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Blackmon v. Tobias

United States District Court, Ninth Circuit, California, N.D. California, Oakland Division
Nov 15, 2011
C 11-2853 SBA (N.D. Cal. Nov. 15, 2011)

Opinion


JAMES BLACKMON, an individual; and JOHN GRAY, an individual, Plaintiffs, v. GLENN TOBIAS, et al., Defendants. No. C 11-2853 SBA United States District Court, N.D. California, Oakland Division. November 15, 2011

          ORDER

         Dkt. 78, 79

          SAUNDRA BROWN ARMSTRONG, District Judge.

         On October 21, 2011, the parties submitted a letter brief to Magistrate Judge Laurel Beeler, the assigned discovery magistrate, in which the Tobias Defendants seek a protective order with respect to a third party subpoena served by Plaintiffs on Bank of America. See Dkt. 78, 79. In part, the Tobias Defendants argue that discovery concerning banking records described in the subpoena is premature until the Court rules on their motion to dismiss, which is scheduled for hearing on January 12, 2012. The question of whether discovery is premature or should be stayed is for the district court, as opposed to the discovery magistrate, to decide. Therefore, the Court considers this discrete issue.

         Federal Rule of Civil Procedure 26(d)(1) provides that "[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), ..." The record indicates that the parties conducted their Rule 26(f) conference on September 1, 2011. Dkt. 43 at 1. As such, the parties are free to engage in discovery. See Fed.R.Civ.P. 26(d)(1); Cotton v. City of Eureka, No. C 08-4386 SBA, 2010 WL 2382255, at *2 n.2 (N.D. Cal. June 10, 2010). To the extent that the Tobias Defendants' motion for protective order is construed as a motion to stay discovery, the Court notes that the pendency of a motion to dismiss, standing alone, does not present a compelling reason to stay discovery. In essence, the Tobias Defendants' position is that if their motion is granted, there will be no need to conduct discovery. However, such an argument could be made in every case in which a motion to dismiss has been filed. As such, the Court is unpersuaded, based on the arguments presented, that a stay of discovery is warranted. The remaining arguments regarding the Tobias Defendants' motion for protective order may be resolved by Magistrate Judge Beeler. Civ. L.R. 72-1.

         IT IS SO ORDERED.


Summaries of

Blackmon v. Tobias

United States District Court, Ninth Circuit, California, N.D. California, Oakland Division
Nov 15, 2011
C 11-2853 SBA (N.D. Cal. Nov. 15, 2011)
Case details for

Blackmon v. Tobias

Case Details

Full title:JAMES BLACKMON, an individual; and JOHN GRAY, an individual, Plaintiffs…

Court:United States District Court, Ninth Circuit, California, N.D. California, Oakland Division

Date published: Nov 15, 2011

Citations

C 11-2853 SBA (N.D. Cal. Nov. 15, 2011)