclusory statements . . . ." Twin City Fire Ins. Co. v. Employers Ins. of Wausau, 124 F.R.D. 652, 653 (D.Nev. 1989); Kamp Implement Co. v. J.I. Case Co., 630 F. Supp. 218, 219 (D. Mont. 1986).
The Ninth Circuit has not articulated a clear standard for staying discovery in the face of a pending, potentially dispositive motion. Mlejnecky v. Olympus Imaging Am., Inc., No. 2:10-cv-2630-JAM-KJN, 2011 WL 489743 at *6 (E.D. Cal. 2011). "However, federal district courts in California have applied a two-part test when evaluating such a request for a stay." Id.; Lowery v. F.A.A., 1994 WL 912632, *3 (E.D. Cal. 1994). "First, the pending motion must be potentially dispositive of the entire case, or at least dispositive on the issue at which discovery is aimed." Mlejnecky, *6. In the second part of the test, the court must determine whether the potentially dispositive pending motion can be decided without additional discovery. Id. If these two prongs are satisfied by the moving party, the court may issue a protective order. Id. If either prong of the test is not met, discovery should proceed. Id.
III. Discussion
In the instant case, defendants contend that their pending motion is potentially dispositive or, at a minimum, possibly dispositive on the issue at which the discovery is directed. ECF No. 54-1 at 3 (citing Mlejnecky, 2011 WL 489743 at *6 (citations omitted)). They maintain that the motion can be decided without additional discovery because on a motion to dismiss, the court considers the allegations of the operative complaint and not evidence acquired by way of discovery. Id. at 4 (citing Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633, 654 (U.S. 1999); Mlejnecky at *10). Even if the motion does not resolve this case, as defendants further observe, if any portion of their motion is granted, the claims and the scope of permissible discovery may be narrowed. Id.
The court finds that both prongs of the test are met in that the motion is potentially case dispositive or at a minimum may narrow the issues. In addition, the motion can be adjudicated without further discovery.
Moreover, a Scheduling and Discovery Order has not yet issued in this case. This court had imposed a stay on discovery as to defendant Korik, ECF No. 47, which was lifted upon the court's screening of the second amended complaint. ECF No. 51. However, the court now finds that defendants should not be subjected to the undue burden or expense of responding to discovery which may ultimately prove not to be reasonably calculated to lead to the discovery of relevant evidence.
Accordingly, IT IS ORDERED that defendants' motion for a protective order staying discovery (ECF No. 54) is GRANTED. Discovery in this case is stayed until resolution of the pending motion to dismiss. DATED: September 17, 2014
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE