Free Motion to Stay - District Court of Colorado - Colorado

Case 1:04-cv-01185-WDM-PAC

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Filed 01/17/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1185-WDM-PAC GREG FELDMAN, Plaintiff, v. JOBSON PUBLISHING, LLC, a Delaware limited liability company, POSTGRADUATE INSTITUTE FOR MEDICINE, Inc., a Delaware corporation, INTERNATIONAL CENTER FOR POSTGRADUATE MEDICAL EDUCATION, Defendants.

PLAINTIFF'S UNOPPOSED MOTION TO STAY DISCOVERY PENDING RULING ON PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Plaintiff Greg Feldman, by and through his attorneys, the Student Law Office of the University of Denver Sturm College of Law, pursuant to Fed. R. Civ. P. 26(c), moves for the entry of an Order staying all discovery in this matter from the date this Motion is filed until five (5) days after this Court rules on Plaintiff's Motion for Leave to File Second Amended Complaint. This Motion to Stay Discovery is unopposed by Defendants. Background Almost from the outset of this case, the parties have disagreed as to who are the proper Defendants in this action. Pursuant to this Court's Order, on January 6, 2006, Plaintiff filed a Motion for Leave to File Second Amended Complaint (Docket #38). In his proposed Second Amended Complaint, among other things, Plaintiff names Jobson Publishing, LLC, and XJP, LLC as the Defendants in this action. Plaintiff proceeded with his Motion for Leave to File -1-

Case 1:04-cv-01185-WDM-PAC

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Second Amended Complaint in part because the parties were unable to reach agreement as to who the proper Defendants are in this action. In his proposed Second Amended Complaint, Plaintiff contends that Jobson Publishing, LLC and XJP, LLC are successors in liability to the entity that employed Plaintiff. The Court has not yet ruled on Plaintiff's Motion for Leave to File Second Amended Complaint; indeed, the time for Defendants to file a response to that Motion has not yet expired. Consequently, it has not yet been determined who the proper Defendants are in this action. On December 20, 2005, Defendants propounded their first set of Interrogatories, Requests for Production of Documents, and Requests for Admission upon Plaintiff. Plaintiff, however, has been unable to conduct discovery of his own because the identity of the Defendants is still in dispute. Additionally, pursuant to this Court's Scheduling Order of November 15, 2005 (Docket #29), various discovery deadlines are approaching in the next few weeks, including submission of a deposition schedule, designation of experts, and a court-ordered settlement conference. Argument A party may move, "for good cause shown, the court ... [to] make any order which justice requires to protect a party or person from ... undue burden or expense, including ... that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place." Fed. R. Civ. P. 26(c). Also, "the Court has considerable discretion over the timing of discovery." Merrill Lynch, Pierce, Fenner & Smith Inc. v. Coors, 357 F.Supp.2d 1277, 1280 (D. Colo. 2004). The Tenth Circuit has held, "[w]hen applying for a stay [of discovery], a party must demonstrate a clear case of hardship or inequity if even a fair

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possibility exists that the stay would damage another party." Ben Ezra, Weinstein, and Co. v. America Online Inc., 206 F.3d 980, 987 (10th Cir. 2000)(internal quotations omitted). In this case, there is good cause for the Court to grant Plaintiff's Motion for Stay of Discovery. Application of the Ben Ezra standard to the case at bar demonstrates that continuing discovery during the pendency of Plaintiff's Motion for Leave to File Second Amended Complaint would cause no damage to Defendants, yet would place an undue hardship and inequity on Plaintiff. Because the Court has not yet ruled on Plaintiff's Motion for Leave to File Second Amended Complaint, the identity of the Defendants from whom such discovery would be sought is still not resolved, thus preventing Plaintiff from conducting discovery. Without a stay of discovery, however, Defendants can continue to propound discovery upon Plaintiff, whose identity has never been in question. This clear inequity can be avoided if the parties are stayed from proceeding with discovery until determination of Plaintiff's pending Motion makes clear who the Defendants are in this case. Further, a stay of discovery will not damage the Defendants. In fact, a stay of discovery will prevent the Defendants named in the Amended Complaint from incurring any additional costs or expenses pending this Court's determination of whether they will remain named as Defendants. Because Plaintiff proposes that discovery only be stayed until five (5) days after the Court rules on the pending Plaintiff's Motion for Leave to File Second Amended Complaint, the stay would most likely impose only a minimal delay of discovery.

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Case 1:04-cv-01185-WDM-PAC

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Filed 01/17/2006

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Certificate of Compliance with D.C. Colo. LR 7.1(A) In accordance with Local Rule D.C. Colo. LR 7.1(A), the undersigned counsel conferred with counsel for the Defendants in a good faith effort to resolve the issues raised by this motion. Opposing counsel does not oppose this Motion to Stay Discovery. Conclusion For the reasons set forth above, Plaintiff respectfully requests that this Court grant his Unopposed Motion to Stay Discovery Pending Ruling on Plaintiff's Motion for Leave to File Second Amended Complaint. Plaintiff requests this Court to order discovery to resume five (5) days after the Court rules on the pending Plaintiff's Motion for Leave to File Second Amended Complaint. Dated: January 17, 2006 Respectfully submitted, STUDENT LAW OFFICE 1/17/2006 Date /s/ Laura Rovner Laura Rovner University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 E-mail: [email protected] Attorney for Plaintiff Greg Feldman /s/ Ari Krichiver Ari Krichiver, Student Attorney University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 Student Attorney for Plaintiff Greg Feldman

1/17/2006 Date

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1/17/2006 Date

/s/ Julie Schmidt Julie M. Schmidt, Student Attorney University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 Student Attorney for Plaintiff Greg Feldman

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Case 1:04-cv-01185-WDM-PAC

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Certificate of Service I HEREBY CERTIFY that on this 17th day of January 2006, I electronically filed the foregoing PLAINTIFF'S UNOPPOSED MOTION TO STAY DISCOVERY PENDING RULING ON PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected]

/s/ Laura L. Rovner Laura L. Rovner STUDENT LAW OFFICE University of Denver Sturm College of Law 2255 E. Evans Avenue Denver, CO 80208 Tel: 303.871.6140 Fax: 303.871.6847 Email: [email protected] Attorney for Plaintiff Greg Feldman

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