United States District Court, D. Colorado
KATHLEEN M TAFOYA, UNITED STATES MAGISTRATE JUDGE
the court is Defendants' “Joint Unopposed Motion to
Stay Proceedings Pending Ruling on Immunity Defenses.”
([“Motion”], Doc. No. 85.) In their Motion,
Defendants asks that proceedings in this case be stayed,
pending resolution of two Motions to Dismiss, filed
respectively, by Defendants Board of Education of the Primero
Reorganized School District RE-2 [the “Board”]
and William Naccarato, and by Defendant Trish Sanchez.
(Id.; see Doc. Nos. 50-51.) Plaintiff has
not responded to Defendants' motion to
Jane Doe is a former student in the Primero Reorganized
School District [the “School District”].
([“Complaint”], Doc. No. 48 at ¶¶
20-21.) In her Second Amended Complaint, Plaintiff alleges
that, in July 2017, when she was sixteen years old, she was
sexually assaulted by two male students, Defendants D.L. and
Z.L. (Id. at ¶¶ 12-13, 46-61.) The alleged
sexual assaults were said to have occurred at a house owned
by Defendant D.L.'s grandmother, Defendant Debra
Velasquez. (Id. at ¶¶ 14, 27-28.)
According to the Complaint, shortly thereafter,
Plaintiff's parents reported the incident to two School
District employees, Defendants Naccarato and Sanchez.
(Id. at ¶¶ 73-74, 79.) It is alleged,
however, that Defendants did not “tak[e] any steps to
protect [Plaintiff] or investigate her rape.”
(Id. at ¶ 101.) In addition, Plaintiff claims
that Defendants D.L. and Z.L. “continued to be
permitted to attend” school with her, despite the
School District's assurances otherwise. (Id. at
¶ 121.) Plaintiff further alleges that, throughout the
following school year, she was “tormented” and
“harassed” on a “daily” basis by
fellow School District classmates regarding the sexual
assaults. (Id. at ¶¶ 86-87.) Plaintiff
also alleges that Defendants “lashed out” and
retaliated against her for making a complaint about the
School District's handling of the matter. (Id.
at ¶¶ 133-34.)
13, 2019, Plaintiff filed a Second Amended Complaint in this
action, asserting Title IX claims for gender discrimination,
sexually hostile educational environment, and retaliation
against the Board, as well as a bevy of state law claims
against the Board and the individual
Defendants. (Id. at ¶¶ 150-276.) In
the Second Amended Complaint, Plaintiff requests injunctive
relief and monetary damages. (Id. at 38.)
27, 2019, the Board and Defendant Nacarrato responded to the
Second Amended Complaint by filing a motion to dismiss, and
that same day, Defendant Sanchez filed a separate motion to
dismiss. (Doc. Nos. 50-51.) In addition, on October 9, 2019,
Defendants filed the present motion to stay this case,
pending resolution of the two motions to dismiss. (Mot. 1.)
Defendants argue that a stay is warranted here, because the
Board, Defendant Naccarato, and Defendant Sanchez each invoke
immunity defenses to some of Plaintiff's claims, and
because the Board's motion challenges Plaintiff's
standing to bring this lawsuit. (Id. at 3-4.)
Federal Rules of Civil Procedure do not expressly provide for
a stay of proceedings. Rule 26(c), however, permits a court
to “make an order which justice requires to protect a
party . . . from annoyance, embarrassment, oppression, or
undue burden or expense.” Fed.R.Civ.P. 26(c). Further,
“[t]he power to stay proceedings is incidental to the
power inherent in every court to control the disposition of
the causes on its docket with economy of time and effort for
itself, for counsel, and for litigants.” Landis v.
N. Am. Co., 299 U.S. 248, 254-55 (1936) (citing Kan.
City S. Ry. Co. v. United States, 282 U.S. 760, 763
District, a stay of discovery is generally disfavored.
See, e.g., Rocha v. CCF Admin., No.
09-cv-01432, 2010 WL 291966, at *1 (D. Colo. Jan. 20, 2010);
Jackson v. Denver Water Bd., No. 08-cv-01984, at *1
(D. Colo. Dec. 15, 2008); Chavez v. Young Am. Ins.
Co., No. 06-cv-02419, at *2 (D. Colo. Mar. 2, 2007).
Nevertheless, the decision whether to stay discovery rests
firmly within the sound discretion of the court. United
Steelworkers of Am. v. Or. Steel Mills, Inc., 322 F.3d
1222, 1227 (10th Cir. 2003) (quoting Landis, 299
U.S. at 254).
ruling on a motion to stay discovery, five factors are
generally considered: “(1) [the] plaintiff's
interests in proceeding expeditiously with the civil action
and the potential prejudice to [the] 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, 2006 WL 8949955, at *2 (D. Colo. Mar. 30, 2006);
see United Steelworkers, 322 F.3d at 1227. Further,
“a court may decide that in a particular case it would
be wise to stay discovery on the merits until [certain
challenges] have been resolved.” 8A Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure §
2040, at 198 (3d ed. 2010). “[A] stay may be
appropriate if resolution of a preliminary motion may dispose
of the entire action.” Serv. First Permits, LLC v.
Lightmaker Vancouver (Internet) Inc., No. 18-cv-02089,
2019 WL 109335, at *3 (D. Colo. Jan. 4, 2019) (quoting
Elec. Payment Sols. of Am., Inc., No. 14-cv-02624,
2015 WL 3940615, at *1 (D. Colo. June 25, 2015)).
case, as to the first factor, there is no evidence to suggest
that Plaintiff will be prejudiced by a stay of the
proceedings. Indeed, Plaintiff has not responded, or
otherwise expressed opposition, to Defendants' motion.
The first factor, therefore, weighs in favor of the
imposition of a stay. See Frasier v. Evans, No.
15-cv-01759, 2015 WL 6751136, at *2 (D. Colo. Nov. 5, 2015)
(finding the first factor to weigh in favor of a stay,
because the plaintiff did not oppose the requested relief).
the second factor, Defendants argue that they would be unduly
burdened by moving forward with discovery, primarily because
the Board, Defendant Naccarato, and Defendant Sanchez have
asserted immunity defenses to certain of Plaintiff's
claims. (Mot. 2-4.) Those Defendants argue, specifically,
that Plaintiff's claims for negligence, intentional
infliction of emotional distress, negligent infliction of
emotional distress, outrageous conduct, and civil conspiracy
are barred by the Colorado Governmental Immunity Act. (Doc.
No. 50 at 11-14; Doc. No. 51 at 8-12.)
Tenth Circuit has made clear that questions of immunity
should be resolved at the earliest stages of litigation.
See Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir.
2012) (addressing qualified immunity); Moore v.
Busby, 92 Fed. App'x 699, 702 (10th Cir. 2004)
(affirming trial court's stay of discovery pending
resolution of absolute immunity question); see also
Hunter v. Bryant, 502 U.S. 224, 227 (1991)
(“[B]ecause the entitlement is an immunity from suit
rather than a mere defense to liability, we repeatedly have
stressed the importance of resolving immunity questions at
the earliest possible stage in litigation.”)
(alterations and citations omitted). In addition,
“discovery generally should be avoided” once an
immunity defense is raised, unless the plaintiff demonstrates
“how [such] discovery will raise a genuine fact issue
as to the defendants'  immunity claim.”
Martin v. Cnty. of Santa Fe, 626 Fed. App'x 736,
740 (10th Cir. 2015) (citing Cole v. Ruidoso Mun.
Sch., 43 F.3d 1373, 1387 (10th Cir. 1994)). Here,
Plaintiff has made no such demonstration. See Raven v.
Williams, No. 19-cv-01727-WJM-SKC, 2019 WL 4954640, at
*2 (D. Colo. Oct. 8, 2019) (finding the second factor weighed
in favor of a stay, because the plaintiff did not address how
discovery would pertain to the defendant's qualified
more importantly, however, the Board's motion to dismiss
appears to implicate this court's subject matter
jurisdiction. (Doc. No. 50 at 5-6.) The Board contends, in
its motion to dismiss, that on the night of the alleged
sexual assault, Plaintiff was not, in fact, a School District
student. (Id. at 5.) It contends, therefore, that
Plaintiff lacks standing to sue it under Title XI “for
claims that arise out of or relat[e] to the assault.”
(Id.) Given that federal jurisdiction in this case
is premised solely on Plaintiff's Title IX claims against
the Board, dismissal of those claims would warrant dismissal
of the remaining state law claims. See Smith v. City of
Enid By and Through Enid City Comm'n, 149 F.3d 1151,
1156 (10th Cir. 1998) (citing 28 U.S.C. § 1367(c)(3))
(“When all federal claims have been dismissed, the
court may, and usually should, decline to exercise
jurisdiction over any remaining state law claims.”);
Thatcher Enters. v. Cache Cty. Corp., 902 F.2d 1472,
1478 (10th Cir. 1990) (“Notions of comity and
federalism demand that a state court try its own lawsuits,
absent compelling reasons to the contrary.”).
Accordingly, the second factor supports the imposition of a
stay. See Drive Sunshine Inst. v. High Performance
Transp. Enter., No. 14-cv-00844-REB-KMT, 2014 WL
5816900, at *2-3 (D. Colo. Nov. 10, 2014) (finding the second
factor weighed in favor a stay, because some of the
defendants asserted immunity defenses and challenges to the
plaintiff's standing); Wyers Prods. Grp. v. Cequent
Performance Prods., Inc., No. 12-cv-02640-REB-KMT, 2013
WL 2466917, at *2 (D. Colo. June 7, 2013) (“[D]ecisions
from this District have concluded that stays are generally
favored when a jurisdictional defense under Rule
12(b)(1) is asserted.”).
to the remaining String Cheese factors, the third
“court convenience” factor also weighs in favor
of stay. Indeed, it is certainly more convenient for the
court to enter a stay until it is clear which, if any, of
Plaintiff's claims will move forward. The fourth factor
bears no weight, as there are no non-parties with
significant, particularized interests in this case. As to the
fifth factor, the general public's primary interest in
this case is an efficient and just resolution. Avoiding
wasteful efforts by the court and the litigants serves that
considering the String Cheese factors together, as
well as the strong interest of resolving questions of
jurisdiction and immunity before subjecting government
officials to the vicissitudes of ...