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UNITED STATES DISTRICT COURT

[courtDistrict], [courtDivision]

[plfName]	)	Case No (LT)
Plaintiff	)	[caseNo]
)
v.	)
)
[defName]	)
Defendant	)

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO STAY DISCOVERY

Plaintiff, [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:	Defendant moved for an indefinite discovery stay

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

Request:	This Court denies Defendant’s motion

§I.E.4 MDD | Stays of Discovery | (emphasis added)

“Normally, the pendency of a motion to dismiss or a motion for summary judgment will not justify a unilateral motion to stay discovery pending resolution of the dispositive motion. Such motions for stay are rarely granted. However, unusual circumstances may justify a stay of discovery in a particular case upon a specific showing of prejudice or undue burden.”

Precedence

2:18-cv-00254-SPC-NPM	- USFLMD (12/4/20)

2:20-cv-00542-SPC-MRM	- USFLMD (11/6/20)

3:18-cv-00811-TJC-MCR	- USFLMD (8/4/20)

8:17-cv-02647-SCB-JSS	- USFLMD (12/7/20)

8:19-cv-02523-TPB-AAS	- USFLMD (12/31/20)

USFLMD recently denied motions to stay discovery

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], Plaintiff initiated this action by suing Defendant for employment discrimination (under 42 USC §1981, 42 USC §2000e, §760 FS, etc.).

On [MMMend] [Dend], [YYYYend], Defendant moved to dismiss this case on customary grounds (inapplicable claim, etc.). For which Plaintiff responded on [MMMrsp] [Drsp], [YYYYrsp] (citing Rule 8 Fed. R. Civ. P., etc.).

On [MMMord] [Dord], [YYYYord], this Court rendered the Case Management and Scheduling Order. Accordingly, Plaintiff began discovery.

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

“[defQuote]”

Direct Rebuttal

Defendant’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 Plaintiff’s case.

(1) Misleading Argument

Defendant 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 Defendant 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 Plaintiff’s counts will persist.

[para004]

[para005]

(3) Unsubstantiated Claims of ‘Undue Expense’

Moreover, Defendant 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]"

Defendant, 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 Defendant – 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 Defendant could somehow shift the burden onto Plaintiff, Plaintiff can oblige.

Plaintiff 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 Plaintiff’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, Plaintiff is a poor person.

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

CONCLUSION

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

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

Respectfully submitted,

/s/ [plfName]

[plfName], Plaintiff

[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 this Court.

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 its online filing page. I also emailed it to the attached service list.

/s/ [plfName]

Endnotes:

1/ The Complaint = “Complaint Against [defName]” (Dkt No. 1).
2/ That Motion = “Defendant’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)

PLAINTIFF’S AFFIDAVIT

UNITED STATES DISTRICT COURT

[courtDistrict], [courtDivision]

[plfName]	)	Case No (LT)
Plaintiff	)	[caseNo]
)
v.	)
)
[defName]	)
Defendant	)

PLAINTIFF’S AFFIDAVIT IN SUPPORT OF PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’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 the Local Rules of Court, Federal Rules of Civil Procedure, the Federal Rules of Evidence, and the Middle District’s Discovery Handbook.

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

Facts

[pertinentFact001].

[pertinentFact002].

[pertinentFact003].

[pertinentFact004].

[pertinentFact005].

[pertinentFact006].

Verification Under Oath Pursuant to 28 USC §1746

I declare under penalty of perjury that the foregoing is true and correct. Executed on this [D]th day of [MMM] [YYYY].

UNITED STATES OF AMERICA	[D]/[M]/[YYYY]
[plfName], Plaintiff/Affiant

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