Solida v. U.S. Dep't of Fish & Wildlife

• Decision Date: 14 January 2013
• Docket Number: 2:12-cv-01488-RCJ-VCF
• Parties: MINISTERIO ROCA SOLIDA, Plaintiff, v. UNITED STATES DEPARTMENT OF FISH AND WILDLIFE, et al., Defendants.
• Court: U.S. District Court — District of Nevada

MINISTERIO ROCA SOLIDA, Plaintiff,

v.UNITED STATES DEPARTMENT OF FISH AND WILDLIFE, et al., Defendants.

2:12-cv-01488-RCJ-VCF

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Dated: January 14, 2013

ORDER

(Motion To Stay Discovery #9)

Before the court is defendants United States Department of Fish and Wildlife and Sharon McKelvey's, in her official capacity (hereinafter "Federal Defendants"), Motion to Stay Discovery. (#9). Plaintiff filed an Opposition (#13), and the Federal Defendants filed a Reply (#18).

Background

Plaintiff Ministerio Roca Solida (hereinafter "Solid Rock Ministry" or "Ministry") filed its complaint against United States Fish and Wildlife Service and Sharon McKelvey, the Ash Meadows Wildlife Refuge Manager, in both her official and individual capacities, on August 22, 2012, asserting claims for (1) violation of property rights, (2) violation of free exercise rights, (3) negligence, and (4) unconstitutional "taking" of plaintiff's property. (#1). Plaintiff alleges that it purchased forty (40) acres of land in Nye County, Nevada, for its church camp ministry, and that, while private land, the forty (40) acre parcel is located within the boundaries of the Ash Meadows National Wildlife Refuge. Id. Plaintiff alleges that "[i]ncluded with the forty acre parcel purchase are water rights to a desert stream which has flowed through and across the property in question since before the year 1881." Id. Plaintiff asserts thatthe stream was used as a baptismal stream and to water animals, "contributed significantly to an atmosphere suitable for religious meditation, and fed a recreational pond utilized by attendees of Solid Rock Ministry's church camp." Id.

Plaintiff alleges that defendants engaged in a "water diversion project that prevented Solid Rock Ministry's water from entering its property and, instead, diverted said water completely around the borders of the [p]laintiff's forty acre parcel." Id. Plaintiff also alleges that "the water diversion project was conducted negligently such that on December 23, 2010, the first day of any measurable, post-diversion rainfall, the newly diverted water overflowed the USF&W-artificially-created channels and flooded portions of the forty acre parcel as it made its way back to its historical path," resulting in at least $86,639.00 to the land, structures, and animals on church camp grounds. Id. Plaintiff states that in accordance with the Federal Tort Claims Act (hereinafter "FTCA") it "filed a "SF 95 claim" via certified mail with the Solicitor of the U.S. Fish and Wildlife Service/Department of the Interior for the damages resulting from the negligent means by which the water diversion project was executed by [d]efendants." Id.

On November 20, 2012, the Federal Defendants filed a motions to dismiss (#7) and defendant McKelvey, in her individual capacity, filed a motion to dismiss (#8). On November 28, 2012, the Federal Defendants filed the instant motion to stay discovery. (#9). On December 7, 2012, plaintiff filed an amended complaint (#12) adding the United States as a defendant, asserting claims for (1) violation of property rights and liberty interests, (2) violation of free exercise rights, (3) negligence, and (4) unconstitutional "taking" of plaintiff's property, and seeking declaratory, injunctive, and monetary relief. (#12). Plaintiff filed an opposition to the motion to stay on December 12, 2012. (#13). On December 24, 2012, defendants filed two separate motions to dismiss the amended complaint. (#16 and #17). On the same day, the Federal Defendants filed their reply in support of the motion to stay. (#18).

Motion To Stay

A. Argument

Federal Defendants ask this court to stay discovery in this matter pending the court's ruling on defendants' motions to dismiss (#7, #8, #16 and #17), as the motions to dismiss are based on (1) lack of subject matter jurisdiction, (2) failure to state a claim, (3) qualified immunity, and (4) no waiver of sovereign immunity. (#9). Federal Defendants assert that "until these threshold issues are decided, discovery should not commence." Id. Plaintiff argues against the stay, and asserts that the court "has jurisdiction over the "UNITED STATES for the Takings and FTCA claims, jurisdiction over U.S. FISH AND WILDLIFE SERVICE and Sharon MCKELVEY in her official capacity with respect to the declaratory and injunctive relief sought, and jurisdiction over Sharon MCKELVEY in her individual capacity for her clear legal and constitutional violations even despite Defendants' errant characterization of "supervisory liability" as a thing of the past. (#13). Plaintiff also asserts that the original complaint (#1) provided the defendants with adequate notice of the claims against them, and that the amended complaint (#12) provides even more specificity. Id.

Federal Defendants assert in their reply that in their recent motions to dismiss (#16 and #17) the amended complaint (#12) they argue "threshold issues: lack of waiver of sovereign immunity, lack of subject matter jurisdiction, and qualified immunity for McKelvey," which plaintiff "essentially ignores." (#18). Federal Defendants argue that plaintiff did not address the authorities showing that qualified immunity should be decided before discovery, and "merely argues that a Rule 12(b)(6) motion is not automatic grounds for a stay." Id.

B. Relevant Law

The Federal Rules of Civil Procedure do not provide for automatic or blanket stays of discovery when a potentially dispositive motion is pending. Skellercup Indus. Ltd. v. City of L.A., 163 F.R.D. 598, 600-01 (C.D. Cal 1995) (stating that if the Federal Rules contemplated a motion to dismiss under Rule12(b)(6) would stay discovery, the Rules would contain such a provision, and finding that a stay of discovery is directly at odds with the need for expeditious resolution of litigation).

Two published decisions in this district have held that ordinarily, a dispositive motion does not warrant a stay of discovery. Twin City Fire Insurance v. Employers of Wasau, 124 F.R.D 652, 653 (D. Nev. 1989); Turner Broadcasting System, Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997). Both of these decisions held that to establish good cause for a stay, the moving party must show more than an apparently meritorious Rule 12(b)(6) motion. Id. Citing the Ninth Circuit's decision in Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981) (per curiam), both of these decisions held that a district court may stay discovery only when it is convinced that the Plaintiff will be unable to state a claim for relief (emphasis added). Common situations in which a court may determine that staying discovery pending a ruling on a dispositive motion occur when dispositive motions raise issues of jurisdiction, venue, or immunity. Id.

On the other hand, the Ninth Circuit has held that under certain circumstances, a district court abuses its discretion if it prevents a party from conducting discovery relevant to a potentially dispositive motion. See Alaska Cargo Transport, Inc. v. Alaska R.R., Corp., 5 F.3d. 378, 383 (9th Cir. 1993) (stating the district court would have abused its discretion in staying discovery if the discovery was relevant to whether or not the court had subject matter jurisdiction); Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (holding district court did not abuse its discretion in denying discovery when the complaint did not raise factual issues requiring discovery to resolve); Kamm v. Cal City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975) (holding the propriety of a class action cannot be determined in some cases without discovery, and to deny discovery in such cases is an abuse of discretion); Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977) (stating that the better and more advisable practice is for the district court to allow litigants an opportunity to present evidence concerning whether a class action is maintainable, and such an opportunity requires "enough discovery to obtain the material").

The purpose of Federal Rule of Civil Procedure 12(b)(6) is to enable defendants to challenge the legal sufficiency of a complaint without subjecting themselves to discovery. Rutman Wine Co. v. E & J Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987). The Ninth Circuit has held that discovery at the pleading stage is only appropriate where factual issues are raised by a Rule 12(b) motion, and a pending Rule 12(b) motion to dismiss is sufficient cause for granting a protective order. Wagh v. Metris Direct, Inc., 363 F.3d 821, 829 (9th Cir. 2003), overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d 541, 551 (9th Cir. 2007) (en banc).

Under Federal Rule of Civil Procedure 26©, the court may limit the scope of disclosures or discovery on certain matters and prevent certain matters from being inquired into upon a showing of good cause or where "justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Id. The district court has wide discretion in controlling discovery, and its rulings will not be overturned in the absence of a clear abuse of discretion. Little v. City of Seattle, 863 F.2d, 681, 685 (9th Cir. 1988). Staying discovery when a court is convinced that the plaintiff will be unable to state a claim for relief furthers the goal of efficiency for the court and the litigants. Id.

It is well-established that a party seeking a stay of discovery carries the heavy burden of making a strong showing why discovery should be denied. Turner, 175 F.R.D. at 556 (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)). A showing that discovery may involve some inconvenience and expense does not suffice to establish good cause for issuance of a protective order. Id.; Twin City, 124 F.R.D. at 653. Rather, a party seeking a protective order must show a particular and specific need for the protective order, and broad or conclusory statements concerning the need for...