BUY™	SELL™	SHOP™
Downloaded From www.TextBookDiscrimination.com
SELL YOUR OWN TEMPLATES (help others get the justice that they deserve)
BUY™	SELL™	SHOP™

FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

[plfName]	)	Case No (LT)
Petitioner	)	[caseNo]
)
v.	)
)
[defName]	)
Respondent	)

PETITIONER’S RESPONSE IN OPPOSITION TO RESPONDENT’S MOTION TO STAY DISCOVERY

Petitioner, [plfName], on this [D] day of [MMM] [YYYY], respectfully asks this Honorable Court to deny ‘[stayMotion]’ (hereinafter “That Motion”).

Key Points:

Grounds	Misleading; Unmeritorious; Unsubstantiated; Harmful;

Precedence	USFLMD regularly denies such motions

Table of Contents:

Context	2nd Page
Motion	3rd Page
Certificates	9th Page
Affidavit	10th Page

Background:	Respondent moved for an indefinite discovery stay

Problem:	Petitioner’s substantial rights would be harmed by a stay

Request:	This Court denies Respondent’s motion

Precedence

DOAH Case No 07-3704	- Case Law (2/26/08)

DOAH denied a similar motion to stay

Abbreviations

[C###]	-	Paragraph ### from The Complaint1/
[M###]	-	Page ### from That Motion2/
MDD	-	Middle District Discovery Handbook (2015)
USFLMD	-	US District Court, Florida, Middle District
USFLSD	-	US District Court, Florida, Southern District

RESPONSE

Procedural History

On [MMMSt] [DSt], [YYYYSt], Petitioner initiated this action by suing Respondent for employment discrimination (under 42 USC §2000e, §760 FS, etc.).

On [MMMend] [Dend], [YYYYend], Respondent moved to dismiss this case on customary grounds (inapplicable claim, etc.). For which Petitioner responded on [MMMrsp] [Drsp], [YYYYrsp] (citing Rule 1.100 Fla. R. Civ. P., etc.).

Accordingly, Petitioner began discovery.

Lastly, on [MMMx] [Dx], [YYYYx], Respondent moved for a stay of discovery. Basing its request on costliness [MXXX] (emphasis added):

“[defQuote]”

Direct Rebuttal

Respondent’s argument for an order to stay proceedings fails for four reasons: (1) it was misleading; (2) it was unmeritorious; (3) it was unsubstantiated; and (4) it would harmfully delay Petitioner’s case.

(1) Misleading Argument

Respondent navigated this Court down a misleading path. It did so by relying primarily on the 11th Circuit’s decision in Chudasama v Mazda Corp., 123 F. 3d 1353 (11th Cir. 1997); citing it four (4) times and quoting it as follows:

“when faced with a motion to dismiss a claim for relief that significantly enlarges the scope of discovery, the district court should rule on the motion before entering discovery orders, if possible.”

The Chudasama case (hereinafter “That Case”) differs from the instant case in all material respects.

For starters, That Case involved “excessive and dilatory discovery tactics run[ning] amok”; while this case has experienced no such thing.

That Case “resulted in draconian sanctions”; this case has not.

That Case had one count that “substantially widened the scope of discovery”; this case does not.

That Case had multiple years’ worth of discovery; this case has not.

That case involved a “dubious” claim; this case does not6/.

These differences are material because the 11th Circuit based its decision on “[That Case] illustrat[ing] the mischief that results when a district court effectively abdicates responsibility...”. No such mischief or abdication has been exhibited in this case.

Subsequent to Chudasama, other district courts have steered clear of that path. In Romacorp v Prescient, 1:10-cv-22872 (USFLSD, 6/8/11), USFLSD said:

“Various courts have recognized that [Chudasama] does not stand for the broad proposition that a court must stay discovery when there is a pending motion to dismiss.”

Likewise, in Bocciolone v Solowsky, 1:08-cv-20200 (USFLSD, 7/24/08), USFLSD explained Chudasama’s inapplicability:

“Since the Eleventh Circuit handed down Chudasama, it has been analyzed on numerous occasions, and courts have consistently rejected any per se requirement to stay discovery pending resolution of a dispositive motion.”

Indeed, this Court codified these holdings in §I.E.4 of the Middle District’s Civil Discovery Handbook:

“Such [unilateral motions to stay discovery upon the pendency of a motion to dismiss] are rarely granted.”

[para001]

(2) Premature, Melting Peaks of Requested Dismissal

The proper route required Respondent to show the “necessity, appropriateness, and reasonableness” of a discovery stay (see Ray v Spirit Airlines, 0:12-cv-61528 (USFLSD, 11/9/12).

In Feldman v Flood, 176 FRD 651 (USFLMD 1997), this Court held that such a showing would entail “tak[ing] a preliminary peek” at the motion/response to dismiss to see “if there appears to be an immediate and clear possibility that it will be granted”.

As the record shows, this case’s path will not arrive at an order to stay either. This is so because: absent a clear indication that a case will be dismissed in its entirety, a motion to stay should be denied.

Please accord SKY v Greenshoe, 1:06-cv-21722 (USFLSD, 1/24/07), where the court denied a discovery stay because a preliminary review of the motion to dismiss showed that it was more likely than not that some claims would survive.

Similarly instructive is Ray; in which USFLSD declined to stay discovery because a preliminary peek at the motion to dismiss and response thereafter did not indicate the case was “surely destined for dismissal”.

[para002]

[para003]

“[plfQuote001]”

Thus, a “preliminary peek” into the opposed motion to dismiss reveals that all-or-some of Petitioner’s counts will persist.

[para004]

[para005]

(3) Unsubstantiated Claims of ‘Undue Expense’

Moreover, Respondent never produced facts to support That Motion’s claim of undue expense.

The pertinent parts of That Motion read as follows (emphasis added) [MXXY]:

“[defQuote002]"

Respondent, however, failed to disclose what those purported costs were. It never outlined its legal fees (hourly rate for lead counsel, partner, paralegals) or anything else:

No billing records.

No affidavits responsive to costs or time.

Nothing. Just a bare statement.

The opposing – and controlling - Ray decision included a note that the movant failed to identify “in any specific and tangible way the unreasonable discovery burdens it [would] face absent a stay”.

Likewise, since Respondent – in the instant case - failed to substantiate its claims of ‘undue expense’ this Court should deem a discovery stay inoperable.8/

(4) Harmful Delay

Lastly, even if Respondent could somehow shift the burden onto Petitioner, Petitioner can oblige.

Petitioner would be harmed by a discovery stay.

For one, his ability to fully litigate his case would be severely prejudiced. The undefined timespan for a federal court ruling would leave his evidence pursuits in despair.

Despair in terms of non-party evidence destruction (see Affidavit)

Despair in terms of evidence expiration

Despair of withered testimony

Secondly, the longer Petitioner’s pro se litigation continues the heavier the financial burden of prosecution becomes. USFLSD detailed the major categories of financial damage that civil rights litigants endure upon unlawful employment discrimination in its Hardman v Zale, 0:16-cv-62826-DPG decision (USFLMD, 2/28/17).

Plus, as the Court has already certified, Petitioner is a poor person.

So, as a poor person seeking justice, Petitioner cannot afford to take Respondent’s misled, melted, unmerited path to discovery stays.

CONCLUSION

WHEREFORE, Petitioner respectfully asks this Court to deny Respondent’s Motion for a Stay of Discovery.

Dated this [D] day of [MMM] [YYYY].

Respectfully submitted,

/s/ [plfName]

[plfName], Petitioner

[plfAddy]

P: [plfPhn]

E: [plfEml]

W: TextBookDiscrimination.com

Get Booked Up on Justice!

CERTIFICATE OF COMPLIANCE

I certify that the size and style of type used in this document is Times New Roman 14-point Font (caption) and Courier New 12-point Font (contents); thus complying with the font requirements of Rule 9.210(a)(2) Fla. R. App. P.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this [D] day of [MMM] [YYYY], I electronically filed the foregoing with the Clerk of Courts by using the eALJ system; which will send a notice of electronic filing to the attached service list.

/s/ [plfName]

Endnotes:

1/ The Complaint = “Complaint Against [defName]” (Dkt No. 1).
2/ That Motion = “Respondent’s Motion to Stay Discovery...” (Dkt No. [NN]).

How-To Guide: (interactive)

TextBookDiscrimination.com/Guides/Responses/Stay.html

SERVICE LIST

[defAtt], Esquire ([barNum]) E: [defEml] P: [defPhn] (defendant’s trial lawyers)

PETITIONER’S AFFIDAVIT

FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

[plfName]	)	Case No (LT)
Petitioner	)	[caseNo]
)
v.	)
)
[defName]	)
Respondent	)

PETITIONER’S AFFIDAVIT IN SUPPORT OF PETITIONER’S RESPONSE IN OPPOSITION TO RESPONDENT’S MOTION TO STAY DISCOVERY

The affiant, [plfName], swears or affirms as follows:

Background

I am over the age of eighteen (18).

I am a plaintiff in the above-captioned case.

This affidavit is made in good faith.

Familiarity

I have read DOAH’S Uniform Rules, the Florida Rules of Civil Procedure, and the FCHR’s set of Florida Administrative Codes.

The information in this affidavit is based on my own personal knowledge.

Facts

[pertinentFact001]

[pertinentFact002]

[pertinentFact003]

[pertinentFact004]

[pertinentFact005]

[pertinentFact006]

Verification Under Oath Pursuant to §92.525(1)(c)

Under penalties of perjury, I declare that I have read the foregoing and that the facts stated in it are true to the best of my knowledge and belief.

STATE OF FLORIDA COUNTY OF [countyName]	[D]/[M]/[YYYY]
[plfName], Petitioner/Affiant

BUY™	SELL™	SHOP™
Downloaded From www.TextBookDiscrimination.com
SELL YOUR OWN TEMPLATES (help others get the justice that they deserve)
BUY™	SELL™	SHOP™