United States District Court, D. New Mexico
NEW MEXICO SOCIETY FOR ACUPUNCTURE AND ASIAN MEDICINE, Plaintiff,
KINETACORE HOLDINGS, LLC, EDO ZYLSTRA, KERI MAYWHORT, and JOHN/JANE DOE, Defendants, and KINETACORE HOLDINGS, LLC, Counterclaimant,
NEW MEXICO SOCIETY FOR ACUPUNCTURE AND ASIAN MEDICINE, Counter-defendant.
ORDER GRANTING PLAINTIFF'S MOTION TO STAY
STEPHAN M. VIDMAR, United States Magistrate Judge
MATTER is before the Court on Plaintiff's Motion to Stay
Discovery, filed October 27, 2017. [Doc. 47]. Defendants
responded on November 8, 2017. [Doc. 53]. Plaintiff replied
on November 16, 2017. [Doc. 56]. The Court heard oral
argument on the motion on December 8, 2017. Having considered
the briefing, oral argument, relevant portions of the record,
and relevant law, and being otherwise fully advised in the
premises, the Court finds the motion is well-taken and will
February 10, 2017, Plaintiff filed suit in state court to
enjoin Defendants from conducting a training course for
physical therapists on the technique of “dry
needling.” [Doc. 1-1]. The first training course was to
take place on February 25-26, 2017. Id. at 1-2. The
case was removed on February 21, 2017. [Doc. 1]. Shortly
thereafter, Plaintiff filed a motion for a temporary
restraining order and preliminary injunction. [Doc. 10]. The
Honorable Judith C. Herrera, United States District Judge,
denied the motion at a hearing on February 23, 2017, and
ordered the parties to show cause why the case should not be
dismissed. [Docs. 17, 18]. Plaintiff indicated that it seeks
to permanently enjoin Defendants from engaging in the
practice of dry needling and otherwise enjoin Defendants from
engaging in the practice of medicine without a license. [Doc.
21]. Defendants stated in their response to the show-cause
order that they were evaluating “whether to file
antitrust or business tort counterclaims, ” were the
case to continue. [Doc. 19]. The case did continue and
discovery was opened. In their Amended Answer, Defendants
asserted counterclaims against Plaintiff for violation of the
Sherman Antitrust Act. [Doc. 38] at 16-19. On September 22,
2017, Plaintiff filed a motion for partial summary
judgment on its claim for injunctive relief [Doc.
40] and a motion to dismiss the counterclaims [Doc. 39].
now moves to stay all discovery pending resolution of its
motion to dismiss the counterclaims. [Doc. 47]. In the
alternative, Plaintiff requests a stay of discovery only as
to the counterclaims, pending resolution of the motion to
dismiss. Plaintiff argues that its claim for injunctive
relief turns on a single, narrow legal issue-“whether
Defendants' practice of ‘dry needling' falls
outside the statutory scope of physical therapy, as defined
by New Mexico law.” Id. at 1. Defendants'
antitrust counterclaims, on the other hand, expand the legal
and factual issues-and, thus, the scope of discovery.
Plaintiff contends that it is likely to prevail on its motion
to dismiss under the Noerr-Pennington immunity
doctrine, and suggests that Noerr-Pennington
immunity is analogous to other types of immunity that merit a
stay of discovery. Id. at 5-8. Permitting discovery
before resolution of the motion, Plaintiff argues, would be
unduly burdensome. Id. at 9-11.
response, Defendants contend that discovery on
Plaintiff's claim for injunctive relief should proceed,
and thus discovery on the counterclaims should also proceed.
[Doc. 53] at 5-7. Defendants argue that a motion to dismiss
does not itself provide the basis for a stay of discovery,
particularly where the motion would not dispose of the
entirety of the case. Id. at 7. Moreover,
Noerr-Pennington immunity is distinct from immunity
from suit; raising Noerr-Pennington immunity,
therefore, does not provide a basis for a stay of discovery.
Id. at 8- 10. Finally, Defendants argue that
Plaintiff has failed to show that discovery on the antitrust
claims would be unduly burdensome. Id. at 10-12.
may impose a stay of discovery pursuant to Fed.R.Civ.P.
26(c)(1), which provides 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.” See, e.g., Clark v.
Dashner, No. 14-cv-0965 KG/KK, 2015 WL 11181342, at *1
(D.N.M. Feb. 13, 2015); Varnell v. Dora Consol. Sch.
Dist., 12-cv-0905 JCH/GBW, 2013 WL 12155415, at *1
(D.N.M. Jan. 11, 2013). A court may also stay discovery as
part of its inherent power to control its own docket. See
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.”);
Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th
Cir. 2010). The party seeking a stay bears the burden of
establishing the need for it. Clinton, 520 U.S. at
deciding whether to stay discovery, courts may consider
whether there are pending motions that would dispose of the
case and whether such motions appear meritorious.
Clark, 2015 WL 11181342, at *1; Hartford Cas.
Ins. Co. v. Trinity Universal Ins. Co. of Kan.,
12-cv-1110 MV/KK, 2015 WL 12911729, at *2 (D.N.M. May 5,
2015). Likewise, courts may also weigh the burden of
discovery on the party seeking the stay against any prejudice
the stay would cause to the party opposing it. Id.
The party opposing a stay may demonstrate prejudice by
showing that it needs certain discovery to respond to
dispositive motions or that discovery may be lost during the
pendency of the stay. Id.
has shown that a stay of discovery is warranted here.
Defendants note that “[d]iscovery stays are only useful
and appropriate when the stay has the potential to obviate
the need for discovery altogether or at least substantially
limit the scope of such discovery.” [Doc. 53] at 6.
Resolution in Plaintiff's favor of the motion to dismiss
the counterclaims would indeed narrow the scope of the case
significantly and obviate the need for discovery. Defendants
argue that the motion to dismiss would not resolve the case
and that discovery is still needed on Plaintiff's claim
for injunctive relief. Because discovery on Plaintiff's
claim for injunctive relief should proceed, Defendant argues,
“discovery on the counterclaims should also
proceed.” Id. But Plaintiff asserts in its
briefing that its claim for injunctive relief may be resolved
without discovery and therefore requests a stay of all
discovery here. [Doc. 47] at 3; [Doc. 56] at 1. While
Defendants suggest in their response that they need discovery
in order to respond to Plaintiff's motion for summary
judgment,  they do not specify what
discovery they need. See [Doc. 53] at 6. At oral
argument, when questioned on the subject, counsel for
Defendants asserted that discovery was needed on the subject
of injuries that have resulted from dry needling. Plaintiff
asserts four undisputed material facts in its motion for
1. During the February Course, in Albuquerque, New Mexico, a
city located in Bernalillo County, on February 25-26, 2017,
lead course instructor Defendant Maywhort inserted needles
2. Defendant Kinetacore Holdings, LLC
(“Kinetacore”), through its employees and other
agents, promoted and offered the February Course.
3. The February Course was held with the authorization and
approval of Kinetacore Chief Executive Officer ...