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Case 3:17-cv-02692-S Document 19 Filed 02/16/18 Page 1 of 10 PageID 279

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

BRUCE JOINER,

Plaintiff,
v.
Case No. 3:17-cv-02692
UNITED STATES OF AMERICA,

Defendant.

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR


RELIEF FROM ORDER REQUIRING A SCHEDULING CONFERENCE AND
REPORT AND FOR A STAY OF DISCOVERY

Plaintiff files this Response in Opposition to Defendant’s Motion for Relief from Order

Requiring a Scheduling Conference and Report and for a Stay of Discovery (Defendant’s

“Motion to Stay”). Defendant filed a Motion to Dismiss on January 11, 2018 (“Motion to

Dismiss”), arguing in part that this Court lacks subject matter jurisdiction because Defendant is

immune from suit under the discretionary function exception to the Federal Tort Claims Act

(“FTCA”). Dkt. No. 9 at 9-21. Defendant also alleges it is immune from claims under the Anti-

Terrorism Act. Dkt. No. 9 at 24-25. Because Defendant’s Motion to Dismiss is grounded in part

on this threshold issue, Defendant has moved for relief from its obligations to comply with this

Court’s Order from January 16, 2018 (“Pre-Scheduling Order”)—which requires a Scheduling

Conference and Joint Report—and has further moved for a stay of all discovery pending

resolution of the Motion to Dismiss. Dkt. No. 14 at 8. This Court should deny Defendant’s

Motion to Stay because Defendant has failed to demonstrate good cause. Moreover, rather than

staying discovery entirely, Defendant should simply object to, or invoke privilege for, specific

discovery requests as they are received, as applicable.

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ARGUMENT

I. Defendant has failed to show “good cause” sufficient to stay discovery and delay
compliance with this Court’s Pre-Scheduling Order.

Rule 16(b) of the Federal Rules of Civil Procedure authorizes federal courts to control

and expedite the discovery process through a scheduling order. The provisions of Rule 16 are

intended to promote efficiency and, in particular, expedite pretrial procedure. S&W Enterp.,

L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533, 535 (5th Cir. 2003). A party moving

for a stay of discovery “bears a heavy burden to show why a stay should be granted.” Coastal

(Bermuda) Ltd. v. E.W. Saybolt & Co. Inc., 761 F.2d 198, 204 n.6 (5th Cir. 1985) ("[w]here a

discretionary stay is proposed, something close to genuine necessity should be the mother of its

invocation"). A stay of scheduling and discovery is the exception rather than the rule—and

should only be permitted for “good cause” demonstrating that the moving party would

suffer annoyance, embarrassment, oppression, or undue burden or expense without a stay.

See, e.g., Bickford v. Boerne Indpt. Sch. Dist., No. 5:15-CV-1146-DAE, ¶ 3 (W.D. Tex. April 8,

2016); Escareno ex rel. A.E. v. Lundbeck, LLC, No. 3:14-cv-257-B, ¶ 6 (N.D. Tex. May 15,

2014); Glazer’s Wholesale Drug Co. v. Klein Foods, Inc., No. 3:08-cv-0774-L, 2008 U.S. Dist.

LEXIS 56564, at *2 (N.D. Tex. July 23, 2008); see also Fed. R. Civ. P. 16(b)(4); Fed. R. Civ. P.

26(c)(1). In this case, Defendant has failed to satisfy its heavy burden and demonstrate good

cause.

Courts have repeatedly rejected the argument that discovery should be stayed merely

because a motion to dismiss is pending. See, e.g., Glazer’s Wholesale Drug Co., 2008 U.S. Dist.

LEXIS 56564, at *2 (“The court declines to stay discovery merely because defendant believes it

will prevail on its motion to dismiss.”); TSM Assoc., LLC v. Tractor Supply Co., No. 08–CV–

230–JHP–FHM, 2008 WL 2404818, at *1 (N.D. Okla. June 11, 2008) (“Unless some compelling

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reason is presented, in the usual case discovery is not stayed as Defendant requests.”). In

Glazer’s Wholesale Drug Co., the court held that because it could not, at that time, determine

with certainty whether the defendant’s motion to dismiss would succeed, a stay was not

appropriate. Glazer’s Wholesale Drug Co., 2008 U.S. Dist. LEXIS 56564, at *4. Although the

same court in Von Drake v. Nat'l Broad. Co., Inc. had granted a stay of discovery while a motion

to dismiss was pending, the court did so only because a cursory review of the motion’s merits

were “clear cut” against the plaintiff, and the plaintiff’s discovery requests were “overly broad

and harassing.” Glazer’s Wholesale Drug Co., 2008 U.S. Dist. LEXIS 56564, at *4; Von Drake,

No. 3-04-CV-0652R at ¶ 3. But where there is no certainty as to who will prevail on the motion

to dismiss, and no good cause is shown, a stay of discovery while the motion is pending is not

appropriate. See id.

Furthermore, concerns for efficiency—such as conserving resources and avoiding

potentially unnecessary discovery—do not satisfy the “good cause” necessary to stay discovery

or scheduling. See Escareno ex rel. A.E. v. Lundbeck LLC, No. 3:14-cv-257-B, ¶¶ 4, 7 (N.D.

Tex. May 15, 2014); see also United States ex rel. Gonzalez v. Fresenius Medical Care North

Am., 571 F.Supp.2d 766, 768 (W.D. Tex. Aug. 14, 2008) (declining to grant a stay while a

motion to dismiss was pending, despite defendant’s arguments that a ruling could terminate the

action or narrow the scope of discovery). In Escareno, the court declined to stay discovery (or

delay a Rule 26 conference) until resolution of a motion to dismiss—despite defendants’

arguments that the court’s ruling would address threshold issues whereby a stay would

streamline the parties’ discovery plan, conserve resources, and avoid potentially needless

discovery. No. 3:14-cv-257-B at ¶¶ 4, 7. While the court acknowledged these interests, they did

not constitute “good cause” sufficient to stay discovery. Id. at ¶¶ 6-7. Instead, the court held that

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in order to impose a stay, defendants must establish that they will suffer “annoyance,

embarrassment, oppression, or undue burden or expense” to satisfy the requirements of good

cause. Id.; see also, e.g., Bickford v. Boerne Indpt. Sch. Dist., No. 5:15-CV-1146-DAE, ¶ 3

(W.D. Tex. April 8, 2016); Fed. R. Civ. P. 26(c)(1) (“The court may, for good cause, issue an

order [staying discovery] to protect a party or person from annoyance, embarrassment,

oppression, or undue burden or expense.”).

Like the defendants in Escareno, Defendant here argues for a stay of discovery and relief

from complying with the Pre-Scheduling Order because it “would be the most efficient use of the

parties’ and the Court’s resources” and might avoid potentially unnecessary discovery. Dkt. No.

14 at 4. But as Escareno notes, such concerns do not constitute good cause. Indeed, a defendant

could always make the argument that a stay of discovery while awaiting a decision on a motion

to dismiss could preserve party or court resources, or avoid potentially needless discovery. If

these interests were sufficient to justify a stay of discovery, then the Federal Rules would

expressly authorize automatic stays anytime a motion to dismiss is pending—but they do not.

See Glazer’s Wholesale Drug Co. v. Klein Foods, Inc., No. 3:08-cv-774-L, 2008 U.S. Dist.

LEXIS 56564, at *2 (N.D. Tex. July 23, 2008) (“Had the Federal Rules contemplated that a

motion to dismiss . . . would stay discovery, the Rules would contain a provision to that effect.”).

Moreover, Defendant has failed to show that it would suffer undue annoyance,

embarrassment, oppression, or undue burden or expense if it is required to comply with the Pre-

Scheduling Order or proceed with discovery as usual. See United States ex rel. Gonzalez v.

Fresenius Medical Care North Am., 571 F.Supp.2d 766, 768 (W.D. Tex. Aug. 14, 2008)

(declining to grant a stay while a motion to dismiss was pending where the moving parties failed

to show discovery would be oppressive, unduly burdensome, or expensive). Vague, unsupported

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assertions by Defendant that proceeding with discovery would be “especially difficult” before

the Motion to Dismiss is decided should not form the basis of a stay. Dkt. No. 14 at 4; see

Areizaga v. ADW Corp., No. 3:14-cv-2899-B (N.D. Tex. June 28, 2016) (conclusory statements

that a moving party would suffer annoyance, embarrassment, oppression, or undue burden or

expense without a stay does not satisfy good cause, which instead requires “a particular and

specific demonstration of fact”). There is nothing particularly difficult about proceeding with a

Scheduling Conference, Scheduling Order, or discovery where, as here, there is no automatic

stay of discovery. This is especially true in light of Defendant’s virtually unlimited resources (as

compared to Plaintiff’s and his counsel’s limited resources). Because of its virtually unlimited

resources, Defendant should have to meet a high bar to show that proceeding with discovery

would create oppression, undue burden or expense. And as the Escareno court noted, if a motion

to dismiss is still pending, parties to a scheduling conference can agree to a plan that stages

discovery to allow for the possibility that the ruling on the motion to dismiss will impact claims,

defenses, and the scope of discovery. Escareno ex rel. A.E. v. Lundbeck, LLC, No. 3:14-cv-257-

B, ¶ 11 (N.D. Tex. May 15, 2014).

Given that no Scheduling Conference has even been held, and no discovery requests have

even been sent, Defendant’s Motion to Stay is premature—as it cannot yet determine whether it

will suffer “annoyance, embarrassment, oppression, or undue burden or expense” by proceeding

as usual. If Defendant receives specific discovery requests that are oppressive or pose an undue

burden to respond to—then Defendant can object to those particular requests. Defendant is also

free to invoke privilege when any information requested by Plaintiff is subject to privilege. But

insisting on a blanket stay of all discovery—when no good cause has been definitively

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demonstrated—goes too far. Defendant has not met its “heavy burden” and demonstrated good

cause to sidestep the general rule in favor of discovery.

Even if the Court were to find some merit in Defendant’s Motion to Dismiss, Plaintiff

would likely be allowed an opportunity to amend its pleadings to cure any defects. See, e.g.,

Stanissis v. Dyncorp Int'l LLC, 2014 U.S. Dist. LEXIS 174296, at *3 (N.D. Tex. Dec. 17, 2014)

(court denied motion to stay discovery pending resolution of a motion to dismiss because, even if

the court grants the motion, it would permit plaintiffs to replead); Shah v. Univ. of Tex. Sw. Med.

Sch., F.Supp.3d, 2014 WL 5326658, at *20 (N.D. Tex. Oct. 20, 2014) (“Because the court's

usual practice when granting a motion to dismiss is to permit a plaintiff at least one opportunity

to replead, the court will give [the plaintiff] an opportunity to amend his complaint.”). And Rule

11(b)(3) allows a plaintiff to support its pleadings “based on evidence reasonably anticipated

after further investigation or discovery.” See Rotella v. Wood, 528 U.S. 549, 560 (2000)

(emphasis added). In short, the best approach here is to proceed with discovery and scheduling as

usual, and allow Defendant to object to, or invoke privilege for, specific discovery requests as

they are received—not to impose a blanket stay on all discovery.

II. Merely raising the defense of sovereign immunity under the discretionary function
exception should not stay discovery or scheduling while the Motion to Dismiss is pending.

Defendant argues that its Motion for Stay is especially proper because its Motion to

Dismiss raises lack of subject matter jurisdiction under the discretionary function exception to

the FTCA. Dkt. No. 14 at 4, 5-6. But merely raising the discretionary function exception as a

defense does not (and should not) entitle Defendant to avoid discovery. Defendant cites Freeman

v. United States, 556 F.3d 326 (5th Cir. 2009) to support its claim that “when, as here, the United

States seeks to dismiss the action based on the discretionary function exception, the Fifth Circuit

has made clear that discovery should not proceed.” Dkt. No. 14 at 6 (emphasis added).

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Unfortunately, Defendant overstates the holding in Freeman. The Fifth Circuit held in Freeman

that the district court did not abuse its discretion in staying discovery where (unlike in this case)

it had already granted the defendants’ motion to dismiss, and thus had already found no subject

matter jurisdiction existed. Freeman, 556 F.3d at 333, 343. Freeman did not hold that where the

United States merely raises the argument of sovereign immunity in a motion to dismiss, it is

entitled to dodge discovery. Instead, the Fifth Circuit found that plaintiffs were not entitled to

conduct pre-dismissal discovery after a motion to dismiss had been granted—at least not without

a tailored request that could cure the jurisdictional deficiency.1 Id. at 343. And this holding

makes sense: If a court has already determined that a plaintiff’s claims are barred by sovereign

immunity, then plaintiffs should not be permitted to thereafter conduct wide-ranging discovery

on their barred claims. But it does not follow that discovery should be entirely stayed simply

because the Defendant raises that particular defense—as this Court doesn’t yet know whether

that defense even applies here. In any event, Freeman is off-point because this Court has not

decided the Motion to Dismiss.2

Defendant makes the same mistake in citing Sanders v. Agnew, as this case similarly

involved a court that had already entered a recommendation to grant the motion to dismiss.3 Dkt.

No. 14 at 4. In Sanders, the Fifth Circuit’s finding that there was no abuse of discretion in

1
The purpose of pre-dismissal discovery is to find factual support for a plaintiff’s argument that the conduct at issue
is not discretionary, and thus not covered by the discretionary function exception. See Freeman, 556 F.3d at 341-42.
Because the Plaintiff did not have a discrete discovery request aimed at curing the jurisdictional deficiency, the
requested discovery was not permitted. Id. at 343.
2
Notably, Freeman dealt with the discretionary function exception under the Stafford Act—not the FTCA. Id. at
343. While the two exceptions are similar, they are not identical. Freeman, 556 F.3d at 336, n.10. So Defendant’s
statement that Congress intended the discretionary function exception to shield the United States from “intrusive
discovery” technically relates to the Stafford Act—not the FTCA.
3
Defendant also cites Ybarra v. Lubbock Police Dept. #1 Officer, 2017 WL 78509 (N.D. Tex. Jan. 6, 2017) wherein
the court rejected the magistrate judge’s recommendation to issue a scheduling order while a motion to dismiss
asserting immunity was pending. But in that case, the court failed to conduct any substantive analysis to support that
decision, and failed to conduct a “good cause” analysis or cite any case law specifically supporting the stay.

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delaying a scheduling order pending a ruling on a motion to dismiss was because (1) the

magistrate judge had already entered a recommendation to dismiss the case, (2) the challenging

party had himself moved for a stay of discovery, and (3) the challenging party had acknowledged

that “it would be proper to await the court’s ruling on the Defendant’s motion to dismiss.” 306

Fed. App’x. 844, 849 (5th Cir. 2009). None of those factors are true here. Moreover, the Fifth

Circuit in Agnew gave no special attention to the fact that the defendant had raised sovereign

immunity as a defense—an omission that is conspicuous by its absence.

Defendant also cites Pedroli ex rel. Microtune, Inc. v. Bartek, 251 F.R.D. 229 (E.D. Tex.

May 18, 2007) to support its claim that “it is especially difficult (and unnecessary)” to set

deadlines (or, by implication, conduct discovery) because “the parties’ briefing on the sovereign

immunity issue is not yet complete and it is thus unknown when the issue will be resolved.” Dkt.

No.14 at 4. But Defendant’s reliance on Pedroli is misplaced. In Pedroli, the court suspended the

scheduling conference and order because a federal statute required a stay of discovery in federal

securities fraud actions where motions to dismiss are pending. 251 F.R.D. at 230. But this case is

not a federal securities fraud action—and there is no federal statute or rule requiring a stay of

discovery here. Unlike Pedroli, Defendant has not pointed to any federal rule or statute requiring

a stay of discovery where the discretionary function exception is merely raised as a defense.

If Congress had intended for a stay on discovery to be imposed anytime Defendant raises

the discretionary function exception in a motion to dismiss, then some federal rule or statute

would say so. Indeed, Congress did take this step for securities fraud cases, as evidenced in

Pedroli. Id. And it just as easily could have done so in this scenario—but it did not. And the

Fifth Circuit’s approach in Freeman makes far more sense than Defendant’s approach here:

Sovereign immunity may shield the Defendant from discovery where the court has determined

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that Defendant’s sovereign immunity defense is successful and bars all claims. But it does not

follow that Defendant should be permitted to avoid discovery merely because it raises that

defense—without any regard for whether that defense is even successful or properly raised.

So in the absence of good cause, Defendant should not be able to circumvent the

requirements of discovery and scheduling by merely raising the discretionary function exception

as a defense. Rather than seeking a blanket stay on all scheduling and discovery while the

Motion to Dismiss is pending, Defendant should—where applicable—simply object to, or invoke

privilege for, specific discovery requests as they are received. And this approach would best

serve the primary purpose of Rule 16 to expedite pretrial procedure. S&W Enterprises, L.L.C. v.

SouthTrust Bank of Alabama, NA, 315 F.3d 533, 535 (5th Cir. 2003).

CONCLUSION

For the foregoing reasons, Defendant’s Motion to Stay should be denied in its entirety.

Dated: February 16, 2018

Respectfully submitted,

/s/ Trenton Roberts


TRENTON ROBERTS
Texas State Bar No. 24083745
ROBERTS & WILLIE, PLLC
212 Suntide Drive
Sunnyvale, TX 75182
Phone: (832) 328-7345
Email: Trenton@robertsandwillie.com

Attorney for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on February 16, 2018, I caused to be served upon the following a

true and correct copy of the Plaintiff’s Response in Opposition to Defendant’s Motion for Relief

From Order Requiring a Scheduling Conference and Report and For a Stay of Discovery via

ECF filing:

Philip D. MacWilliams
U.S. Department of Justice
Civil Division, Torts Branch
1331 Pennsylvania Ave., NW, Room 8080N
Washington, DC 20004
Telephone: (202) 616-4285
Email: phil.macwilliams@usdoj.gov
Attorney for Defendant

/s/ Trenton Roberts


TRENTON ROBERTS

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