United States District Court, D. Colorado
ORDER DENYING DEFENDANTS' MOTION TO STAY PENDING
RESOLUTION OF MOTION TO DISMISS [ECF. #50]
Kato Crews Magistrate Judge
order addresses Defendants Scott Gorman and EDJSource,
LLC's (“Defendants”) Motion to Stay Discovery
Pending Resolution of Motion to Dismiss (the
“Motion”) [ECF. #50]. The Court has reviewed the
applicable case law, and determined that oral argument will
not materially assist the Court in its
decision. For the reasons below, the Motion is
Aspen Corporations, Inc.'s (“Aspen”) First
Amended Complaint alleges breaches of contract and fiduciary
duty, tortious interference, and improper use of certain
confidential information by Defendants. [ECF. #19 ¶1.]
Defendants have filed a motion to dismiss or, in the
alternative, seek transfer venue to the Southern District of
Florida. [ECF. #23.] Defendants move to dismiss Aspen's
claims for lack of personal jurisdiction, venue, and failure
to state a claim upon which relief can be granted.
[Id.] Defendants now seek a stay of discovery while
the motion to dismiss is pending. [See ECF. #50.]
Federal Rules of Civil Procedure do not provide for the stay
of proceedings while a motion to dismiss is pending. Instead,
Rule 1 instructs that the Federal Rules of Civil Procedure
“shall be construed and administered to secure the
just, speedy, and inexpensive determination of every
action.” The decision to issue a protective order and
thereby stay discovery is within the sound discretion of the
trial court. See Diaz v. Paul J. Kennedy Law Firm,
289 F.3d 671, 674 (10th Cir. 2002). But stays are the
exception in this judicial district, not the rule. Bustos
v. United States, 257 F.R.D. 617, 623 (D. Colo. 2009)
(“This District generally disfavors stays of
discovery.”). Thus, “[t]he right to proceed in
court should not be denied except under the most extreme
circumstances.” Commodity Futures Trading
Comm'n v. Chilcott Portfolio Mgmt., 713 F.2d 1477,
1484 (10th Cir. 1983).
showing of good cause, a protective order is appropriate to
stay discovery to “protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense.” Fed.R.Civ.P. 26(c). Courts consider the
propriety of a stay by balancing five factors: (1)
Aspen's interests in proceeding expeditiously and the
potential prejudice to Aspen of a delay; (2) the burden on
the Defendants if no stay is issued; (3) the convenience to
the court; (4) the interests of non-parties; and, (5) the
public interest. See String Cheese Incident, LLC v.
Stylus Shows, Inc., No. 02-cv-01934-LTB-PAC, 2006 WL
894955, at *2 (D. Colo. Mar. 30, 2006). Considering these
factors, the Court concludes a stay is not warranted.
Aspen has a presumptive right to proceed expeditiously with
its claims. See Alattar v. Bell, No.
13-cv-02990-MSK-KMT, 2014 WL 2566271, at *2 (D. Colo. June 5,
2014). This right “should not be denied except under
the most extreme circumstances.” Commodity Futures
Trading Comm'n, 713 F.2d at 1484. Defendants have
not identified any circumstances, let alone extreme
circumstances, that warrant denying Aspen the right to
proceed expeditiously. Id. (holding the movant bears
the burden “to make a strong showing that the remedy
[is] necessary for the movant and that the disadvantageous
effect on others would be clearly outweighed.”).
Moreover, “motions to dismiss are denied far more often
than they result in the termination of a case.”
Roueche v. U.S., No. 09-cv-00048-WDM-BNB, 2010 WL
420040, at *2 (D. Colo. Feb. 1, 2010) Without prejudging the
Motion, it is more likely than not from a statistical
standpoint that a stay “would prove unnecessary.”
Chavez v. Young America Ins. Co., No.
06-cv-02419-PSF-BNB, 2007 WL 683973, at *2 (D. Colo. March 2,
2007). It follows that the likelihood of prejudice to Aspen
is relatively high should the Court enter a stay at this
time. Therefore, the Court finds that the first factor weighs
heavily against a stay.
second factor also weighs against a stay. Defendants assert
that “any potential prejudice to [Aspen] is offset by
the burden of discovery on Defendants.” [ECF. #50
¶10 (citing cases).]. However, Defendants provide no
support for their assertion. [See generally id.]
Such conclusory assertions do not satisfy Defendants'
burden. See Weatherspoon v. Miller, No.
11-cv-00312-REB-MEH, 2011 WL 1485935, at *1 (D. Colo. Apr.
19, 2011). While Defendants will undoubtedly incur some
burden in proceeding with discovery, there is nothing to
suggest that this burden is exceptional or unusual to this
case. Chavez, 2007 WL 683973, at *2
(“Defendants always are burdened when they are
sued[.]”) Accordingly, the second factor weighs against
third factor weighs against a stay because delays resulting
from a stay of discovery inconvenience courts by making the
“docket less predictable and, hence, less
manageable.” Stone v. Vail Resorts Dev. Co.,
No. 09-cv-02081-WYD-KLM, 2010 WL 148278, at *3 (D. Colo. Jan.
the interests of non-parties and the public do not prompt the
Court to reach a different result. Having balanced the five
String Cheese factors, the Court finds that a stay
of discovery is inappropriate.
IT IS ORDERED that Defendants' Motion to Stay Discovery
Pending Resolution of Motion to Dismiss [ECF. #50] is DENIED.
 Plaintiff Aspen Corporations, Inc. did
not file a response. Defendants represent that Plaintiff does
not consent to the relief ...