United States District Court, D. New Mexico
Blair Dunn, Dori Ellen Richards, Western Agriculture Resource
and Business Advocates, LLP, Attorneys for the Plaintiffs
Catherine C De Baca and Gary Cianchetti
Louise Boelcke Mark Dow Bauman Dow & Stambaugh, P.C.
Albuquerque, New Mexico -and- Thomas L. Tosdal Tosdal Law
Firm Solana Beach, California Attorneys for the Plaintiffs
Gerald Ohlsen, Janet Youngberg, James Farrington, Thomas
Derochie, Caryn DeRochie, William McClellan, Donna McClellan,
Nancy Higgins, Vernon Cobb, Binda Cobb, Christine Wood, Mark
Thompson, Donald Giles, Bonnie Long, Thomas Bragg, Diane
Bragg, Ernest Vigil, Frieda Vigil, Brad Wosick, Johnny Luna,
Deanne Luna, Marlene Barber, Michael McDaniel, Paula Wilten,
Martin Valencia, Vested Interest, LLC, Janice Farrington, Ken
Kugler, Debbie Kugler, David Lee, Diana Lee, Joseph Lee,
Alicia Lee, Ed Mortensen, Katherine Mortensen, David Coulter,
Matt Urban, Marie Urban, and Olympia Salas.
Grotefeld Anooj Manu Thakrar Kevin Scott Mosley Cristina
Gonzalez Grotefeld Hoffmann Austin, Texas Attorneys for the
Plaintiffs State Farm Fire & Casualty Co., Safeco
Insurance Company of America, and Allstate Insurance Company.
Lloyd Sais Plaintiff pro se
Lucille Sais Plaintiff pro se
Apodaca Plaintiff pro se
Christine Apodaca Plaintiff pro se
Vladislav Kushnir VB Kusnir, LLC Trevose, Pennsylvania
Attorney for the Plaintiff Homesite Indemnity Company
Christopher F. Jeu Ruth Fuess Keegan Roberto D. Ortega
Assistant United States Attorneys Albuquerque, New Mexico
Attorneys for the Defendants United States of America, United
States Department of Agriculture, United States Forest
Service, Natural Resources Conservation Service, Bureau of
Indian Affairs, and FNU Does
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Defendant's
Emergency Motion for a Partial Stay of Discovery and
Memorandum in Support, filed November 6, 2018 (Doc.
66)(“Motion”). The Court held a hearing on
November 21, 2018. See Clerk's Minutes at 1,
filed November 21, 2018 (Doc. 84). The primary issue is
whether the Court should stay discovery pending the
Court's decision on the United States of America's
Motion to Dismiss Claims for Lack of Subject Matter
Jurisdiction or in the Alternative for Partial Summary
Judgment, and Memorandum in Support, filed November 2, 2018
(Doc. 60)(“First MTD”); the United States of
America's Motion to Dismiss Ohlsen
Plaintiffs' Second Amended Complaint Due to Lack of
Subject Matter Jurisdiction, filed November 2, 2018 (Doc.
62)(“Second MTD”); the United States of
America's Motion to Dismiss Plaintiff Catherine C De
Baca's Amended Complaint and Gary Cianchetti's
Complaint Due to Lack of Subject Matter Jurisdiction, filed
November 5, 2018 (Doc. 64)(“Third MTD”); and the
United States of America's Motion to Dismiss Plaintiffs
Sais, Apodaca and Sorroche's Amended Complaint Due to
Lack of Subject Matter Jurisdiction, filed November 15, 2018
(Doc. 80)(“Fourth MTD”)(collectively, “the
MTDs”). The Court concludes that, because staying
discovery would impede the Plaintiffs' ability to respond
to the MTDs, the Court will deny the Motion and will allow
discovery to continue.
Court has consolidated C De Baca v. United States of
America, No. 17-1661 JB\KK; Cianchetti v. United
States of America, No. CIV 17-1186 JB\KK; Ohlsen v.
United States of America, No. CIV 18-0096 JB\KK;
State Farm Fire and Casualty Co. v. United States,
No. CIV 18-0367 JB\KK; Homesite Indemnity Co. v. United
States, No. CIV 17-1233 JB\SCY; and Sais v. United
States, No. CIV 18-0496 JB\JHR. See Order
Granting Unopposed Motion to Consolidate at 1, filed June 5,
2018 (Doc. 20); Order Granting Motion to Consolidate at 2,
filed November 5, 2018 (Doc. 69). The Court takes its facts
from the Plaintiff s Amended Complaint for Negligence Arising
Under the Federal Tort Claims Act, filed November 27, 2017
(Doc. 5)(“C De Baca Amended Complaint”);
Plaintiffs Complaint for Negligence Arising Under the Federal
Tort Claims Act, filed May 3, 2018 (Doc.
18-1)(“Cianchetti Complaint”); Ohlsen
Plaintiffs' Second Amended Complaint, filed August 15,
2018 (Doc. 38)(“Ohlsen Second Amended
Complaint”); and Amended Complaint, filed November 13,
2018 (Doc. 78)(“State Farm Amended Complaint”).
The Court provides these facts for background. It does not
adopt them as the truth, and it recognizes that these facts
are largely the Plaintiffs' version of events.
2016, the United States of America Forest Service
(“Forest Service”) contracted with the Isleta
Pueblo to thin the Cibola National Forest, south of
Albuquerque in the State of New Mexico. See State
Farm Amended Complaint ¶ 11, at 4; id ¶
15, at 5. The Forest Service supervised the forest thinning
project as “part of a cooperative agreement known as
the ‘Isleta Collaborative Landscape Restoration
Project, '” which was undertaken by eleven
“government agencies including the USFS, the Natural
Resource Conservation Service . . ., and the Bureau of Indian
Affairs.” State Farm Amended Complaint ¶¶
12-13, at 4-5. The Forest Service directed and controlled the
Isleta Pueblo's work. See State Farm Amended
Complaint ¶ 17, at 5.
Isleta Pueblo thinning crew used “a masticator1 to shred brush and
trees into mulch.” C De Baca Amended Complaint ¶
12, at 2. Masticators can “potentially ignite wildfires
through sparks generated when the metal head strikes against
rock.” State Farm Amended Complaint ¶ 18(c), at 6.
The Isleta Pueblo undertook the thinning in an area
containing “logging slash2 and a high quantity of forest fuels,
” C De Baca Amended Complaint ¶ 13, at 2-3, and
“during a drought and in hot, dry, and windy conditions
during the New Mexico fire season, ” Ohlsen Second
Amended Complaint ¶ 17, at 5. The masticator either
“was not in proper working order, or was not the proper
equipment for the terrain, ” and, on June 14, 2016,
sparks from the masticator ignited a forest fire. C De Baca
Amended Complaint ¶¶ 14-16, at 3; id.
¶ 17, at 3.
forest fire became known as the “Doghead Fire.” C
De Baca Amended Complaint ¶ 17, at 3. The Doghead Fire
burned “out of control, ” C De Baca Amended
Complaint ¶ 17, at 3, and “spread to neighboring
properties, ” State Farm Amended Complaint ¶ 11,
at 4. The Isleta Pueblo thinning crew “was not
adequately trained or equipped to prevent or immediately
suppress a fire, and made no attempt to immediately suppress
the fire.” Ohlsen Second Amended Complaint ¶ 19,
at 5. The Forest Service, “New Mexico State Forestry,
Bureau of Indian Affairs, and Bureau of Land Management
shared command of the fire, ” and the Forest Service
“declined to allow first responders to put out the
initial fire.” C De Baca Amended Complaint ¶ 16,
at 3; id ¶ 18, at 3. On the Doghead Fire's
second day, “evacuations were ordered of all residences
and business in the line of fire.” C De Baca Amended
Compliant ¶ 22, at 3. The Doghead Fire destroyed twelve
residences and forty-four structures “in and
near” Chilili, New Mexico. C De Baca Amended Complaint
¶ 21, at 3. The Plaintiffs' properties were among
the property destroyed. See C De Baca Amended
Complaint ¶ 29, at 4; Cianchetti Complaint ¶¶
25, 28, at 6; Ohlsen Second Amended Complaint ¶ 1, at 1;
State Farm Complaint ¶ 19, at 6.
July 6, 2018, hearing before the Honorable Kirtan Khalsa,
United States Magistrate Judge for the District of New
Mexico, Defendant United States requested a discovery stay
until the Court decides “all dispositive motions”
that the United States plans to file. Clerk's Minutes at
1, filed July 6, 2018 (Doc. 28). Magistrate Judge Khalsa
denied the United States' request and informed the United
States that, after filing its dispositive motions, it could
file a motion to stay discovery. See Clerk's
Minutes at 1. On November 2, 2018, the United States filed
the First MTD, arguing that, because the Isleta Pueblo
thinning crew were independent contractors, the Court should
dismiss all the Plaintiffs' claims under rules 12(b)(1)
and 12(b)(6) of the Federal Rules of Evidence, and, in the
alternative, seeking a partial summary judgment. See
First MTD at 1-2. The same day, the United States filed the
Second MTD, seeking dismissal under 12(b)(1) of the
Ohlsen v. United States of America Plaintiffs'
claims, because the Ohlsen v. United States of
America Plaintiffs' failed to exhaust their
administrative remedies, and because the
discretionary-function and independent-contractor exceptions
bar their claims. See Second MTD at 27. On November
5, 2018, the United States filed the Third MTD, arguing that
the Court should dismiss, under rule 12(b)(1), Plaintiff
Catherine C De Baca's claims, because she failed to
exhaust administrative remedies and because the
discretionary-function and independent-contractor exceptions
bar her claims. See Third MTD at 15. The next day,
November 6, 2018, the United States filed the Motion.
See Motion at 6. On November 15, 2018, the United
States filed another dispositive motion -- the Fourth MTD,
seeking the dismissal, under rule 12(b)(1) of the Sais v.
United States Plaintiffs' claims because the
Sais v. United States Plaintiffs failed to exhaust
administrative remedies, and because the
discretionary-function and independent-contractor exceptions
bar the Plaintiffs' claims. See Fourth MTD at
United States asks the Court to partially stay discovery
pending the Court's resolution of the First MTD, Second
MTD, and Third MTD. See Motion at 1. The United
States argues that a stay is appropriate, because the United
States has filed dispositive motions challenging the
Court's subject-matter jurisdiction. See Motion
at 2-3 (citing Stonecipher v. Valles, 759 F.3d 1134,
1148 (10th Cir. 2014); Moore v. Busby, 92 Fed.Appx.
699, 702 (10th Cir. 2004)(unpublished); Vivid Techs.,
Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d 795,
804 (Fed. Cir. 1999); Chavous v. D.C. Fin. Responsibility
& Mgmt. Assistance Auth., 201 F.R.D. 1, 3 (D.D.C.
2001)(Robinson, J.)). The United States contends that the
Federal Tort Claims Act, 28 U.S.C. §§ 1291, 1346,
1402, 2401-02, 2411, 2412, 2671-80 (“FTCA”),
exceptions are jurisdictional and that, before the Court
reaches the case's merits, the Court must decide the
jurisdictional issues. See Motion at 3 (citing
Farmer v. Banco Popular of N. Am., 791 F.3d 1246,
1254 (10th Cir. 2015); Garcia v. U.S. Air Force, 533
F.3d 1170, 1175 (10th Cir. 2008); Edwards-Flynn v.
Yara, No. CIV 08-0186 JB/ACT, 2009 WL 1588687, at *3
(D.N.M. May 27, 2009)(Browning, J.)). The United States avers
that, if the Court declines to grant the stay and the United
States succeeds on the First, Second, and Third MTDs, the
parties “will incur significant time and expense in
discovery.” Motion at 4 (citing Coastal States Gas
Corp. v. Dep't of Energy, 84 F.R.D. 278, 282 (D.
Del. 1979)(Schwartz, J.)). The United States continues that a
stay will not prejudice the Plaintiffs, because the
Plaintiffs have already benefited from considerable discovery
-- production of “over 6, 000 pages of documents”
and seven depositions -- and because the Plaintiffs do not
yet require discovery on the merits. Motion at 4. Finally,
the United States notes that the Plaintiffs' most recent
request to depose an Isleta Pueblo employee would likely not
reveal information related to the First, Second, and Third
MTDs MTDs. See Motion at 5. The United States admits
in a footnote that the deposition of Anthony Martinez, the
“Fire Management Officer for the Mountainair Ranger
District, Cibola National Forest and National Grasslands, is
relevant to the MTDs.” Motion at 2 n.1.
November 20, 2018, the Plaintiffs responded. See
Plaintiffs' Joint Response in Opposition to
Defendant's Emergency Motion for a Partial Stay of
Discovery at 12, filed November 20, 2018 (Doc.
82)(“Response”). The Plaintiffs note that they
have “already agreed to a stay of damages
discovery” but ask that the Court not stay discovery on
the merits regarding liability. Response at 1. First, the
Plaintiffs contend that the United States bears the
“difficult burden” of proving its need for a stay
and that it has not shown this need. Response at 2-3 (citing
Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936);
Saenz v. Lovington Mun. Sch. Dist, No. CIV 14-1005
JB/SMV, 2015 WL 1906140 (April 6, 2015)(Browning, J.)).
According to the Plaintiffs, the United States has stated
only that a stay will save the parties time and expenses.
See Response at 3. The Plaintiffs contend that this
statement does not identify specific harms that the United
States will experience if the Court denies a discovery stay,
and that the discovery that the Plaintiffs seek “will
not be expensive or burdensome.” Response at 3.
the Plaintiffs contend that, after Magistrate Judge Khalsa
denied the United States' request for a stay, the United
States has not cooperated in discovery. See Response
at 3-4. The Plaintiffs argue that the United States refused
to cooperate in setting dates for depositions and, that
without the United States' reluctance to set dates for
the depositions, the Plaintiffs would have completed the
depositions by this time. See Response at 4-5. The
Plaintiffs also aver that, although the Plaintiffs requested
work prescriptions for the Isleta Pueblo thinning crew in
July, 2018, the United States waited until November, 2018, to
produce the work prescriptions. See Response at 5.
The Plaintiffs contend that they now require additional
discovery to determine whether the Isleta Pueblo thinning
crew followed the work prescriptions. See Response
the Plaintiffs ask that the Court deny the Motion, because
the First MTD argues for dismissal for lack of subject-matter
jurisdiction or for partial summary judgment, and a party
should be allowed discovery on the facts that a summary
judgment motion raises. See Response at 5 (citing
Bell Helicopter Textron, Inc. v. Heliqwest Int'l
Ltd., 385 F.3d 1291, 1298 (10th Cir. 2004); Sizova
v. Nat'l Inst. of Standards & Tech., 282 F.3d
1320, 1326 (10th Cir. 2002); Budde v. Ling-Temco-Vought
Inc., 511 F.2d 1033, 1035 (10th Cir. 1975); Rome v.
Romero, 225 F.R.D. 640, 643-644 (D. Colo. 2004)(Krieger,
J.)). The Plaintiffs contend that, under rule 56(d) of the
Federal Rules of Civil Procedure, the Court must allow the
Plaintiffs discovery. See Response at 6. The
Plaintiffs further argue that, to respond to the First,
Second, and Third MTDs MTDs, the Plaintiffs require more
discovery than the United States is willing to allow them.
See Response at 6. The Plaintiffs contend that the
First, Second, and Third MTDs are intertwined with the
merits, because the United States argues that the members of
the Isleta Pueblo thinning crew are not United States
employees. See Response at 6. The Plaintiffs
indicate that, “[w]here the claim and basis of the
motion to dismiss arise from the same statute, as here, the
motion is ‘necessarily intertwined' with the
merits, ” Response at 6 (quoting U.S. ex rel Hafler
v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1159
(10th Cir. 1999); and citing Wheeler v. Hurdman, 825
F.2d 257, 259 n.5 (10th Cir.)), and that, “when
jurisdictional facts are intertwined with the facts central
to the merits, the movant challenges both the Court's
jurisdiction as well as the existence of Plaintiff's
claim, ” Response at 6 (citing Kerns v. United
States, 585 F.3d 187, 193 (4th Cir. 2009)). The
Plaintiffs argue that the FTCA's discretionary-function
and independent-contractor defenses require the Court to look
to facts outside the Complaint, and so the Court should allow
the Plaintiffs to engage in discovery to determine those
facts. See Response at 6-7.
the Plaintiffs contend that, to “address the
discretionary function defense, ” the Plaintiffs must
finish discovery on several actions that the Forest Service
took as an agency and through the Isleta Pueblo thinning crew
that violated “mandatory regulations and requirements,
” including limiting the Isleta Pueblo thinning
crew's slash depth “to a maximum of 18
[inches]”; directing the Isleta Pueblo crew to use the
masticator “on rocky ground where it was known that the
rotation of the steel teeth create a fire risk”;
disregarding the risks created by allowing “the slash
to dry out and accumulate over the 18 [inch] maximum to a
height of over 36 [inches]”; not creating a safety
plan; not maintaining fire safety tools near the thinning
site; not fulfilling the responsibility “for preventing
and extinguishing all fires”; not training the Isleta
Pueblo thinning crew's masticator operator in accordance
with “the FT400 Masticator Operating Manual by a
certified trainer”; not “turn[ing] off the
masticator, get[ting] off the masticator and attempt[ing] to
put out any fire that started”; and not burning
“the slash after it was cut.” Response at 8-9.
The Plaintiffs note that their preferred test for the
FTCA's independent-contractor defense is highly fact
specific. See Response at 9-10. The Plaintiffs
explain that, to refute the United States'
discretionary-function and independent-contractor arguments,
the Plaintiffs hope to depose: (i) Francisco Luceras, a
Forest Service “project inspector whose job it was to
visit the forest thinning operations” and who recorded
the “work instructions” given to the Isleta
Pueblo thinning crew; (ii) Martinez; (iii) Jay Turner, the
“ranger of the Mountainair Ranger District”; (iv)
Mark Dixon, “the Manager of the Isleta Division of
Natural Resources, ” who worked on the forest thinning
project from the Isleta Pueblo side; and (v) “two fire
investigators, ” who can speak to the Doghead
Fire's cause. Response at 10.
the Plaintiffs contend that granting a stay will prejudice
the Plaintiffs. See Response at 11. The Plaintiffs
note that, if the Court denies them discovery, the Court
deprives them of information required to combat the First,
Second, and Third MTDs and of the ability to obtain
compensation from the United States. See Response at
hearing, the Court began by indicating that it was inclined
to deny the Motion. See Draft Transcript of Hearing
at 66:6-8 (taken November 21,
2018)(Court)(“Tr.”). The Court noted that it
typically does not grant stays pending dispositive motions
unless all parties agree to the stay and that the Court does
not view sovereign immunity motions in FTCA cases as
particularly special. See Tr. at 66:7-25 (Court).
Further, the Court noted that the Plaintiffs have shown that
they require discovery. See Tr. at 67:2-4 (Court).
United States repeated its arguments from the Motion.
See Tr. at 67:18-68:9 (Ortega). The Court responded
that the United States Court of Appeals for the Tenth Circuit
has not mandated stays when the United States' raises, in
FTCA cases, sovereign immunity defenses. See Tr. at
68:10-12 (Court). The United States cited Garcia v.
United States Air Force for the proposition that the
Tenth Circuit has confirmed discovery stays pending motions
challenging subject-matter jurisdiction and Tapia v. City
of Albuquerque, No. CIV 13-0206 JB/GBW, 2014 WL 1289609
(D.N.M. March 17, 2014)(Browning, J.), to illustrate that the
Court has agreed with the principle. See Tr. at
68:13-20 (Ortega); id. at 69:3-8 (Ortega). The Court
noted that Tapia v. City of Albuquerque addressed a
stay pending a 42 U.S.C. § 1983 qualified immunity
motion and that Tapia v. City of Albuquerque follows
Tenth Circuit caselaw, which indicates that qualified
immunity protects against suits and liability. See
Tr. at 69:13-70:1 (Court). The United States cited other
cases in which the District of New Mexico has granted
discovery stays outside the context of qualified immunity,
including Saenz v. Lovington Municipal School
District 2015 WL 1906140; Deschine v. United
States, No. CIV 14-0018 MV/KBM, 2014 WL 11512631 (D.N.M.
Oct. 10, 2014)(Molzen, M.J.); and Roybal v. United
States, No. CIV 13-610 KG/GBW, 2014 WL 12617288 (D.N.M.
April 9, 2014)(Wormuth, M.J.). See Tr. at 70:2-6
(Ortega); id at 70:12-18 (Ortega).
Court asked for what date the Court and the parties had set a
hearing on the MTDs, and the Court and the parties determined
that the dates for the hearings are January 22 and 23, 2019.
See Tr. at 70:19-71:3 (Court, Clerk, Ortega, Dow).
The United States argued that a stay would not prejudice the
Plaintiffs, because the Plaintiffs had already obtained over
6, 000 pages from the United States and had engaged in seven
depositions. See Tr. at 71:12-24 (Ortega). The
United States responded to the Plaintiffs' accusations
that the United States flaunted Magistrate Judge Khalsa's
discovery order and contended that the United States had not
slowed discovery, although “there [have] been some
hiccups in this case and that may have to do with some
counsel are from . . . other districts.” Tr. at
72:10-12 (Ortega). See id at 72:25-73:5 (Ortega).
The United States argued that it did not delay any
depositions intentionally and that arranging depositions
requires juggling multiple schedules. See Tr. at
72:23-75:10 (Ortega). The United States contended that the
Plaintiffs have enough evidence to respond to the MTDs.
See Tr. at 75:11-76:76:22 (Ortega). The United
States further indicated that the Plaintiffs require no
discovery to respond to the Second MTD, which argues that the
Plaintiffs failed to exhaust their administrative remedies.
See Tr. at 76:23-77:12 (Ortega).
Court asked the Plaintiffs whether “it ma[d]e sense to
pull up a couple of these motion[s] [-- particularly the
“exhaustion and contractor one”- ]instead of
having one big hearing in late January.” Tr. at 78:7-11
(Court). The Plaintiffs estimated that they seek the
equivalent of three additional days of discovery and six
additional depositions, and argue that there is no reason to
deny them that discovery. See Tr. at 78:12-79:19
(Dow); id at 80:2-6 (Dow). The Plaintiffs also noted
that the United States asked for a partial summary judgment,
and that, in the request for a partial summary judgment, the
United States referenced Dixon and the Plaintiffs,
accordingly, seek to depose him. See Tr. at
79:24-80:5 (Dow). The Court asked the Plaintiffs about the
administrative-exhaustion argument, and the Plaintiffs
replied that, although they had focused on the FTCA
arguments, they “don't see how the Government can
make such [an exhaustion ]motion.” Tr. at 70:16-17
(Dow). See id at 80:11-24 (Court, Dow).
Court indicated that, at this time, it could not determine
the relevance of the discovery that the Plaintiffs request.
See Tr. at 83:6-13 (Court). The Court stated that it
would follow its “usual rules of denying stays pending
dispositive motions unless both parties agree to the stay and
that the Court would deny the Motion. Tr. at 73:17 (Court).
See id at 83:5-23 (Court).
has broad discretion in managing its docket, which includes
decisions regarding issuing stays for all or part of a
proceeding. 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.” (citing Lands v. N. Am. Co., 299 U.S.
248, 254 (1936))).
[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. How this can best be
done calls for the exercise of judgment, which must weigh
competing interests and maintain an even balance.
Landis v. N. Am. Co., 299 U.S. at 254-55.
Recognizing that district courts must exercise moderation in
issuing stays, the Supreme Court of the United States has
noted that there are no strict rules for the district court
to apply, because “[s]uch a formula . . . is too
mechanical and narrow.” Landis v. N. Am. Co.,
299 U.S. at 255.
party seeking a stay generally faces a difficult burden.
See Clinton v. Jones, 520 U.S. at 708 (“The
proponent of a stay bears the burden of establishing its
need.”); S2 Automation LLC v. Micron Tech.,
Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3150412, at *2
(D.N.M. July 23, 2012)(Browning, J.)(citing Commodity
Futures Trading Comm'n v. Chilcott Portfolio Mgmt,
Inc., 713 F.2d 1477, 1484 (10th Cir. 1983)). “In
particular, where a movant seeks relief that would delay
court proceedings by other litigants he must make a strong
showing of necessity because the relief would severely affect
the rights of others.” Commodity Futures Trading
Comm'n v. Chilcott Portfolio Mgmt., Inc., 713 F.2d
at 1484. “The underlying principle clearly is that
‘the right to proceed in court should not be denied
except under the most extreme circumstances.'”
Commodity Futures Trading Comm'n v. Chilcott
Portfolio Mgmt., Inc., 713 F.2d at 1484 (alterations
omitted)(quoting Klein v. Adams & Peck, 436 F.2d
337, 339 (2d Cir. 1971)).
Tenth Circuit has acknowledged a district court's
discretion in issuing discovery stays. In Cole v. Ruidoso
Municipal Schools, 43 F.3d 1373 (10th Cir. 1994), the
defendants argued “that they had an absolute right to a
stay of discovery” after they filed a motion for
qualified immunity and appealed to the Tenth Circuit, because
the district court imposed conditions on the stay. 43 F.3d at
1386. The Tenth Circuit rebuffed the strict rules that the
As a general rule, discovery rulings are within the broad
discretion of the trial court. The trial court's decision
on discovery matters will not be disturbed unless the
appellate court has a definite and firm conviction that the
lower court made a clear error of judgment or exceeded the
bounds of permissible choice in the circumstances.
Cole v. Ruidoso Mun. Sch., 43 F.3d at 1386
(citations omitted and internal quotation marks omitted).
to issue a discovery stay depends greatly on each case's
facts and progress. The Court has noted that the
“[defendants in civil cases face an uphill battle in
putting the brakes on discovery.” Fabara v. GoFit
LLC, No. CIV 14-1146 JB/KK, 2015 WL 3544296, at *11
(D.N.M. May 13, 2015)(Browning, J.). Defendants particularly
struggle “where there are a relatively small number of
factual issues, the plaintiffs discovery requests are not
particularly burdensome, and the defendant has not shown how
it will suffer prejudice from them.” Fabara v.
GoFit LLC, 2015 WL 3544296, at *11. In S2 Automation
LLC v. Micron Technology, the Court granted in part and
denied in part a motion to stay discovery, to extend pretrial
deadlines, to vacate the trial setting, and to issue a
protective order. See 2012 WL 3150412, at *1. The
Court denied the motion to the extent it requested a
discovery stay, because, “[ultimately, a stay is
unnecessary.” 2012 WL 3150412, at *3. The parties had
made “significant progress on the disputed matters,
” and the Court had “issued rulings on many of
the motions that Micron Technology contended needed to be
resolved before the case proceeded.” 2012 WL 3150412,
at *3. Instead of granting the discovery stay, the Court
extended deadlines that it had previously set in the case
based on the case's increasing complexity. See
2012 WL 3150412, at *3. In Walker v. THI of New Mexico at
Hobbs Center, No. CIV 09-0060 JB/KBM, 2011 WL 2728326
(D.N.M. June 28, 2011)(Browning, J.), the Court evaluated
whether to stay deposition discovery until thirty days after
it ruled on the motions to dismiss two of the defendants,
which would determine whether those defendants would remain
in the suit and participate in discovery. See 2011
WL 2728326, at *1. The plaintiffs argued that the Court had
already extended discovery deadlines and that issuing a stay
would require rescheduling deadlines. See 2011 WL
2728326, at *1. The Court denied the motion to stay, because
it did “not see a benefit to staying discovery.”
2011 WL 2728326, at *2. The Court noted that counsel for the
two defendants who were subject to the motions to dismiss had
already indicated that they would not participate in
deposition discovery. See 2011 WL 2728326, at *2.
The Court stated: “There is thus no benefit to staying
deposition discovery, and staying deposition discovery would
further delay the case.” 2011 WL 2728326, at *2.
See Benavidez v. Sandia Nat'l Labs, No. CIV
15-0922 JB/LF, 2016 WL 6404798 (D.N.M. Sept. 27,
2016)(Browning, J.)(denying stay when “[t]here is no
reason to put the Defendants to the trouble and expense of
having to wait and file another motion -- largely regarding
the same issues that are already before the Court in the
pending Motion to Dismiss -- while the Plaintiffs get all of
their ducks in a row”).
REGARDING RULE 12(b)(1)
courts are courts of limited jurisdiction; they are empowered
to hear only those cases authorized and defined in the
Constitution which have been entrusted to them under a
jurisdictional grant by Congress.” Henry v. Office
of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.
1994)(citations omitted). A plaintiff generally bears the
burden of demonstrating the court's jurisdiction to hear
his or her claims. See Steel Co. v. Citizens for a Better
Env't 523 U.S. 83, 104 (1998)(“[T]he party
invoking federal jurisdiction bears the burden of
establishing its existence.”). Rule 12(b)(1) allows a
party to raise the defense of the court's “lack of
jurisdiction over the subject matter” by motion.
Fed.R.Civ.P. 12(b)(1). The Tenth Circuit has held that
motions to dismiss for lack of subject-matter jurisdiction
“generally take one of two forms: (1) a facial attack
on the sufficiency of the complaint's allegations as to
subject-matter jurisdiction; or (2) a challenge to the actual
facts upon which subject matter jurisdiction is based.”
Ruiz v. McDonnell 299 F .3d 1173, 1180 (10th Cir.
On a facial attack, a plaintiff is afforded safeguards
similar to those provided in opposing a rule 12(b)(6) motion:
the court must consider the complaint's allegations to be
true. See Ruiz v. McDonnell 299 F.3d at 1180;
Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.
1981). But when the attack is aimed at the jurisdictional
facts themselves, a district court may not presume the
truthfulness of those allegations. A court has wide
discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed
jurisdictional facts ...