Western District of Texas, txwd-5:2019-cv-00957

Unopposed MOTION to Stay Case by University Incarnate Word, University of the Incarnate Word School of Osteopathic Medicine.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JANE UIW-GEL DOE § § Plaintiff, § § vs. § § UNIVERSITY OF THE INCARNATE § CIVIL ACTION NO.: 5:19-cv-957-XR WORD AND UNIVERSITY OF THE § INCARNATE WORD SCHOOL OF § OSTEOPATHIC MEDICINE § JURY DEMAND § Defendants. § DEFENDANTS' UNOPPOSED MOTION TO STAY CASE UNTIL RULING ON DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Defendants, and file this Unopposed Motion to Stay Case Until Ruling on Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction, and respectfully show the Court as follows: I. STATEMENT OF THE CASE 1. Plaintiff filed suit anonymously, without seeking leave of court to do so, alleging claims for violation of: (1) Section 504 of the Rehabilitation Act, (2) fraud in the inducement, (3) breach of contract, (4) intentional infliction of emotional distress, (5) tortious interference, (6) conspiracy, and (7) implied warranties. Dkt. No. 1, pp. 18-23. Plaintiff's claims arise from her enrollment in and subsequent unsatisfactory departure from UIW's school of medicine. See Dkt. No. 1. 2. On September 11, 2019, Defendants filed a motion to dismiss for lack of subject matter jurisdiction, asserting that because Plaintiff cannot establish that her case "falls within the narrow Page 1 of 6 category of exceptional cases where the need for confidentiality outweighs the strong constitutional interest of openness of judicial proceedings." Sims v. Bush, CIV.SA-04-CA-1186- FB, 2005 WL 3337501, at *3 (W.D. Tex. Sept. 6, 2005). As a result, this Court lacks subject matter jurisdiction over this lawsuit brought by an anonymous Plaintiff. See Dkt. No. 5 (citing Doe v. Bush, CIV. SA-04-CA-1186-FB, 2005 WL 2708754, at *5 (W.D. Tex. Aug. 17, 2005), report and recommendation adopted sub nom. Sims v. Bush, CIV.SA-04-CA-1186-FB, 2005 WL 3337501 (W.D. Tex. Sept. 6, 2005)). 3. On September 13, 2019, this Court issued an Order and Advisory, ordering the parties to confer and file a proposed scheduling order by October 15, 2019. Dkt. No. 6. 4. On September 24, 2019, Plaintiff filed an opposed motion for an extension of time, seeking an extension until October 10, 2019, to file her response to the motion to dismiss. Dkt. No. 7. On October 10, 2019, Plaintiff filed her response. Dkt. No. 8. Defense counsel is in the process of preparing a Reply, which will be filed within the timeline provided by this Court's local rules. 5. On October 15, 2019, counsel for the parties conferred regarding this motion to stay until ruling on the pending motion to dismiss for lack of subject matter jurisdiction. Plaintiff is not opposed to the filing of this motion. II. ARGUMENT AND AUTHORITIES 6. Because the pending motion to dismiss for lack of subject-matter jurisdiction may dispose of the case entirely, Defendants request that the case be stayed until the Court rules on the pending motion. The Federal Rules of Civil Procedure presume that discovery may proceed despite the filing of a motion to dismiss. See Rio Grande Royalty Co. v. Energy Transfer Partners, L.P., No. H-08-cv-0857, 2008 WL 8465061 (S.D. Tex. Aug. 11, 2008). However, the Court has discretion and inherent power to stay discovery until preliminary questions that may dispose of the case are Page 2 of 6 determined. See Landry v. Air Line Pilots Ass'n Intern. AFL-CIO, 901 F.2d 404, 435-36 (5th Cir.), cert. denied, 111 S.Ct. 244 (1990). "A stay of discovery may be appropriate where the disposition of a motion to dismiss 'might preclude the need for the discovery altogether thus saving time and expense.'" U.S. ex rel. Gonzalez v. Fresenius Med. Care N. Am., 571 F. Supp. 2d 766, 767-68 (W.D. Tex. 2008); Von Drake v. National Broadcasting Co., Inc., No. 3-04-CV-0652R, 2004 WL 1144142 at *1 (N.D. Tex. May 20, 2004) (quoting Landry, 901 F.2d at 436); see Nankivil v. Lockheed Martin Corp., 216 F.R.D. 689 (M.D. Fla. 2003), aff'd 87 Fed. Appx. 713, 2003 WL 22669331 (11th Cir. Oct. 23, 2003), cert. denied, 2004 WL 540542 (U.S. May 17, 2004) (good cause to stay discovery exists where "resolution of preliminary motion may dispose of entire action.") 7. Rule 26(c) allows a party to move for a protective order for good cause to protect the party from "annoyance, embarrassment, oppression, or undue burden or expense." FED. R. CIV. P. 26(c). Good cause is shown when discovery may be entirely unnecessary should the court grant a pending motion to dismiss that may affect the entire case. See Dresser v. MEBA Medical & Benefits Plan, No. 08-2662, 2008 WL 2705584 at *2 (E.D. La. July 10, 2008); Von Drake, 2004 WL 1144142 at *1; Nankivil, 216 F.R.D. 689. When a case may be entirely disposed of through a motion to dismiss, discovery would be unduly burdensome, expensive, and for naught. See Dresser, 2008 WL 2705584 at *2. Only a complaint that survives a motion to dismiss entitles a plaintiff to discovery from the defendant. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 564 n.8 (2007)(referring to "understanding that, before proceeding to discovery, a complaint must allege facts suggestive of illegal conduct"); see also Scott Dodson, Federal Pleading and State Presuit Discovery, 14 LEWIS & CLARK L. REV. 43, 55 (2010); Scott Dodson, New Pleading, New Page 3 of 6 Discovery, 109 Mich. L. Rev. 53, 69 (2010)(commenting that Court's statements in Twombly reflect Court's belief that pending motion to dismiss automatically stays discovery). 8. "A stay of discovery pending the determination of a dispositive motion is an eminently logical means to prevent wasting the time and effort of all concerned, and to make the most efficient use of judicial resources." Chavous v. D.C. Fin. Responsibility & Mgmt. Assistance Auth., 201 F.R.D. 1, 2 (D.D.C. 2005); see also Gilbert v. Ferry, 401 F.3d 411, 415–16 (6th Cir. 2005) (finding that ordering a stay of discovery is not an abuse of discretion when a defendant has filed a motion to dismiss challenging the court's actual subject matter jurisdiction); Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d 795, 804 (Fed. Cir. 1999) ("When a particular issue may be dispositive, the court may stay discovery concerning other issues until the critical issue is resolved."). 9. Here, Defendants' motion to dismiss addresses Plaintiff's case in its entirety and contends that the Court lacks subject-matter jurisdiction. See Dkt. No. 5. A stay of the case would be appropriate in this matter because discovery may ultimately be futile, if Plaintiff's claims are dismissed. It would be unduly burdensome, oppressive, and expensive for Defendants to engage in and respond to discovery prior to a ruling on the motion to dismiss. Additionally, because Plaintiff has failed to identify herself in her pleadings, Defendants are without basic information necessary to conduct discovery. As in the cases cited supra, permitting discovery to go forward at this time would be unduly burdensome; discovery should be stayed until the resolution of the pending motion to dismiss. After the Court rules on the motion to dismiss, the parties may request additional time to conduct discovery, should the case proceed. Plaintiff is unopposed to this motion to stay. Page 4 of 6 PRAYER Defendants respectfully ask that the Court grant this Motion and stay the case until a ruling on the pending Motion to Dismiss issues. Defendants further move this Court to grant them all such other and further relief, special or general, at law or in equity, to which they are justly entitled. Respectfully Submitted, By: /s/ D. Craig Wood D. Craig Wood State Bar No. 21888700 By: /s/ Katie Payne Katie E. Payne State Bar No. 24071347 WALSH GALLEGOS TREVIÑO RUSSO & KYLE P.C. 1020 NE Loop 410, Suite 450 San Antonio, Texas 78209 TEL. NO.: (210) 979-6633 FAX NO.: (210) 979-7024 ATTORNEYS FOR DEFENDANTS CERTIFICATE OF CONFERENCE The undersigned counsel certifies that on October 15, 2019, she conferred with Plaintiff's counsel Terry Gorman via electronic communication regarding this motion. Plaintiff is unopposed to this Motion. /s/ Katie E. Payne KATIE E. PAYNE Page 5 of 6 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the 15th day of October, 2019, a true and correct copy of the above and foregoing was electronically filed with the Clerk of the Court using CM/ECF system, which will send notification of such filing to the following: COUNSEL FOR PLAINTIFF: Terry P. Gorman Gorman Law Firm, pllc 901 Mopac Expressway South, Suite 300 Austin, Texas 78746 /s/ Katie E. Payne KATIE E. PAYNE Page 6 of 6