United States District Court, D. Kansas
P. O'Hara U.S. Magistrate Judge.
a former salesman for defendant PrimeRevenue, Inc., filed
this action claiming defendants owe him commissions and the
value of stock options. Currently before the undersigned U.S.
Magistrate Judge, James P. O'Hara, is the motion of
defendants to stay discovery pending the court's ruling
on their motion to partially dismiss plaintiff's amended
complaint (ECF No. 30). Because the court finds no reason to
stray from the general rule that discovery is not stayed
simply because a dispositive motion has been filed, the
motion to stay is denied.
filed this case in Kansas state court alleging breach of
contract and violation of the Kansas Wage Payment Act (Count
I), breach of the covenant of good faith and fair dealing
(Count II), quantum meruit (Count III), and tortious
interference with a business expectancy (Count IV).
Defendants removed the case to this court and shortly
thereafter moved to dismiss Counts II-IV for failure to state
claims upon which relief can be granted.Defendants now
seek to stay discovery pending a ruling on the motion to
decision whether to stay discovery rests in the sound
discretion of the court. The Tenth Circuit has stated, however,
that “‘the right to proceeding in court should
not be denied except under the most extreme
circumstances.'” Thus, as a general rule, discovery is
not stayed in this district based merely on the pendency of
dispositive motions. The court has recognized that there may be
exceptions to this rule, such as where: (1) the case is
likely to be finally concluded via a dispositive motion; (2)
the facts sought through discovery would not affect the
resolution of the dispositive motion; or (3) discovery on all
issues posed by the complaint would be wasteful and
court does not find this to be one of the rare instances in
which staying discovery is justified. The first exception
does not apply here because there is no dispute that the
motion to dismiss does not challenge Count I, so the case
will not be concluded via the motion. Moreover, the
undersigned has reviewed the motion and the briefs that
accompany it, and cannot say that Counts II-IV are
likely to be concluded via the motion. The
undersigned certainly does not presume to predict how the
presiding U.S. District Judge, J. Thomas Marten, will view or
rule the motion-indeed, he may grant the motion-but
this is not a case in which the likely outcome of the motion
the undersigned is not clearly convinced that facts learned
in discovery would not affect the resolution of the motion to
dismiss. This question is a close one. Although defendants
state their motion to dismiss should be granted based on
Kansas's at-will employment doctrine, plaintiff argues
the doctrine has no application in this case. The
determination of certain factual questions might possibly
affect Judge Marten's resolution of this question. On the
other hand, additional discovery may not be necessary to
develop the factual record for a ruling on the motion to
dismiss. Given the general rule disfavoring the stay of
discovery, “out of an abundance of caution, and in its
discretion, the court will not stay discovery in the present
case simply because the pending motion to dismiss may not
need further discovery.”
the undersigned does not find that moving forward with
discovery will be wasteful and burdensome. As noted above,
Count I will remain in this case regardless of the outcome of
the dispositive motion. Given the similar elements of
plaintiff's claims and the underlying facts that are
relevant to multiple claims (i.e., relevant beyond Count I),
discovery affecting multiple claims is not unnecessarily
burdensome. During the July 10, 2017 scheduling conference,
the court and parties discussed the effect that the pending
dispositive motion should have on the scope of discovery. In
the scheduling order issued thereafter, the court stated,
“the parties have agreed to focus their discovery
efforts in the short term on the claims in Count I; however,
mindful of the factual overlap, there is no
bright-line stay of discovery on Counts II, III, and
IV.” That ruling still applies.
no clear exception applies that would warrant it, the
undersigned declines to stay discovery pending resolution of
the dispositive motion.
THEREFORE ORDERED that defendants' motion to stay
discovery is denied.
ECF No. 17.
Bank of Blue Valley v. Lasker Kim
& Co., No. 15-9303-CM, 2016 WL 6604065, at *1 (D.
Kan. March 29, 2016) (citing Kutilek v. Gannon, 132
F.R.D. 296, 297-98 (D. Kan. 1990) and Tennant v.
Miller, No. 13-2143, 2013 WL 4848836, at *1 (D. Kan.
Sept. 11, 2013)).
Cargill Meat Sols. Corp. v. Premium
Beef Feeders, LLC, No. 13-1168, 2015 WL 3937395, at *1
(D. Kan. June 26, 2015) (quoting Commodity Futures
Trading Comm'n v. Chilcott Portfolio Mgmt., Inc.,