DAWNYELL TENAYA FLYNN v. STATE OF NEVADA (2024)

Order

Pending before the Court is Defendants’¹ motion to stay discovery pending resolution of their motion to dismiss. Docket No. 39. Defendants filed a supplement, as ordered by the Court. Docket No. 42. Plaintiff filed a response in opposition. Docket No. 43. Defendants filed a reply. Docket No. 44. The motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed more fully below, the State Defendants’ motion to stay discovery is DENIED.²

I. BACKGROUND

Plaintiff is incarcerated at the Florence McClure Women's Correctional Center. Docket No. 27 at ¶ 1. Plaintiff alleges that the prison chaplain, Donald Burse, began to frequent Plaintiff's dormitory to provide religious counseling, but that the conversations transitioned into inappropriate sexual harassment. See id. at ¶¶ 12, 14-15. Plaintiff alleges that matters escalated when, in August 2020, Defendant Burse summoned her to the chapel and sexually assaulted her there. See id. at ¶¶ 17-24. Plaintiff alleges that Defendant Burse sexually assaulted her again thereafter. See id. at ¶¶ 25-35. Plaintiff further alleges that Defendant Burse threatened her and warned against reporting the alleged sexual assault. See id. at ¶ 36.

In inquiring into a different matter, a criminal investigator was told by another inmate that Defendant Burse had sexually assaulted Plaintiff. Id. at ¶¶ 37-38. Plaintiff was questioned by the investigator and reported details of the above sexual assaults in a series of interviews. Id. at ¶¶ 37-40. On August 10, 2021, Plaintiff filed a grievance with the prison regarding the alleged sexual assault. Id. at ¶ 41. That grievance was initially denied. Id. at ¶ 42. Plaintiff continued to file grievances and, in February 2022, she received a notice that her grievance was substantiated and forwarded to the Inspector General's Office for review. Id. at ¶¶ 43-44. Defendant Burse was terminated as the prison chaplain and charged with felony sexual assault. Id. at ¶¶ 45-47.

Plaintiff has sued Burse, the State of Nevada, Department of Corrections, Director James Dzurenda (in his official capacity), and Doe Defendants working with the Department of Corrections. Id. at ¶¶ 2-5. Plaintiff brings claims against the State Defendants for deliberate indifference, battery, false imprisonment, and intentional infliction of emotional distress. Id. at ¶¶ 82-100. Plaintiff seeks damages, injunctive relief, and declaratory relief. E.g., id. at ¶¶ 101-14.

Plaintiff and the State Defendants filed a stipulated discovery plan. Docket No. 25. The parties exchanged initial disclosures. Docket No. 32 at 2. The parties have served each other with comprehensive written discovery requests. Docket No. 39 at 2. Plaintiff has responded to the State Defendants’ written discovery. Docket No. 43 at 8. The initial expert disclosure deadline is set for January 8, 2024, the rebuttal expert disclosure deadline is set for February 7, 2024, and the discovery cutoff is set for March 10, 2024. Docket No. 34 at 2.

The State Defendants filed a motion to dismiss the amended complaint. Docket No. 31. The motion to dismiss has been fully briefed. Docket Nos. 33, 35. On December 14, 2023, the State Defendants filed the instant motion to stay discovery, which is the matter currently before the Court. Docket No. 39.

II. STANDARDS

Requests for protective orders are governed by Rule 26(c) of the Federal Rules of Civil Procedure, which provides in pertinent part that “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ․ forbidding the disclosure or discovery.” Fed. R. Civ. P. 26(c)(1).³

A. THE PRELIMINARY PEEK FRAMEWORK

Extensive jurisprudence addresses the circumstances in which a protective order should issue staying discovery pending resolution of a motion to dismiss brought under Rule 12(b)(6).⁴ The United States Supreme Court and the Ninth Circuit have not established a particular standard by which district courts resolve such a request, but the Ninth Circuit has provided guidance. The decision of whether to stay discovery is entrusted to the “wide discretion” of the district court. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). Discovery may be stayed when a dispositive motion does not require discovery, Alaska Cargo Transp., Inc. v. Alaska R.R. Corp., 5 F.3d 378, 383 (9th Cir. 1993); Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987); Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984),⁵ but discovery should not be stayed if it is necessary to decide the dispositive motion, see, e.g., Alaska Cargo, 5 F.3d at 383. Good cause exists to stay discovery when the district court is “convinced that the plaintiff will be unable to state a claim for relief.” Wood v. McEwen, 644 F.2d 797, 801-02 (9th Cir. 1981) (citing B.R.S. Land Invs. v. United States, 596 F.2d 353, 356 (9th Cir. 1979)); accord Wenger v. Monroe, 282 F.3d 1068, 1077 (9th Cir. 2002).⁶

Judges from this District have expanded on the Ninth Circuit's jurisprudence, creating a robust body of law as to the showings that justify delaying discovery pending resolution of a motion to dismiss. In 1989, Chief United States District Judge Edward C. Reed, Jr. articulated several guiding principles for analyzing a motion to stay discovery. Twin City Fire Ins. Co. v. Emps. Ins. of Wausau, 124 F.R.D. 652 (D. Nev. 1989). “A pending [m]otion to [d]ismiss is not ordinarily a situation that in and of itself would warrant a stay of discovery.” Id. at 653. “To show good cause in the Ninth Circuit, the moving party must show more than an apparently meritorious 12(b)(6) claim: ‘A district court may ․ stay discovery when it is convinced that the plaintiff will be unable to state a claim for relief.’ ” Id. (quoting Wood, 644 F.2d at 801) (emphasis added by Judge Reed). “Finally, while Fed. R. Civ. P. 26(c) protects against oppression or undue burden and expense, a showing that discovery may involve some inconvenience and expense does not suffice to establish good cause for issuance of a protective order.” Id. Rather than bald assertions of undue burden or expense, “[s]ome extraordinary justification must be shown to satisfy the good cause requirement of Fed. R. Civ. P. 26(c).” Id. “In addition, the burden is on the party seeking relief to show some plainly adequate reason for the order.” Id. Given that Judge Reed was not convinced that the plaintiff would be unable to state a claim and an extraordinary justification for a stay of discovery had not been made, he denied the motion to stay discovery. See id.⁷

In 1997, later-elevated United States Magistrate Judge Roger L. Hunt provided additional context to this analysis. Turner Broad. Sys., Inc. v. Tracinda Corp., 175 F.R.D. 554 (D. Nev. 1997). Judge Hunt reiterated the legal standards adopted by Judge Reed in Twin City Fire Insurance, see id. at 555-56, and also provided several key insights into how these standards should be applied. Judge Hunt emphasized that the party seeking discovery carries a “heavy burden” to make a “strong showing” as to why discovery should be stayed. Id. at 556. In light of that burden of persuasion, a stay is appropriate not merely because dismissal may be likely, but “where the complaint was utterly frivolous, or filed merely for settlement value.” Id. Judge Hunt also flatly rejected the notion that the potentially unnecessary burden and expense of engaging in “expansive” discovery constituted permissible grounds to stay all discovery. Id. at 555. To the contrary, Judge Hunt viewed the need for extensive discovery as grounds to avoid delay in getting that discovery started. Id. at 556 (explaining that a denial of a stay of discovery was supported by the fact that “[t]he Court is interested in moving this case forward and recognizes that it will require much discovery. The parties themselves have requested a discovery period longer than suggested by the Local Rules”). Given Judge Hunt's view that the underlying motion to dismiss was not sufficiently meritorious to warrant a stay and that the assertions of burdensome discovery were similarly not sufficient, he denied the motion to stay discovery. Id.

A decade after Turner Broadcasting, the United States Supreme Court refined the standards governing motions to dismiss for failure to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Twombly, 550 U.S. 544. These Supreme Court decisions were followed by a deluge of Rule 12(b)(6) motions to dismiss, which led to a corresponding flood of motions to stay discovery, straining the ability of district courts to provide speedy justice to litigants. In 2011, United States Magistrate Judge Peggy A. Leen reevaluated the jurisprudence from the Ninth Circuit and this District regarding stays of discovery in light of the implications from these new circumstances. Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597 (D. Nev. 2011). Judge Leen began by recognizing that the Federal Rules of Civil Procedure do not provide for automatic or blanket stays of discovery based on the filing of a dispositive motion. Id. at 600. Judge Leen then provided a comprehensive review of the existing case law, recognizing that some courts had opted for more lenient approaches to staying discovery pending resolution of a dispositive motion than had the judges in this District. See id. at 602. Particularly given the explosion of motions to dismiss filed in the wake of Iqbal and Twombly,⁸ however, Judge Leen found the better approach was to remain faithful to the standards articulated by Judge Reed and Judge Hunt years earlier. Tradebay, 278 F.R.D. at 602-03. In particular, Judge Leen concluded that the convincing standard for a preliminary peek best balances the competing goals in Rule 1 for a just, speedy, and inexpensive determination of cases given that an overly lenient standard would likely lead to unwarranted delay in many cases. See id. at 603. Hence, Judge Leen reiterated that “[p]rohibiting or delaying all discovery will often cause unwarranted delay” and that the pendency of a “non-frivolous” motion to dismiss “is simply not enough to warrant a blanket stay of all discovery.” Id. In accordance with the existing case law, Judge Leen agreed that “[a] stay of all discovery should only be ordered if the court is ‘convinced’ that a plaintiff will be unable to state a claim for relief.” Id.⁹ In conducting that preliminary peek, Judge Leen found a stay of all discovery to be warranted given that the motion to dismiss was potentially dispositive of the entire case, the motion to dismiss could be resolved without discovery, and she was “convinced” that the plaintiff could not state a claim for relief. Tradebay, 278 F.R.D. at 608.¹⁰

In 2013, the undersigned endeavored to distill the extensive case law from the Ninth Circuit and from this District into a three-part test. Kor Media Grp., LLC v. Green, 294 F.R.D. 579 (D. Nev. 2013). First, the underlying motion must be potentially dispositive in scope and effect. See id. at 581-82. As to the scope of the underlying motion, a stay of all discovery is generally appropriate only in cases with a motion to dismiss all claims, though a partial stay of discovery may be appropriate for a partial motion to dismiss. See Tradebay, 278 F.R.D. at 602 (“the pending motion must be potentially dispositive of the entire case or at least dispositive on the issue on which discovery is sought”). As to the effect of the underlying motion, a stay of discovery is generally appropriate only when a ruling on the underlying motion in favor of the movant would resolve the case such that any discovery conducted would be a waste of time and resources. See Kor Media, 294 F.R.D. at 581-82 (finding a motion to dismiss the case potentially dispositive, but a motion to transfer not potentially dispositive); see also Grammer v. Colo. Hosp. Ass'n Shared Servs., Inc., No. 2:14-cv-01701-RFB-VCF, 2015 WL 3938406, at *2 (D. Nev. June 26, 2015) (holding that a stay of discovery was unwarranted pending resolution of a motion to remand to state court because “[t]his action will either continue in federal court or in state court. Unless the case settles, discovery will proceed regardless of the outcome of the District Court's remand decision”). Second, the potentially dispositive motion must be resolvable without the need for additional discovery. Kor Media, 294 F.R.D. at 582. Third, the Court must take a “preliminary peek” at the merits of the potentially dispositive motion and must be convinced that the plaintiff will be unable to state a claim for relief. Id. at 583.¹¹ “That standard is not easily met.” Id. “Generally, there must be no question in the court's mind that the dispositive motion will prevail, and, therefore, discovery is a waste of effort.” Id. (quoting Trzaska, 2011 WL 1233298, at *3) (emphasis in original). These are the basic requirements ¹² from the existing case law that a defendant must meet to obtain a stay of discovery pending resolution of its motion to dismiss for failure to state a claim.

As the overview provided above details, the preliminary peek framework is deeply rooted in published case law from this District issued by Chief Judge Reed, Judge Hunt, Judge Johnston, Judge Leen, Judge Ferenbach, and the undersigned. Other judges within this District have for decades issued hundreds (if not thousands) of unpublished orders “embrac[ing] the well-reasoned approach and analysis” enunciated in the published case law. See Money v. Banner Health, No. 3:11-cv-00800-LRH-WGC, 2012 WL 1190858, at *5-6 (D. Nev. Apr. 9, 2012) (Cobb, J.) (agreeing with Judge Leen that the Twin City Fire Insurance and Turner Broadcasting standards continued to apply); see also, e.g., Edwards v. Signify Health, Inc., No. 2:22-cv-00095-CDS-BNW, 2023 WL 3467558, at *1 (D. Nev. May 12, 2023) (Silva, J.); Kramer v. JPMorgan Chase Bank, N.A., No. 2:21-cv-01585-RFB-BNW, 2022 WL 4598781, at *2 (D. Nev. Sept. 30, 2022) (Boulware, J.); Ditech Fin. LLC v. Park Bonanza E. Townshouse Owners Ass'n, Inc., No. 2:19-cv-00968-JCM-BNW, 2020 WL 4004211, at *1-2 (D. Nev. July 15, 2020) (Mahan, J.); Kwasniewski v. Sanofi-Aventis U.S. LLC, No. 2:12-cv-00515-GMN-NJK, 2018 WL 1567851, at *3 (D. Nev. Mar. 30, 2018) (Navarro, C.J.); ALPS Prop. & Cas. Ins. Co. v. Levine Law Grp., Inc., No. 3:22-cv-00160-MMD-CSD, 2022 WL 2656753, at *1-2 (D. Nev. July 8, 2022) (Denney, J.); Robinson v. Las Vegas Metro. Police Dep't, No. 2:21-cv-01074-RFB-DJA, 2021 WL 5173616, at *1-2 (D. Nev. Nov. 4, 2021) (Albregts, J.); Flores v. Merck & Co., No. 3:21-cv-00166-MMD-CLB, 2021 WL 4781503, at *2-3 (D. Nev. Oct. 13, 2021) (Baldwin, J.); Las Vegas Sun, 2020 WL 2114352, at *4-6, 10-11 (Weksler, J.); Ernest Bock, LLC v. Steelman, No. 2:19-cv-01065-JAD-EJY, 2020 WL 13015786, at *1 (D. Nev. Mar. 17, 2020) (Youchah, J.); Martinez v. MXI Corp., No. 3:15-cv-00243-MMD-VPC, 2015 WL 8328275, at *3 (D. Nev. Dec. 8, 2015) (Cooke, J.); Chartis Spec. Ins., Co. v. Gemstone LVS, LLC, No. 2:11-cv-1669-MMD-CWH, 2012 WL 3277086, *2 (D. Nev. Aug. 8, 2012) (Hoffman, J.); Trzaska, 2011 WL 1233298, at *2-4 (Foley, J.).

B. THE MINORITY APPROACH

Notwithstanding the well-established jurisprudence discussed above, a minority approach within the District adjudicates motions to stay discovery by applying a dramatically less onerous “good cause”¹³ standard that can be satisfied by showing that discovery would be burdensome without consideration of the merits (or lack thereof) of the underlying dispositive motion. See, e.g., Schrader v. Wynn Las Vegas, LLC, No. 2:19-cv-02159-JCM-BNW, 2021 WL 4810324, at *4 (D. Nev. Oct. 14, 2021).¹⁴ The State Defendants urge this Court to join the minority approach, see, e.g., Docket No. 42, but the Court declines to do so.¹⁵

First and foremost, the State Defendants appear to be inviting legal error. The basic premise of the State Defendants’ position is that anticipated discovery would be costly, so a protective order preventing discovery should issue. See Docket No. 42 at 4; see also Schrader, 2021 WL 4810324, at *4 (requiring showing of “anticipated costs of discovery” to justify issuance of a stay). The critical flaw in the State Defendants’ position is that the governing rules do not envision issuance of a protective order to avoid the burden or expense of discovery; protective orders issue to avoid undue burden or expense. Fed. R. Civ. P. 26(c)(1) (“The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ․”). “[P]rotection from discovery does not flow from a finding of cost or inconvenience, which is inherent in all discovery, but from a finding that the cost or inconvenience is undue when weighed against the likely benefit of the discovery.” PlayUp, Inc. v. Mintas, 344 F.R.D. 429, 439-40 (D. Nev. 2023) (citing Roberts v. Clark Cnty. Sch. Dist., 312 F.R.D. 594, 603 (D. Nev. 2016)) (emphasis in original). Absent some unusual or extraordinary circumstance, the Court cannot find that engaging in discovery is unduly burdensome based on the pendency of a motion to dismiss without reviewing that motion to dismiss to determine if its resolution will render moot any discovery completed in the interim. See Kor Media, 294 F.R.D. at 583 (courts conduct the preliminary peek to determine whether engaging in “discovery is a waste of effort”); see also Twin City Fire Insurance, 124 F.R.D. at 653. That is true even when the subject discovery would be “expansive.” Turner Broadcasting, 175 F.R.D at 555; see also Las Vegas Sun, 2020 WL 2114352, at *10-11 (concluding that the “costly, burdensome discovery that lies ahead” in antitrust case was insufficient to warrant a stay). Consistent with the rule-based requirement to demonstrate that any burden is an undue one, the published cases from this District hold again and again that a showing that discovery may involve some inconvenience and expense is insufficient to stultify the progression of litigation until after a motion to dismiss is decided. See, e.g., Kor Media, 294 F.R.D. at 583; Tradebay, 278 F.R.D. at 601; Turner Broadcasting, 175 F.R.D at 556; Twin City Fire Insurance, 124 F.R.D. at 653. By contrast, the minority approach analyzes simply whether there is expense involved with conducting discovery. See, e.g., Jimemez v. GEICO Secure Ins. Co., No. 2:23-cv-01290-APG-BNW, 2023 WL 8254492, at *4 (D. Nev. Nov. 29, 2023) (granting stay of discovery because “Defendant articulates discovery will be expensive and time-consuming, involving litigation over the proper scope and various depositions of GEICO out-of-state personnel”). Such an approach does not square with the controlling language in the governing rule.

The legally precarious nature of the minority approach is, obviously, enough in and of itself to decline to follow it, but there are additional reasons to reject it. Most fundamentally, the minority approach is a sea change in this District's jurisprudence on a common motion. As discussed above and as recognized by Plaintiff, judges in this District (including the former Chief United States District Judge) have utilized the preliminary peek framework continuously for decades. See Docket No. 43 at 5-6. There is no contention that the preliminary peek framework is contrary to any new controlling legal authority. See Schrader, 2021 WL 4810324, at *4 (“These cases remain valid authority, and litigants may still move for a discovery stay under the preliminary peek test”). The minority approach is predicated, instead, on the contention that the settled jurisprudence on this issue in this District is only “persuasive authority.” See id. at *3 n.3. It is true enough that a decision at the district court level generally constitutes persuasive authority that is not binding on the other judges at the district court level, see Starbuck v. City & Cnty. of San Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977), but considerations of consistency and predictability militate in favor of adhering to well-settled law unless there is exceedingly persuasive justification for charting a new course, cf. Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455-56 (2015). While the State of Nevada may have historical ties to the “Wild West,” it is not a favored scenario for the state of the law within a single judicial district on common motion practice. See Herndon v. City of Henderson, 507 F. Supp. 3d 1243, 1247 n.7 (D. Nev. 2020) (casting doubt on earlier legal holding, but declining to “upset the apple cart” given the interest in stability and predictability); see also Trzaska, 2011 WL 1233298, at *4 (adhering to the standards for motions to stay discovery because, inter alia, the earlier decisions “have not been rejected or modified by other judges in this District”). The minority approach throws such considerations out the window, effectively creating a split of authority despite decades of settled law.

Nor is the Court persuaded by the reasoning advanced to justify the minority approach, which is echoed by the State Defendants in their current briefing exalting that minority approach as “a more realistic lens through which to view requests to stay discovery.” Docket No. 42 at 3-4. As one such reason, the State Defendants argue that a magistrate judge might not correctly predict the assigned district judge's resolution of the underlying dispositive motion. See id. at 3; see also Schrader, 2021 WL 4810324, at *3. Citing a law review article, cases adopting the minority approach suggest that the preliminary peek framework “introduces ․ error” into the process because the magistrate judge and district judge may view the underlying motion differently. See, e.g., Schrader, 2021 WL 4810324, at *3. The cited law review article also explains that engaging in a preliminary peek “allows courts to reduce their error rate, such that they reach the ‘right’ result more often. Courts applying the ‘preliminary peek’ test are less likely to stay discovery when a motion to dismiss will fail or to allow discovery to proceed when the motion to dismiss will succeed.” Kevin J. Lynch, When Staying Discovery Stays Justice: Analyzing Motions to Stay Discovery When a Motion to Dismiss is Pending, 47 Wake Forest L. Rev. 71, 101 (2012) (emphasis added). Indeed, that is the whole purpose of engaging in the preliminary peek. While the cases applying the preliminary peek framework acknowledge the sometimes awkward nature of having one judge predict the decision of another, e.g., Tradebay, 278 F.R.D. at 603, the preliminary peek plays an important part in ensuring that the Rule 1 goals are accomplished in each case, see id. Moreover, prognostication is a common aspect of judging as courts are tasked routinely with predicting outcomes of matters before other judges or other courts. See, e.g., Orkin v. Taylor, 487 F.3d 734, 741 (9th Cir. 2007) (“If the state's highest appellate court has not decided the question presented, then we must predict how the state's highest court would decide the question”). Magistrate judges are themselves tasked by statute and rule precisely to predict how district judges will resolve dispositive matters. See 28 U.S.C. § 636(b)(1)(B) (providing for magistrate judges to submit reports and recommendations to district judges for de novo review); see also Fed. R. Civ. P. 72(b); Local Rule IB 1-4.¹⁶ That the preliminary peek framework requires some level of prediction of another judge's decision is not sufficient justification to depart from the settled case law in this District.¹⁷

It has also been noted that applying the preliminary peek framework may lead in some cases to discovery being conducted in vain while a meritorious—but not perhaps convincing—motion to dismiss is pending. See Schrader, 2021 WL 4810324, at *3. Courts strive to avoid unnecessary cost in discovery, but they must balance that goal with the need for just and expeditious resolution of the matters before them. See Fed. R. Civ. P. 1. The judges in this District developed the standards for the preliminary peek framework in a thoughtful approach that balances all of the goals in Rule 1. E.g., Tradebay, 278 F.R.D. at 602-03. While recognizing that “[d]iscovery is expensive,” id. at 602, judges in this District have also highlighted that “a stay of discovery is directly at odds with the need for expeditious resolution of litigation,” id. at 601; accord Las Vegas Sun, 2020 WL 2114352, at *10. Applying an “overly lenient standard for granting motions to stay all discovery is likely to result in unnecessary delay in many cases,” Trzaska, 2011 WL 1233298, at *4. This delay in discovery is not simply a benign or inevitable element of federal litigation. Cf. in re: Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006) (collecting cases that the law “presumes prejudice from unreasonable delay”). Staying discovery delays resolution of the case and doing so without sufficient cause erodes the justness of the ultimate result. Dietrich v. Boeing Co., 14 F.4th 1089, 1095 (9th Cir. 2021) (noting “delays that conflict with one of the basic principles of our legal system—justice delayed is justice denied”); see also Grewal v. Jammu, 191 Cal. App. 4th 977, 999 (2011) (in addressing misuse of anti-SLAPP motions to stay proceedings, noting that “[a] well-known saying, generally attributable to William Gladstone, is that ‘Justice delayed is justice denied.’ A lesser known saying, known to be attributable to prominent defense lawyers from major law firms, is that ‘Justice delayed is justice’ ”).¹⁸ The Court is well-versed in the costs of discovery and the desire for inexpensive resolution of cases, but the Court must be equally cognizant that a plaintiff has a significant “interest in pursuing [the] case without delay.” See Snow Covered Cap., LLC v. Fonfa, No. 2:22-cv-01181-CDS-VCF, 2023 WL 205774, at *2 & n.1 (D. Nev. Jan. 17, 2023). Delaying a plaintiff's pursuit of justice premised on a bare desire to avoid the ordinary cost or inconvenience of discovery is an unjustifiable disservice to those coming to this courthouse as a forum to right a perceived wrong.

Moreover and significantly, the minority approach does not replace or reframe the “convincing” standard for the preliminary peek to account for its criticism; instead, it allows a stay of discovery without any reference to the merits of the underlying motion at all. Schrader, 2021 WL 4810324, at *4 (“good cause may exist based on other factors unrelated to the merits of the dispositive motion”).¹⁹ There is nothing inexpensive about staying discovery pending resolution of an unmeritorious motion to dismiss. When that motion to dismiss is denied, the same discovery costs will be incurred despite the case stagnating in contradiction of the Rule 1 goals for a just and speedy resolution. Cf. Kor Media, 294 F.R.D. at 583 (noting that overly permissive standards to stay discovery are “likely to result in unnecessary delay in many cases” (quoting Trzaska, 2011 WL 1233298, at *4)); see also Tradebay, 278 F.R.D. at 603 (noting that “[p]rohibiting or delaying all discovery will often cause unwarranted delay”). In that scenario, the defendants (and the court) simply postpone the inevitable with no countervailing benefit.²⁰ Hence, a stay of discovery without any consideration of the merits of the underlying motion does not promote the inexpensive resolution of cases, and it assuredly does not promote the just and speedy resolution of cases. On the other hand, the well-established preliminary peek framework appropriately balances all of the competing interests.

The State Defendants also argue that the preliminary peek framework is difficult to meet and that its application means that a stay of discovery is not warranted in most cases. See Docket No. 42 at 3; see also Schrader, 2021 WL 4810324, at *3. That is true and it is by design. See, e.g., Twin City Fire Insurance, 124 F.R.D. at 653 (“a pending [m]otion to [d]ismiss is not ordinarily a situation that in and of itself would warrant a stay of discovery”). Published Ninth Circuit authority highlights the liberal nature of discovery under the Federal Rules of Civil Procedure, as well as the correspondingly “heavy” burden of persuasion placed on those who wish to avoid discovery. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).²¹ Such authority leads naturally to a high bar to staying all discovery based on the pendency of a motion to dismiss. See Gray, 133 F.R.D. at 40; see also, e.g., Tradebay, 278 F.R.D. at 601 (“It is well-established that a party seeking a stay of discovery carries the heavy burden of making a strong showing why discovery should be denied”).²² That the preliminary peek framework correspondingly makes it difficult to obtain a stay of discovery is not sufficient justification to depart from settled law.

Lastly, the minority approach indicates that the preliminary peek standard does not account for the potential need to stay discovery in “complex cases, in which discovery will be extremely costly,” even though a pending dispositive motion may not be convincing in nature. See Schrader, 2021 WL 4810324, at *3. Not so. In light of the myriad variations in discovery, judges at the district court possess broad discretion to manage the discovery process in the interests of dispatch and fairness. V5 Techs. v. Switch, Ltd., 332 F.R.D. 356, 361 (D. Nev. 2019) (quoting Haviland v. Catholic Health Initiatives-Iowa, Corp., 692 F. Supp. 2d 1040, 1044 (S.D. Iowa 2010)). Courts already possess the discretion to grant a stay of discovery in deviation from the preliminary peek standards in exceptional and unusual cases. See Trzaska, 2011 WL 1233298, at *3 (“Absent extraordinary circumstances, litigation should not be delayed simply because a non-frivolous motion has been filed” (emphasis added)); see also Twin City Fire Insurance, 124 F.R.D. at 653 (requiring “[s]ome extraordinary justification” to stay discovery based on burden and expense). Truly extraordinary circumstances must be shown for the Court to stray from its north star in this analysis, however, and a showing that discovery will be expansive will not suffice. See Turner Broadcasting, 175 F.R.D. at 555, 556; see also Las Vegas Sun, 2020 WL 2114352, at *10.²³ Hence, while courts may stay discovery in deviation from the preliminary peek framework in a case that presents extraordinary circumstances, such deviation should be rare and not adopted as a new normal.

In short, the Court rejects the invitation to adopt the minority approach for staying discovery pending resolution of a motion to dismiss for failure to state a claim. The judges in this District have issued numerous published decisions to the contrary over the last four decades. E.g., Kor Media, 294 F.R.D. 579; Tradebay, 278 F.R.D. 597; Turner Broadcasting, 175 F.R.D. 554; Twin City Fire Insurance, 124 F.R.D. 652. Even more significantly, the new approach appears incompatible with the plain language of the governing rule. Lastly, the reasons advanced for the new approach are not persuasive, let alone do they rise to the level to justify such a departure from established precedent.

Accordingly, the Court will continue to apply the well-established standards that are succinctly summarized as follows:

The Court has broad discretionary power to control discovery. Little, 863 F.2d at 685. “The Federal Rules of Civil Procedure do not provide for automatic or blanket stays of discovery when a potentially dispositive motion is pending.” Tradebay, 278 F.R.D. at 601. Discovery should proceed absent a “strong showing” to the contrary. Turner Broadcasting, 175 F.R.D. at 556. That discovery may involve some inconvenience and expense is insufficient to justify a stay of discovery. Twin City Fire Insurance, 124 F.R.D. at 653. Instead, a sufficient showing of good cause to stay all discovery exists when: (1) the pending motion is potentially dispositive in scope and effect; (2) the potentially dispositive motion can be decided without additional discovery; and (3) the Court has taken a “preliminary peek” at the merits of the potentially dispositive motion and is convinced that the plaintiff will be unable to state a claim for relief. Kor Media, 294 F.R.D. at 581.

III. ANALYSIS

Having determined the appropriate legal framework for deciding the State Defendants’ motion to stay discovery, the Court turns to its analysis. The Court does not find a stay of discovery warranted. Most significantly, the Court has taken a preliminary peek at the motion to dismiss and is not convinced that it will be granted. For example, United States District Judge Jennifer A. Dorsey previously determined that the factual allegations in the initial complaint were not specific enough to state an Eighth Amendment claim for deliberate indifference, see Docket No. 26 at 9-12, and Plaintiff's amended complaint adds more specific factual allegations in support of that claim, see Docket No. 33 at 3 (collecting allegations in opposing motion to dismiss). Moreover, much of the case law cited by the State Defendants addresses the evidence necessary to survive a motion for summary judgment, as opposed to the factual allegations necessary to survive a motion to dismiss. See, e.g., Docket No. 31 at 9 (citing Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160-61 (9th Cir. 2013) (reviewing district court's granting of summary judgment)); see also Cardinali v. Plusfour, Inc., No. 2:16-cv-02046-JAD-NJK, 2019 WL 4723071, at *9 (D. Nev. Sept. 26, 2019) (distinguishing between burden to survive motion to dismiss and to survive summary judgment).²⁴ Given the entirety of the arguments presented, the Court is not convinced that Plaintiff will be unable to state a claim and, as a result, a stay of discovery is not warranted.

Moreover, the Court is not persuaded by the other arguments presented by the State Defendants. The State Defendants seek a different result by highlighting the fact that they raise a state law immunity that is meant to shield defendants from both liability and litigation itself. See, e.g., Docket No. 39 at 6-8. Courts have recognized that motions to dismiss raising immunity more commonly result in a stay of discovery, e.g., Tradebay, 278 F.R.D. at 601, but invoking immunity does not automatically translate into a stay of discovery, see, e.g., O'Grady-Sullivan v. Nev., No. 2:11-cv-00839-MMD-CWH, 2012 WL 3012434, at *2 (D. Nev. July 23, 2012) (denying motion to stay discovery pending resolution of motion for summary judgment invoking immunity). As argued persuasively by Plaintiff here, “[p]ermitting a stay of discovery based solely on the assertion of immunity as a defense would permit a party to circumvent their duty to provide discovery by simply filing a motion hoping that it buys them some time.” Docket No. 43 at 9.

The Court is not persuaded that invoking immunity in this case warrants a different result. Most significantly, the State Defendants have not meaningfully explained how this immunity could apply to all of Plaintiff's claims. See Docket No. 31 at 13 (arguing that discretionary immunity applies to Plaintiff's state law claims). The law has long been settled that a motion that may partially resolve a case is not a basis for a case-wide stay of discovery. E.g., Tradebay, 278 F.R.D. at 602. Similarly, the potential application of an immunity to a portion of the case is not grounds to stay all discovery, since that immunity does not impact the need for the discovery on the unaffected claims. See, e.g., Martinez v. Las Vegas Metro. Police Dep't, No. 2:20-cv-00618-JCM-NJK, 2020 WL 3166611, at *1 n.2 (D. Nev. June 9, 2020); O'Grady-Sullivan, 2012 WL 3012434, at *2.²⁵ Accordingly, the invocation of a state law discretionary immunity with respect to a subset of Plaintiff's claims does not suffice to stay all discovery related to the State Defendants.

IV. CONCLUSION

For the reasons discussed more fully above, the State Defendants’ motion to stay discovery is DENIED.

IT IS SO ORDERED.

FOOTNOTES

1.   The motion is brought by the State of Nevada (on behalf of the Nevada Department of Corrections) and the Director of the Nevada Department of Corrections, James Dzurenda. The Court refers to these parties as the “State Defendants.”

2.   As Plaintiff notes, the State Defendants’ arguments at times veer into whether an extension of case management deadlines is warranted, rather than whether a wholesale stay of discovery is appropriate. See, e.g., Docket No. 44 at 3 (addressing difficulty in meeting current deadlines). If the State Defendants believe a sufficient showing can be made to extend case management deadlines, see, e.g., Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), nothing herein prevents them from seeking that relief by filing a proper request.

3.   Parties and courts sometimes reference alternative sources of judicial authority to stay discovery, such as federal courts’ inherent authority to control their dockets. See, e.g., Kor Media Grp., LLC v. Green, 294 F.R.D. 579, 582 n.3 (D. Nev. 2013) (noting unelaborated invocation of inherent authority pursuant to Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). Given that a federal rule exists on this subject, however, the Court relies on the rule in guiding its exercise of discretion as to staying discovery. Cf. Borenstein v. Animal Found., No. 2:19-cv-00985-CDS-NJK, 2022 WL 3649284, at *5 n.12 (D. Nev. Aug. 24, 2022) (citing Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th Cir. 1994)), objections overruled, 2022 WL 11873581 (D. Nev. Oct. 20, 2022).

4.   The Court focuses its discussion primarily on motions to stay discovery pending resolution of motions to dismiss for failure to state a claim brought under Rule 12(b)(6). Motions to stay discovery pending resolution of other types of motion are frequently judged using the same analytical framework, but the standards may be altered somewhat given different interests implicated by the particular type of underlying motion. See, e.g., PlayUp, Inc. v. Mintas, 635 F. Supp. 3d 1087, 1099 (D. Nev. 2022) (addressing personal jurisdiction challenge).

5.   Some have suggested that Jarvis “held” that courts must stay discovery any time discovery is not necessary to resolve the underlying dispositive motion. See PlayUp, 635 F. Supp. 3d at 1100 n.11. The pertinent holding in Jarvis was that the district court did not abuse its discretion in denying discovery when the complaint did not raise factual issues for which discovery was required. See 833 F.2d at 155 (“since the appellants’ complaint did not raise factual issues that required discovery for their resolution, the district court did not abuse its discretion in staying discovery pending a hearing on the motion to dismiss”).

6.   The Ninth Circuit has also recognized that a plaintiff should not be permitted to engage in discovery as a means to state a claim and, further, that Rule 12(b)(6) is designed as a mechanism to allow dismissal of a claim without the incursion of discovery costs. See Keates v. Koile, 883 F.3d 1228, 1242 n.3 (9th Cir. 2018); Mujica v. AirScan Inc., 771 F.3d 580, 593 (9th Cir. 2014); Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987). These cases address the question of whether a district court properly dismissed a case upon finding the operative complaint deficient without providing the plaintiff an opportunity to conduct discovery. Stated differently, these cases address whether discovery is warranted after a motion to dismiss has been granted. These cases do not address the question of whether discovery should be stayed based on the pendency of a motion to dismiss. The filing of a motion to dismiss does not mandate a stay of discovery. Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. Cal. 1990) (“Had the Federal Rules contemplated that a motion to dismiss under [Rule] 12(b)(6) would stay discovery, the Rules would contain a provision to that effect”). The district court retains the discretion to require discovery to proceed notwithstanding the line of Ninth Circuit cases identified above. See Rae, 725 F.2d at 481 (noting discretionary nature of decision to “allow or deny discovery” when a motion to dismiss has been filed); see also Rutman Wine, 829 F.2d at 738 (in affirming dismissal of antitrust complaint and denial of discovery, indicating that it “is sounder policy to determine whether there is any reasonable likelihood that plaintiffs can construct a claim before forcing the parties to undergo the expense of discovery”); Las Vegas Sun, Inc. v. Adelson, No. 2:19-cv-01667-RFB-BNW, 2020 WL 2114352, at *4-6, 10-11 (D. Nev. May 4, 2020) (denying motion to stay discovery in antitrust case based on preliminary peek; “The Court's preliminary peek does not leave it convinced that [the plaintiff] will be unable to construct a claim. Thus, ordering that the parties move forward with discovery does not run afoul of the Supreme Court's stated concern for ‘sending parties into discovery when there is no reasonable likelihood that the plaintiffs can construct a claim from the events in the complaint’ ” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007)).

7.   Later that same year, United States Magistrate Judge Robert J. Johnston reiterated similar principles in a matter in which a motion to dismiss was filed challenging subject matter jurisdiction. See White v. Am. Tobacco Co., 125 F.R.D. 508, 510 (D. Nev. 1989). Judge Johnston further explained that a stay of discovery may be obtained only with respect to those defendants who file or join a dispositive motion. See id. Judge Johnston also made clear that other circumstances may defeat a motion to stay discovery, such as the movant's own efforts to obtain discovery before seeking a stay. Id.

8.   In a perfect world, motions to dismiss are decided soon after briefing is complete. The volume of this motion practice, coupled with years of judicial emergencies arising from vacancies on the bench, has impeded reaching that ideal. See id.

9.   Judge Leen's legal analysis dovetails from the earlier sentiments of United States Magistrate Judge George W. Foley, Jr. Trzaska v. Int'l Game Tech., No. 2:10-cv-02268-JCM-GWF, 2011 WL 1233298 (D. Nev. Mar. 29, 2011). Judge Foley similarly recognized that some courts had adopted more lenient standards by which a motion to stay discovery could be granted where the underlying dispositive motion had a “clear possibility” of being granted in that the underlying motion “is nearly below but does not necessarily exceed a fifty percent chance of success,” or even where the underlying motion simply “appears to be not unfounded in the law.” Id. at *3 (citations and internal quotations omitted). Judge Foley continued to hold to the stricter approach adopted in this District, however, given the settled nature of the case law here, the frequency in which motions to dismiss are filed, and the potential that an overly lenient standard for staying discovery “is likely to result in unnecessary delay in many cases.” Id. at *4. Judge Foley concluded that a stay of discovery is only warranted when the Court is convinced that an underlying dispositive motion will be granted. See id. Judge Foley expounded on that standard: “A merely colorable defense usually will not qualify to stay discovery. Generally, there must be no question in the court's mind that the dispositive motion will prevail, and therefore, discovery is a waste of effort.” Id. at *3 (emphasis in original).

10.   In 2013, United States Magistrate Judge Cam Ferenbach echoed Judge Leen's assessment of the legal landscape, as well as the conclusion that the standards articulated by Judge Reed and Judge Hunt continued to be the correct approach for resolving motions to stay discovery. Ministerio Roca Solida v. U.S. Dep't of Fish & Wildlife, 288 F.R.D. 500, 502-04 (D. Nev. 2013).

11.   Some judges describe this as a two-step analysis, by which the preliminary peek is conducted as part of the determination as to whether the underlying motion is potentially dispositive and can be decided without discovery. In the undersigned's view, the analysis entails three distinct issues as to (1) the dispositive scope and nature of the underlying motion, (2) the ability to resolve the underlying motion without discovery, and (3) the meritoriousness of the underlying motion. Regardless of whether the analysis is described as a two-step or three-step test, however, the considerations are the same.

12.   These are not “factors” for consideration, they are elements of a test that must all be met for a stay of discovery to be warranted. Las Vegas Sun, 2020 WL 2114352, at *4 n.6.

13.   There seems to be a suggestion that the minority approach is premised on a newly-unearthed “good cause” standard that was previously unknown and unconnected to the preliminary peek framework. See, e.g., Jaramillo v. Area 15 Las Vegas LLC, No. 2:21-cv-00891-RFB-BNW, 2021 WL 5826312, at *4 (D. Nev. Dec. 8, 2021) (differentiating a motion to stay discovery “based on the preliminary peek test” and a motion to stay discovery “based on Rule 26(c) of the Federal Rules of Civil Procedure”). Such a suggestion would be wrong. The preliminary peek framework is the good cause analysis for a protective order to stay discovery issued pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. See Turner Broadcasting, 175 F.R.D. at 555-56 (quoting Twin City Fire Insurance, 124 F.R.D. at 653); see also PlayUp, 635 F. Supp. 3d at 1097 n.7.

14.   The minority approach also requires a showing that the dispositive motion can be decided without further discovery. See id.

15.   The Court ordered briefing from the parties as to whether the minority approach “is legally tenable.” Docket No. 40. The subsequent briefing does not include robust discussion on that issue. Nonetheless, the Court has its own duty to correctly articulate and apply the law. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224 (9th Cir. 2000).

16.   The Court can certainly appreciate a magistrate judge's reluctance to opine on matters to be decided by the district judge, an independent judicial officer who can reach a contrary decision. Cf. Tradebay, 278 F.R.D. at 603. Nonetheless, the orderly resolution of cases generally requires the expression of opinions and judicial agreement (or disagreement) is simply part of the process. See Local Rules IB 3-1, 3-2 (procedure for district judge review of magistrate judge orders, as well as of reports and recommendations); see also Fed. R. App. P. 3 (procedure for appealing district court judgment to appellate court); 28 U.S.C. § 1292 (procedure for interlocutory appeal of non-final district court orders to appellate court); Fed. R. App. P. 35 (procedure for seeking en banc review of appellate panel decision); Sup. Ct. R. 12 (procedure for seeking Supreme Court review).

17.   The suggestion that engaging in a preliminary peek requires excessive effort by the magistrate judge is even less persuasive. See Docket No. 42 at 3; see also Schrader, 2021 WL 4810324, at *3. Such reasoning fails to account for the fact that the magistrate judge is engaging in a preliminary peek. A magistrate judge need not—and frequently does not—provide extensive written analysis of their view of the underlying dispositive motion practice in deciding a motion to stay discovery. See PlayUp, 635 F. Supp. 3d at 1099-1100; see also, e.g., Schrader, 2021 WL 4810324, at *4 (in conducting preliminary peek, noting that “[t]he Court will not, however, provide an in-depth analysis of its evaluation of the motions to dismiss”). Moreover, the need for a time-consuming review of the underlying motion is diminished by the adoption of the convincing standard. Cf. Turner Broadcasting, 175 F.R.D. at 556 (declining to adopt a “likely success” standard for staying discovery as a circumvention of the normal procedures for resolving a motion to dismiss and, instead, finding that “a stay might be appropriate where the complaint was utterly frivolous, or filed merely for settlement value”).

18.   The Court is not suggesting that the particular defendants or attorneys in this case are misusing the pending motion practice as a means to frustrate litigation.

19.   The minority approach faults the preliminary peek framework as “not well-suited for sorting which cases will be dismissed (and thus should have discovery stayed) from those cases that will proceed (and thus should not have discovery stayed).” Schrader, 2021 WL 4810324, at *3 (emphasis in original); see also id. (“applying the preliminary peek test does not always lead to ‘accurate results’ in which the cases that will ultimately be dismissed are stayed and vice versa”). The minority approach then replaces that preliminary peek framework with a test that does not even attempt to sort cases based on whether they will be dismissed. Id. at *4.

20.   As the Grewal court surmised, “something is wrong with this picture” if a defendant can successfully delay proceedings by simply lodging non-meritorious challenges to the plaintiff's case. 191 Cal. App. 4th at 1003. Adopting the minority approach opens the floodgates to unnecessary delays premised on motion practice that has little likelihood of disposing of the case because a defendant can stay discovery based solely on the fact that discovery is costly and that it has a meritless motion to dismiss pending. Once that initial motion to dismiss is denied, the defendant could presumably elongate the delay by seeking dismissal through a motion for reconsideration, see Local Rule 59-1, a motion for judgment on the pleadings, Fed. R. Civ. P. 12(c), or an early motion for summary judgment, Fed. R. Civ. P. 56(a), while simply renewing its assertion that discovery would be costly. Savvy defendants should not be given tools to delay proceedings indefinitely by simply filing dispositive motions. Cf. Snow Covered Capital, 2023 WL 205774, at *2 (“In my experience, defense attorneys sometimes attempt to frustrate litigation with unreasonable delays”).

21.   The Federal Rules of Civil Procedure highlight the need for proportionality in the discovery process. See Fed. R. Civ. P. 26(b)(1); see also Roberts, 312 F.R.D. at 603. While a proportionality analysis could entail consideration of the weakness of a claim or defense, it does not alter the premise that discovery should proceed on claims or defenses unless they are truly baseless. As explained by Judge Foley in the context of a pending motion for summary judgment:That [proportionality] consideration should not be given such significant weight that judges will now be generally required to decide whether a party's claim or defense is sufficiently strong to allow him to conduct discovery relevant thereto. Even weak claims or defenses are entitled to their day in court so long as there is a legal basis for them and genuine issues of material fact exist. Relevance, for purposes of discovery, remains broad even after the 2000 and 2015 amendments to Rule 26(b). Thus, while the court has the discretion to preclude discovery regarding baseless claims or defenses, it should not deny discovery solely on the grounds that the claims or defenses appear weak and there is a reasonable possibility that they will be dismissed on summary judgment.Acclaim Lighting, Inc. v. Bruck, No. 2:17-cv-00147-RFB-GWF, 2018 WL 11409432, at *6 (D. Nev. Apr. 6, 2018).

22.   Hence, obtaining a stay of discovery by “[s]atisfying the ‘good cause’ obligation is a challenging task.” Money, 2012 WL 1190858, at *4. In contrast to the need for a “strong showing” and the assignment of a “heavy burden” on those seeking to avoid discovery, the decisions applying the minority approach grant almost every motion to stay discovery, e.g., Jimemez, 2023 WL 8254492, at *4 (granting stay of discovery); MI-94, LLC v. Chemetall US, Inc., No. 2:23-cv-00647-CDS-DJA, 2023 WL 8186618, at *4-5 (D. Nev. Nov. 27, 2023) (same); Bloom v. Zuffa, LLC, No. 2:22-cv-00412-RFB-BNW, 2023 WL 6197341, at *4-5 (D. Nev. Sept. 22, 2023) (same); Speaks v. Emps. Holdings, Inc., No. 2:23-cv-0068-GMN-BNW, 2023 WL 4561451, at *4 (D. Nev. July 17, 2023) (same); Dehaan v. Hilton Grand Vacations Club, LLC, No. 2:23-cv-00644-RFB-DJA, 2023 U.S. Dist. Lexis 94409, at *2 (D. Nev. May 30, 2023) (same); Gibson v. MGM Resorts Int'l, No. 2:23-cv-00140-MMD-DJA, 2023 WL 4455726, at *4 (D. Nev. July 11, 2023) (same); Diminico v. Geico Cas. Co., No. 2:22-cv-01041-RFB-BNW, 2022 WL 16964795, at *4 (D. Nev. Nov. 16, 2022) (same); Page v. Shumaker Mallory, LLP, No. 2;21-cv-02002-KJD-BNW, 2022 WL 1308286, at *3 (D. Nev. Apr. 29, 2022) (same); Jaramillo, 2021 WL 5826312, at *4 (same); Schrader, 2021 WL 4810324, at *5 (same); see also Free Speech Found., Inc. v. Philadelphia Indemnity Ins. Co., No. 2:23-cv-01407-MMD-BNW, Docket No. 19 (D. Nev. Dec. 22, 2023) (same); Wong v. Night Swim Lane Tr., No. 2:22-cv-01985-APG-DJA, Docket No. 15 (D. Nev. Mar. 27, 2023) (same); DML Advisors Inc. v. Wang, No. 2:22-cv-00856-RFB-BNW, Docket No. 33 (D. Nev. Nov. 18, 2022) (same); Fremont Emergency Servs., Ltd. v. United Healthcare Ins. Co., No. 2:22-cv-01118-CDS-BNW, Docket No. 55 (D. Nev. Nov. 14, 2022) (same), objections overruled as moot, Docket No. 66 (D. Nev. Dec. 8, 2023); Salv, LLC v. Carrington Foreclosure Servs., LLC, No. 2:21-cv-02207-JCM-BNW, Docket No. 32 (D. Nev. Apr. 18, 2022) (same). It appears that a motion fails to establish a sufficient burden under the minority approach only when essentially no showing is made regarding the cost or inconvenience of discovery. See Allegiant Travel Co. v. R2 Sols. LLC, No. 2:22-cv-00828-CDS-BNW, 2022 WL 7686760, at *4 (D. Nev. Oct. 13, 2022); see also Wooters v. Experian Info. Sols., No. 2:22-cv-01691-CDS-BNW, 2023 WL 3584109, at *3 (D. Nev. May 22, 2023); Turner v. Harvard MedTech of Nev., LLC, No. 2:22-cv-01264-JCM-BNW, 2023 WL 3600920, at *4 (D. Nev. May 22, 2023). Hence, the minority approach replaces a stringent standard for allowing a defendant to avoid discovery only upon a strong showing with a new standard that delays discovery in nearly every case.

23.   Complex and wide-ranging antitrust matters provide a potential example of exceptional cases because they sometimes involve prohibitive discovery costs. See Twombly, 550 U.S. at 558-59; Rutman, 829 F.2d at 738. Even in complex antitrust matters, however, judges do not always grant a stay of discovery. See, e.g., Las Vegas Sun, 2020 WL 2114352, at *10-11 (denying motion to stay discovery in antitrust case with costly, burdensome discovery).

24.   Of course, whether dismissal of this claim is warranted will be decided by Judge Dorsey. The Court herein addresses only whether it is convinced that Plaintiff will be unable to state a claim. In conducting its preliminary peek, the Court has carefully reviewed the underlying motion to dismiss briefing, but it will not herein provide a lengthy discussion of the dismissal arguments. Cf. PlayUp, 635 F. Supp. 3d at 1099-1100.

25.   The State Defendants’ contention that they should be shielded from discovery is also undermined by their own actions. The State Defendants participated in a Rule 26(f) conference, Docket No. 25 at 2, filed a discovery plan that did not seek a stay of discovery, see id. at 2, 4, exchanged initial disclosures, see Docket No. 32 at 2, served Plaintiff with “comprehensive” written discovery requests, Docket No. 39 at 2, and received responses to their discovery requests, Docket No. 43 at 8. While the State Defendants attempt to explain such conduct as simply “[a]dhering to procedural rules,” Docket No. 42 at 6 (emphasis omitted), the circumstances cast significant doubt on the current request to avoid the State Defendants’ own discovery obligations after themselves engaging in discovery, cf. White, 125 F.R.D. at 510 (denying motion to stay discovery brought by defendants who had themselves obtained discovery in the case).

Nancy J. Koppe United States Magistrate Judge