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C De Baca v. United States

United States District Court, D. New Mexico

April 30, 2019

CATHERINE C DE BACA, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendants. GERALD OHLSEN; JANET YOUNGBERG; JAMES FARRINGTON; TONY and CARYN DEROCHIE; WILLIAM and DONNA MCCLELLAN; NANCY HIGGINS; VERNON and BINDA COBB; CHRISTINE WOOD; MARK THOMPSON; DONALD GILES and BONNIE LONG; THOMAS and DIANE BRAGG; ERNEST and FRIEDA VIGIL; BRAD WOSICK; JOHNNY and DEANNE LUNA; MARLENE BARBER; MICHAEL MCDANIEL and PAULA WILTGEN, and MARTIN VALENCIA, Plaintiffs,
v.
UNITED STATES, and DOES 1-10, Defendants. STATE FARM FIRE & CASUALTY CO., and SAFECO INSURANCE COMPANY OF AMERICA, Plaintiffs,
v.
UNITED STATES, and DOES 1-10, Defendants. DAVID LLOYD SAIS; LUCILLE SAIS; TOMAS APODACA, and CHRISTINE APODACA, Plaintiffs,
v.
UNITED STATES OF AMERICA, and DOES 1-10, Defendants. HOMESITE INDEMNITY COMPANY a/s/o DON GILES and BONNIE LONG, Plaintiff,
v.
UNITED STATES; UNITED STATES DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE; NATURAL RESOURCES CONSERVATION SERVICE, and BUREAU OF INDIAN AFFAIRS, Defendants.

          A. Blair Dunn, Dori Ellen Richards, Western Agriculture Resource and Business Advocates, LLP, Attorneys for the Plaintiffs Catherine C De Baca and Gary Cianchetti

          Mary 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.

          Mark 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.

          David Lloyd Sais Plaintiff pro se

          Lucille Sais Plaintiff pro se

          Thomas 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

         THIS 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.

         FACTUAL BACKGROUND

         The 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.

         In 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.

         The 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.

         The 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.

         PROCEDURAL BACKGROUND

         At a 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 18.

         1. The Motion.

         The 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.

         2. The Response.

         On 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.

         Second, 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 at 5.

         Third, 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.

         Fourth, 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[3] “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.

         Fifth, 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 11.

         3. The Hearing.

         At the 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.”).[4] 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).

         The 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).

         The 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).

         The 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).

         The 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).

         LAW REGARDING STAYS

         A 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.

         The 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)).

         The 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 defendants suggested:

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).

         Whether 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”).

         LAW REGARDING RULE 12(b)(1)

         “Federal 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. 2002).

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 ...

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