United States District Court, D. Kansas
JAMES W. CLARK, et al., Plaintiffs,
SCOTT SCHWAB, in his official capacity as the Secretary of State of Kansas, et al., Defendants.
MEMORANDUM AND ORDER
D. Mitchell, U.S. Magistrate Judge
matter comes before the court on defendant Scott Schwabâs
Motion to Stay Discovery and Entry of Case Management
Discovery Orders (ECF No. 27). For the reasons discussed
below, the court grants the motion and stays discovery in
this case pending the district judgeâs ruling on Mr. Schwabâs
motion to dismiss.
13, 2019, plaintiffs filed a complaint against Mr. Schwab, in
his official capacity as Kansas Secretary of State, and
Ronnie Metsker, in his official capacity as Johnson County
Election Commissioner. Plaintiffs’ complaint alleges
that a Kansas statute that bans certain electioneering
activity within a 250-foot radius of a polling location, Kan.
Stat. Ann. § 25-2430, is unconstitutional. They also
allege that Mr. Schwab maintains an unconstitutional policy
pursuant to Kan. Stat. Ann. § 25-2810 that grants local
election officials unfettered discretion to exclude
individuals engaging in any activity, including
non-electioneering speech protected by the First Amendment,
from the vicinity of polling locations.
13, plaintiffs filed a motion for preliminary injunction
asking the court to enjoin Mr. Schwab from enforcing Kan. Stat.
Ann. §§ 25-2430 and 25-2810 against individuals
engaging in certain conduct, as well as to enjoin him from
maintaining the alleged policy. (ECF No. 4.)
25, Mr. Schwab filed a motion to dismiss plaintiffs’
claims against him for lack of jurisdiction. (ECF No. 13.) He
argues that he is entitled to Eleventh Amendment sovereign
immunity and that plaintiffs lack standing with respect to
their claims against him. Plaintiffs’ response does not
suggest that they require any discovery to respond to Mr.
Schwab’s sovereign immunity claim.
September 11, plaintiffs filed a motion asking the court to
issue a decision on their motion for preliminary injunction
prior to October 14, 2019. (ECF No. 25.) Plaintiffs indicated
that they “believe an evidentiary hearing is
unnecessary . . . because the parties’ briefing on the
motion for preliminary injunction presents exclusively issues
of law based on undisputed material facts.”
(Id. at 1, ¶ 3.) Mr. Schwab responded, stating
that he does not object to plaintiffs’ request, but he
noted that the court would necessarily be required to decide
his “pending motion to dismiss with or before [a]
decision on the plaintiffs’ motion.” (ECF No. 26,
at 1, ¶ 1.)
Schwab now asks the court to stay discovery and entry of case
management discovery orders pending the district
judge’s ruling on his motion to dismiss. (See
ECF No. 27.) He argues that a stay is appropriate because he
has raised the issue of sovereign immunity. Plaintiffs
oppose, arguing that Mr. Schwab has not met his burden to
justify a stay, his sovereign immunity claim is likely to
fail, and discovery “would directly assist in resolving
whether Defendant Schwab is immune from suit.” (ECF No.
30, at 2.) Mr. Metsker does not oppose Mr. Schwab’s
District’s longstanding policy is not to stay discovery
simply because a dispositive motion is pending. See Wolf
v. United States, 157 F.R.D. 494, 495 (D. Kan. 1994). A
stay may be appropriate, however, if “(1) the case is
likely to be finally concluded via the dispositive motion;
(2) the facts sought through discovery would not affect the
resolution of the dispositive motion; (3) discovery on all
issues posed by the complaint would be wasteful and
burdensome; or (4) the dispositive motion raises issues as to
a defendant’s immunity from suit.” Arnold v.
City of Olathe, Kan., No. 18-cv-2703-CM-JPO, 2019 WL
2438677, at *2 (D. Kan. Mar. 8, 2019). Whether to grant a
stay of discovery is committed to the trial court’s
sound discretion. See Id. (citing Clinton v.
Jones, 520 U.S. 681, 706 (1997)).
Mr. Schwab’s motion to dismiss raises the issue of
sovereign immunity. Immunity from suit is a “broad
protection” that grants government officials “a
right, not merely to avoid ‘standing trial,’ but
also to avoid the burdens of ‘such pretrial matters as
discovery.’” Medina v. Cram, 252 F.3d
1124, 1127 (10th Cir. 2001) (quoting Behrens v.
Pelletier, 516 U.S. 299, 308 (1996)) (discussing
qualified immunity). A defendant is therefore generally
entitled to have questions of immunity resolved before being
required to engage in discovery. Arnold, 2019 WL
2438677, at *2. Otherwise, a defendant entitled to immunity
would be effectively deprived of its benefit. See Siegert
v. Gilley, 500 U.S. 226, 232 (1991) (treating immunity
as a threshold issue allows a court “to weed out suits
. . . without requiring a defendant who rightly claims
qualified immunity to engage in expensive and time consuming
preparation to defend the suit on its merits”).
court finds that a stay of discovery is appropriate in this
case. Mr. Schwab’s motion to dismiss contends that he
is entitled to sovereign immunity, and therefore the prudent
course of action is to allow the district judge an
opportunity to resolve this threshold issue before requiring
Mr. Schwab to participate in discovery. Although plaintiffs
now argue that discovery would assist in this analysis, they
did not believe discovery was necessary to respond to Mr.
Schwab’s motion to dismiss and they are not currently
seeking any discovery on the sovereign immunity issue.
Further, plaintiffs contend that their motion for preliminary
injunction can be resolved on the existing record. That
motion is inextricably entwined with the motion to dismiss,
and both motions can be decided on the existing record.
See Arnold, 2019 WL 2438677, at *3 (noting that
discovery is not necessary to counter an immunity claim at
the motion to dismiss stage because a plaintiff can rely on
facts alleged in the pleadings).
Schwab argues the stay should also encompass Mr. Metsker.
Although Mr. Metsker has not asserted an immunity claim, a
partial stay as to only Mr. Schwab would result in piecemeal
discovery and ultimately be inefficient. The court therefore
stays discovery as to all parties pending the district
judge’s ruling on Mr. Schwab’s motion to dismiss.
IS THEREFORE ORDERED that defendant Scott
Schwab’s Motion to Stay Discovery and Entry of Case
Management Discovery Orders (ECF No. 27) is granted.
Discovery and scheduling-related pretrial proceedings are
stayed as to all parties pending ...