Opinion
CIVIL ACTION No: 00-2585-CM
January 4, 2002
MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion to Stay Pending a Decision on Appeal and for Protective Order (doc. 41). Defendants Brent Kemnitz and George Stephenson have appealed the District Court's ruling (doc. 30) denying in part their Motions to Dismiss. They have also appealed the District Court's ruling (doc. 32) granting Plaintiff's Motion for Summary Judgment.
All Defendants seek to stay any amendments to the pleadings, initial Rule 26(a)(1) disclosures, the scheduling conference, discovery, and all other proceedings, pending a ruling on Defendants' appeal to the Tenth Circuit. They also seek a protective order prohibiting Plaintiff from filing any further pleadings in the District Court, pending resolution of the appeal.
Defendant Benjamin Christensen did not join in the appeal. Mr. Christensen's motion to dismiss was denied by the District Court in its entirety. See doc. 31.
Plaintiff opposes the request for stay and protective order on the basis that the District Court's Order granting Plaintiff summary judgment was not a final order appealable under 28 U.S.C. § 1291. Plaintiff also argues that Defendants' appeal of the District Court's ruling on their Motions to Dismiss is frivolous in that their claim of Eleventh Amendment immunity is unfounded.
The Court notes that it entered an Order on March 9, 2001 (doc. 24) granting Defendants' earlier Motion to Stay (doc. 7). At that time, Plaintiff did not oppose the stay. The Court stayed the Rule 26(1) disclosures, all discovery, and the scheduling conference, "pending a resolution of Defendants' Motions to Dismiss." Doc. 24 at 1.
The Court holds that the stay should remain in place pending the Tenth Circuit's resolution of the Defendants' Motions to Dismiss and Plaintiff's Motion for Summary Judgment. Defendants' Motions to Dismiss sought dismissal based on Eleventh Amendment immunity. Although discovery and other pretrial proceedings typically are not stayed based on the pendency of dispositive motions, an exception is made when a defendant asserts immunity. A defendant is entitled to have questions of immunity resolved before being required to engage in discovery and other pretrial proceedings. Siegert v. Gilley, 500 U.S. 226, 232-33, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). "One of the purposes of immunity . . . is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit." Id., 500 U.S. at 232. See also Puerto Rico Aqueduct and Sewer Auth. v. Metcalf Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) ("The very object and purpose of the 11th Amendment [are] to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties.") (quoting In re Ayers, 123 U.S. 443, 505, 8 S.Ct. 164, 31 L.Ed. 216 (1887)). The Supreme Court has made it clear that until the threshold question of immunity is resolved, discovery and other proceedings should not be allowed. See Siegert, 500 U.S. at 233; Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
Plaintiff's mere assertion that the appeal is frivolous does not preclude this Court from entering the stay. The merits of the appeal should be addressed by the Tenth Circuit and not this Judge.
For the reasons cited above, Defendants' Motion to Stay Pending a Decision on Appeal and for Protective Order (doc. 41) is granted. In addition, the Magistrate Judge will stay ruling on all pending motions before him, pending resolution of Defendants' appeal to the Tenth Circuit.
IT IS THEREFORE ORDERED that Defendants' Motion to Stay Pending a Decision on Appeal and for Protective Order (doc. 41) is granted. Any amendments to the pleadings, the initial Rule 26(a)(1) disclosures, the scheduling conference, discovery, and all other proceedings in this District Court are stayed as to all parties, pending resolution of Defendants' appeal to the Tenth Circuit.
IT IS FURTHER ORDERED that the following motions, and any rulings thereon, are stayed, pending resolution of Defendants' appeal to the Tenth Circuit: (1) Plaintiff's Motion to Deem Complaint Already Filed (doc. 39); (2) Defendants Brent Kemnitz and Eugene Stephenson's Motion to Strike (doc. 42); and (3) Plaintiff's [Second] Motion to Deem Complaint Already Filed (doc. 46).
IT IS SO ORDERED.