United States District Court, D. New Mexico
L. KIRK TOMPKINS and SUSIE TOMPKINS, Plaintiffs,
LIFEWAY CHRISTIAN RESOURCES OF THE SOUTHERN BAPTIST CONVENTION “LIFEWAY”;THOM RAINER, PRESIDENT, “LIFEWAY”; JERRY L. RHYNE, C.F.O. “LIFEWAY”; LARRY D. CANNON, SEC “LIFEWAY”; GLORIETA 2.0 INC.; GLORIETA 2.0 INC.; DAVID WEEKLEY, DIRECTOR; GLORIETA 2.0, INC. IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; TERRY LOOPER, DIRECTOR GLORIETA 2.0 INC. IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; LEONARD RUSSO, DIRECTOR GLORIETA 2.0 INC. IN HIS OFFICIAL AND INDIVDUAL CAPACITY; ANTHONY SCOTT, AS EXECUTIVE DIRECTOR IN HIS OFFICIAL AND INDIVIDUAL CAPACITY OF GLORIETA 2.0 INC.; HAL HILL, AS CONSULTING DIRECTOR IN HIS OFFICIAL AND INDIVIDUAL CAPACITY OF GLORIETA 2.0 INC.; LINDA K. DEAN, TRUSTEE “LIFEWAY” N.M.; and JEFF WARD, DIRECTOR OF FINANCE AND ADMINISTRATION GLORIETA 2.0 INC., IN HIS OFFICIAL AND INDIVIDUAL CAPACITY Defendants.
OPINION & ORDER GRANTING MOTION TO STAY AND
STAYING PROCEEDINGS UNTIL RESOLUTION OF DEFENDANTS'
MOTION TO DISMISS
R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' emergency motion to stay
discovery pending resolution of three motions to dismiss
pro se Plaintiffs L. Kirk and Susie Tompkins'
amended complaint. [Doc. 31]. The Tompkins have sued more
than a dozen individual and entities for their alleged
malfeasance in connection with the 2013 sale of the Glorieta
Conference Center, a vast complex in Santa Fe County, New
Mexico and related termination of the Tompkins' ground
lease there. [Doc. 20]. In the pleading, the Tompkins note
their claims relate to an earlier action they filed in this
Court and that United States District Judge Browning
previously dismissed and the Tenth Circuit affirmed on
appeal. [Doc. 20, Am. Compl., ¶ 1]. Nonetheless, the
Tompkins believe they may move forward with their suit and
have now propounded 25 interrogatories and 27 requests for
production on Defendant Thom Rainer, president of the entity
that sold the Center. [Doc. 31-1]. Considering the case's
present posture and the parties' submissions, the Court
will stay proceedings.
Rule of Civil Procedure 26(d) governs the commencement of
discovery. Under Rule 26(d), “[a] party may not seek
discovery from any source before the parties have conferred
as required by Rule 26(f), except in a proceeding exempted
from initial disclosure . . . or where authorized by these
rules, stipulation or the court order.” Fed.R.Civ.P.
26(d)(1). Subsection (f)'s “meet and confer”
obligation, among other items, contemplates discussions
between the parties on written discovery and the
development of a plan for undertaking such discovery.
See Fed. R. Civ. P. 26(f)(2). Unless a case involves
administrative review, forfeitures, habeas corpus,
unrepresented wards or inmates, administrative subpoenas or
summons, actions by the government to recover benefits or
collect student loans, ancillary proceedings, or enforcement
of arbitration awards, discovery may not begin until the
parties have these basic discussions, the parties stipulate,
or the court allows it. See Fed. R. Civ. P. 26(d).
Court concludes that discovery is not yet permitted under the
Federal Rules. Tompkins assert five causes of action.
[See Doc. 20, ¶¶ 38-103 (alleging fraud
(Count I); denial of due process (Count II);
“unconscionable contract” (Count III); breach of
fiduciary duty (Count IV); and “extortion and malice
aforethought” (Count V))]. None of them sound in any of
the exceptions to Rule 26(d). Nor is there evidence that the
parties have met and conferred as required by Rule 26(f). Had
they done so, they would have developed jointly a discovery
plan that would address the very issue Defendants raise,
namely Defendants' stated desire to have the motions to
dismiss ruled on before moving forward. At the very least,
the parties would have presented the Court with their
inability to agree on the amount and timing of discovery. The
emergency motion to stay and the response themselves are
indicative of the absence of stipulation allowing discovery
to proceed. The Court has reviewed the docket and is
satisfied there has been no judicial sanction of early
Court is cognizant of the Tompkins' pro se
status; as they readily point out, the Court must construe
their papers liberally. See Garrett v. Selby, Connor,
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
This obligation, however, does not allow the Court to make
arguments on their behalf or excuse their compliance with
procedural rules. See Id. (explaining that
“[a]lthough a pro se litigant's pleadings
are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers, ”
the Tenth Circuit has required “pro se parties follow
the same rules of procedure that govern other
litigants” and will not “take on the
responsibility of serving as the litigant's
attorney”). Even liberally construed, Plaintiffs'
response does not identify any of the exceptions to the
meet-and-confer prerequisite to commencing discovery.
Instead, much of the argument is devoted to the lengthy
procedural history of their previous case.
fair, as the Tompkins note, the parties did file a notice
wherein the parties stipulated to extending Tompkins'
deadline to respond to pending motions and also agreeing that
responses to discovery would be due by a date certain. [Doc.
34]. The Court declines to accept this stipulation as the
type of consent Rule 26(d) requires of the parties to engage
in discovery without meeting and conferring. The notice of
extension concerns only responding to discovery, not engaging
in it, which permissibly includes lodging objections,
refusing to comply, and seeking a protective order. Notably,
the notice was filed after Defendants asked for an
emergency stay, not before the Tompkins propounded their
requests. Nor have Defendants' withdrawn their motion as
they have other filings. Discovery is premature under the
rules, and Defendants should be relieved of the burden of
engaging in it.
extent the parties would have to meet and confer prior to the
resolution of the dispositive motions or to the extent the
notice of extension might constitute a stipulation under Rule
26(d), the Court concludes there is good cause for a stay. As
the Supreme Court has held, federal courts possess the
inherent authority to stay discovery. Clinton v.
Jones, 520 U.S. 681, 706 (1997) (“The District
Court has broad discretion to stay proceedings as an incident
to its power to control its own docket”) (citation
omitted). Rule 26 similarly empowers the Court to protect a
party from unduly burdensome discovery. See 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”). The party seeking to avoid discovery,
however, must establish a particular need for the stay.
See Clinton, 520 U.S. at 707.
United States Magistrate Judge William Lynch of this District
has explained, the Court “may consider whether there
are pending motions that would dispose of the entire case,
and whether those motions appear meritorious or raise
substantial concerns regarding the viability of the
plaintiff's claims.” Maestas v. Seidel,
2017 U.S. Dist. LEXIS 36969, *2 (D.N.M. Mar. 15, 2017)
(citation omitted). In determining the propriety of staying
discovery, the Court should also examine the burden to the
non-movant as well as any potential prejudice. A party
opposing the stay may defeat it if discovery is necessary to
resist a dispositive motion or information may be lost if a
stay goes into effect. See id.
this framework, the Court determines a stay is appropriate.
Defendants have sought dismissal in three separate filings.
If granted, these motions would dispose of all of the counts.
At least facially, there appears to be some merit to
Defendants contention that the doctrines of claim and issue
preclusion bar recovery, especially in light of the Tompkins
own concession that the case is related to a previous action
that has been dismissed. The litigation is in its early life.
Absent a court order or stipulation, Rule 26 would not even
permit discovery. Defendants' motions are legally, not
factually driven: they appear to accept the pleaded and
judicially noticeable facts as true, obviating the Tompkins
need for immediate discovery. The Tompkins do not claim that
material information will be lost if a stay is granted. The
Court recognizes that the Tompkins' challenge
Defendants' recitation of the procedural posture of the
past case and, liberally construed, attack the elements of
the collateral estoppel and res judicata. At this
stage of the litigation, however, a stay will not affect
Tompkins' ability contest Defendants' preclusion
arguments, and there does not appear to be any appreciable
prejudice to the Tompkins from whatever brief delay occurs
while the Court rules on the dispositive motions.
reasons state above, a stay of discovery is warranted while
the Court considers the Defendants' motions to dismiss.
it is ORDERED that Defendants' motion to stay [Doc. 31]
is GRANTED. All discovery in this case is STAYED until
further order from the Court after Defendants' motions to
dismiss have been resolved.
further ORDERED that the parties must ensure in the future
that they appropriately sign all filings with the Court,
include on any pleading the party's mailing address,
email address, and telephone number, and that they properly
serve the other party(ies) or, if ...