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Marks v. Lynch

United States District Court, D. Colorado

February 6, 2017

DANIELLE MARKS, Plaintiff,
v.
LORETTA LYNCH, Attorney General, United States Department of Justice, Defendant.

          ORDER ON DEFENDANT'S MOTION TO STAY

          Michael E. Hegarty, United States Magistrate Judge.

         Before the Court is Defendant's Motion to Stay Discovery [filed December 21, 2017; ECF No. 19]. The motion is fully briefed and the matter has been referred to this Court for disposition. For the reasons that follow, Defendant's motion is denied.

         I. Background

         Plaintiff initiated this employment discrimination action on August 18, 2016, then filed the operative Amended Complaint as a matter of course on October 17, 2016, alleging generally that Defendant “discriminated against, harassed, and ultimately constructively discharged [her from] employment” and “retaliated against [her] after she made a formal complaint to FBI management and the EEO about the harassing and discriminatory behavior of numerous male FBI special agents and management.” See Am. Compl. 1. On December 19, 2016, Defendant responded to the Amended Complaint by filing a Motion to Dismiss pursuant to Fed.R.Civ.P. 12 (b)(6) arguing that Plaintiff did not timely exhaust her hostile work environment claim and she fails to state claims for hostile work environment, constructive discharge, disparate treatment, and retaliation. Mot., ECF No. 18. The motion to dismiss is now ripe and pending before the Honorable Wiley Y. Daniel.

         Two days after filing her motion to dismiss, Defendant filed the present Motion to Stay Discovery, alleging “[t]he Court should stay discovery until it has resolved Defendant's pending motion to dismiss for failure to state a claim which, if granted, will dispose of this case.” See Mot., ECF No. 19 at 1. Plaintiff opposes Defendant's request.

         Before the Court received a response to the present motion, this Court held a Scheduling Conference on January 11, 2017, at which the Court set a schedule for discovery in this case. ECF No. 18. Thus, discovery in this case apparently has begun.

         II. Discussion

         The decision to issue a protective order and thereby stay discovery rests within the sound discretion of the trial court. Wang v. Hsu, 919 F.2d 130, 130 (10th Cir. 1990). Such protection is warranted, upon a showing of good cause, to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c).

         In determining whether to grant a stay, courts in this District have typically balanced the following factors taking into consideration the competing interests at stake: (1) the interests of the plaintiff 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. String Cheese Incident, LLC v. Stylus Shows, Inc., No. 02-cv-01934-LTB-PAC, 2006 WL 894955, at *3 (D. Colo. March 30, 2006) (unpublished) (citing FDIC v. Renda, No. 85-2216-O, 1987 WL 348635, at *2 (D. Kan. Aug. 6, 1987)).

         At the outset, the Court must address Defendant's contention that this Court has “overlooked” the Supreme Court's “holdings” in denying recent motions to stay. Mot. 8. Defendant argues that the Supreme Court's notation in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007)-of “the understanding that, before proceeding to discovery, a complaint must allege facts suggestive of illegal conduct”-and its admonition in Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) -“Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions”-require that the Court stay discovery until the motion to dismiss is resolved. The Court disagrees.

         First, the Defendant cites, and the Court has found, no cases in the Tenth Circuit in which a stay has been imposed pending resolution of a Rule 12(b)(6) motion to dismiss based on the language in Twombly and Iqbal. This is likely so, because the Iqbal statement references and supports the proposition that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” See 556 U.S. at 678-79. Likewise, the Twombly statement referenced and supported the Supreme Court's conclusion that a passage in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)-“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”-and the cases which gave rise to the passage did “not [describe] the minimum standard of adequate pleading to govern a complaint's survival.” 550 U.S. at 563. That is, if the allegations in a complaint require discovery to render them “plausible, ” they are likely mere conclusions that are not entitled to a presumption of truth and are insufficient to survive a motion to dismiss. Thus, the Twombly/Iqbal language merely supports the Supreme Court's newly articulated pleading standard. See Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (interpreting Twombly's and Iqbal's “new” pleading standard as, “to withstand a motion to dismiss, a complaint must have enough allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its face'” and citing “two purposes” of this pleading requirement: to ensure a defendant is placed on sufficient notice and to avoid costly discovery for “a largely groundless claim”).

         In other words, the language cited by Defendant relates solely to the viability of a claim when challenged by Fed.R.Civ.P. 8 or 12(b)(6), not to whether discovery should be stayed pending resolution of a Rule 12(b)(6) motion. The question this language answers is whether a plaintiff should be permitted discovery to bolster his or her allegations in an effort to survive dismissal:

Or put another way, the plaintiff [argues his] lack of access to relevant information, when compared to defendant's access, should not result in the dismissal of his claim. The Supreme Court has already considered, and rejected, this very possibility. Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937 (“Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”); . . .

Vega v. Davis, 572 F.App'x 611, 616 (10th Cir. July 22, 2014); see also Jensen v. America'sWholesale Lender, 425 F.App'x 761, 764 (10th Cir. Jun. 9, 2011) (“Though [plaintiffs] insist they could establish their fraud claim with discovery, our pleading standard ‘does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.'”); Mecca v. United States, 389 F.App'x 775, 782 (10th Cir. Jul. 26, 2010) (“Dr. Mecca asserts he could show defendants' culpability with discovery, but ‘[Fed. R. ...


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