United States District Court, D. New Mexico
ORDER GRANTING MOTION TO STAY DISCOVERY
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
MATTER is before the Court on Defendants CHW Group
Inc. and Victor Mandalawi's Motion for Protective
Order to Temporarily Stay Discovery and to Stay all
Scheduling Order Deadlines Pending Ruling on Defendants'
Motion to Dismiss (the “Motion to Stay
Discovery”), (Doc. 11), filed October 15, 2019;
Plaintiff Robert Mestas' Response to Motion to
Temporarily Stay Discovery and Initial Order Deadlines
(the “Response”), (Doc. 17), filed October 21,
2019; and Defendants' Reply in Support of Motion for
Protective Order to Temporarily Stay Discovery and to Stay
all Scheduling Order Deadlines (the
“Reply”), (Doc. 19), filed October 23, 2019.
their Motion to Stay Discovery, Defendants request a
temporary stay of discovery pending the resolution of their
Joint Motion to Dismiss Plaintiff's Amended
Complaint (the “Motion to Dismiss”), (Doc.
10), filed October 15, 2019. (Doc. 11 at 1). In support of
their Motion to Stay Discovery, Defendants explain their
Motion to Dismiss will likely dispose of Plaintiff's
entire case. Id. at 5. Indeed, four “starkly
similar, if not virtually identical” complaints have
been filed in this District, all of which have been dismissed
for failure to state a claim, lack of personal or subject
matter jurisdiction, or lack of Article III standing. See
Id. (citing Arnold v. BPCL Management LLC.,
2017 WL 3534996 (D.N.M. Aug. 8, 2017) (unpublished) (Parker,
J.); Childress v. Liberty Mutual Insurance Co., 2018
WL 4684209 (D.N.M. Sept. 28, 2018) (unpublished) (Vazquez,
J.); Childress v. Deering, 2019 WL 409825 (D.N.M.
Jan. 29, 2019) (unpublished) (Fashing, J.); Barker v.
Sunrun Inc., 2019 WL 1983291 (D.N.M. Apr. 29, 2019)
(unpublished) (Gonzales, J.)). As a result, Defendants
contend it would be “unduly burdensome” to
proceed with discovery and “an inefficient use  of
party and judicial resources” when Plaintiff's
Amended Complaint, not unlike its four predecessor
complaints, likely fails on the merits. (Doc. 11 at 5).
Response, Plaintiff argues Defendants' Motion to Dismiss
seeks dismissal of only one Defendant and it is unlikely to
be granted because Plaintiff's Amended Complaint is
“well-pled.” (Doc. 17 at 1-2). In addition,
Plaintiff contends he will be prejudiced as a result of the
delay associated with a stay of discovery and evidence from
foreign Defendants may be spoliated if litigation fails to
timely proceed. Id. at 2. Lastly, Plaintiff argues
his current Amended Complaint is meritorious, and in an
effort to mitigate any potential harm to Defendants, he
agrees to a limited scope of discovery while the Motion to
Dismiss remains pending. Id. at 4.
to issue a stay of discovery depends greatly on the facts and
progress of each case.” Martin v. City of
Albuquerque, 219 F.Supp.3d 1081, 1090 (D.N.M. 2015). In
rendering a decision to stay proceedings, a court must
“exercise  judgment” and “weigh competing
interests.” Roybal v. United States, 2014 WL
12617288, at *1 (D.N.M. April 9, 2014) (unpublished)
(Wormuth, J.) (citing Landis v. North America Co.,
299 U.S. 248, 254-55 (1936)). In weighing competing
interests, the court may consider factors such as: “(1)
[the] plaintiff's interests in proceeding expeditiously
with the civil action and the potential prejudice to
plaintiff of a delay; (2) the burden on the defendants; (3)
the convenience to the court; (4) the interests of persons
not parties to the civil litigation; and (5) the public
interest.” Todd v. Montoya, 2011 WL 13286329,
at *6 (D.N.M. Jan. 18, 2011) (unpublished) (Browning, J.).
Ultimately, the decision to issue a stay of discovery is
within the broad discretion of the district court.
Martin, 219 F.Supp.3d at 1089.
several facts weigh in favor of granting Defendants'
Motion to Stay Discovery. Turning to the first factor,
Plaintiff has failed to demonstrate any prejudice he may
suffer if the Court stays discovery, other than his assertion
that evidence “may” be spoliated and a
“delay alone is prejudicial.” (Doc. 17 at 2).
Plaintiff's hypothetical prejudice, which he may suffer
against unidentified Defendants, is insufficient to establish
even a plausible showing of actual harm. See Burke v.
Alta Colleges, Inc., 2012 WL 502271, at *2 (D. Colo.
Feb. 15, 2012) (unpublished) (finding that
“plaintiff's conclusory assertions”
concerning “unidentified witnesses” do not rise
above a “non-speculative prejudicial impact that would
result from … [staying] discovery”).
regard to the second factor, Defendants have filed a Motion
to Dismiss that would dismiss “Plaintiff's entire
Amended Complaint with prejudice.” (Doc. 10 at
37) (emphasis in original). As a result, if Defendant's
Motion to Dismiss is granted, it would obviate the need for
any discovery. See Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982) (explaining that a stay of discovery is
generally disfavored unless the case will likely be concluded
as a result of the court's ruling on the pending
dispositive motion). This is a particularly compelling factor
here, where four other lawsuits have been filed involving
Plaintiff's attorney with nearly identical allegations
and each lawsuit was dismissed in the early stages of
the third factor, the Court finds the interests in efficient
management of litigation and the conservation of judicial
resources support a stay of discovery in this matter. In
reaching this conclusion, the Court has considered the four
previous lawsuits Plaintiff's attorney has been involved
in, each of which had discovery either completely halted upon
the filing of the defendants' motion to dismiss or had
discovery narrowly tailored pending dismissal of the case.
See Arnold v. BPCL Management LLC., 17-CV-685
JAP/KK, Doc. 23 at *2 (denying plaintiff's motion for
subpoena for discovery, explaining “the court will not
authorize plaintiff's fishing expedition”);
Childress v. Liberty Mutual Insurance Co.,
17-CV-1051 MV/KBM, Doc. 12 (sua sponte finding good
cause pursuant to Fed.R.Civ.P. 16(b)(2) to delay entering a
scheduling order until resolution of the pending motion to
dismiss); Childress v. Deering, 18-CV-455 LF/KBM,
Doc. 7 (sua sponte finding good cause pursuant to
Fed.R.Civ.P. 16(b)(2) to delay entering a scheduling order
until resolution of the pending motion to dismiss);
Barker v. Sunrun Inc., 18-CV-855 KG/LF, Doc. 11
(sua sponte vacating the initial scheduling order
upon receipt of defendants' motion to dismiss).
with regard to the fourth and fifth factors, the Court finds
the public and the unnamed Defendants have a general interest
in an efficient and just resolution of this case. However,
the Court's timely resolution of Defendants' Motion
to Dismiss will adequately serve this interest. Accordingly,
having weighed the relevant factors, the Court will not
permit discovery, even in a limited capacity, to proceed in
IS THEREFORE ORDERED that Defendants' Motion
for Protective Order to Temporarily Stay Discovery and to
Stay all Scheduling Order Deadlines Pending Ruling on
Defendants' Motion to Dismiss, (Doc. 11), is hereby
GRANTED and discovery in this matter is
stayed pending resolution of the Defendants' Motion to
Dismiss, (Doc. 10). The Court will vacate the Initial
Scheduling Order, (Doc. 7), including the Telephonic
Rule 16 Scheduling Conference set for November 13, 2019, by