United States District Court, S.D. Mississippi.
T. WINGATE UNITED STATES DISTRICT COURT JUDGE
THIS COURT is Defendant Awesome Products, Inc.'s
Motion to Stay Discovery and/or for a Protective Order
[Docket no. 25]. Defendant Awesome Products,
Inc. (hereinafter referred to as “Awesome
Products”) filed its motion and supporting memorandum
brief pursuant to Federal Civil Procedure Rules
26(c)(1)(A) and 26(d) on September 20, 2018.
Previously, Awesome Products filed a Motion to Dismiss
Plaintiff's Complaint [Docket no. 11] on September 14,
2018. In the motion at hand, Awesome Products campaigns this
Court to issue a temporary stay of discovery and all
discovery-related proceedings until this Court rules on
Awesome Products' pending motion to dismiss. For the
reasons stated herein, this Court finds Defendant Awesome
Products' motion is well-taken and should be GRANTED.
United States Court of Appeals for the Fifth Circuit has
recognized that a stay of discovery is appropriate when a
motion asking for dismissal of the case is pending because:
(1) such motions are decided based on the content of the
complaint only, without regard to facts obtained during
discovery; and (2) the motion, if granted, would dispose of
the case, thus avoiding the effort and expense of discovery.
Landry v. Air Line Pilots Ass'n Int'l
AFL-CIO, 910 F.2d 404, 435-36 (5th Cir. 1990), cert.
denied, 111 S.Ct. 2440 (1990). This Court has discretion
to grant this type of stay “for good cause shown”
based on Federal Rule of Civil Procedure 26 (c). “Good
cause may be shown where a party has filed a dispositive
motion, the stay is for a short period of time, and the
opposing party will not be prejudiced.” Spencer
Trask Software and In'l Servs., LLC v. Rpost Int'l
Lim., 206 F.RD. 367 at 368 (S.D.N.Y. 2002).
Court finds that good cause to grant a stay of discovery
exists here. In its dispositive motion seeking the dismissal
of Plaintiff's Complaint, Awesome Products asserts that
Plaintiff's claims are barred by the Mississippi Products
Liability Act (“MPLA”), and that the Complaint
lacks any factual support to establish a cause of action
under the MPLA. This Court agrees that unnecessary discovery
costs should be averted where a complaint is insufficient;
therefore, discovery in this case should be stayed until the
Court determines whether Plaintiff's Complaint satisfies
all pleading requirements.
Court further notes that to date, the parties have not
conferred and agreed on a discovery plan as required by Rule
26(f). Rule 26(d) plainly states, “a party
may not seek any discovery from any source before the parties
have conferred as required by Rule 26(f), ” unless the
proceeding is one exempt from initial disclosure under Rule
26(a)(1)(B), which is not the case here; moreover, there is
no exception in this matter authorized by the rules,
stipulation, or any court order; as such, Plaintiff's
requests for discovery are premature.
the requests for discovery were timely and proper under Rule
26(f), Plaintiff has not filed a response to Defendant's
motion to stay discovery. This Court finds that
Plaintiff's lack of response is effectively a concession.
See Taylor v. Hinds County Dept. of Human Svcs.,
2013 WL 5406485, * 6 (S.D.Miss. Sept. 25, 2013). Accordingly,
this Court finds Defendant Awesome Products' motion
should be GRANTED.
IS, THEREFORE, ORDERED that the Defendant Awesome Product,
Inc.'s Motion to Stay Discovery and/or For a Protective
Order [Docket no. 25] is hereby GRANTED and all discovery
matters are stayed pending disposition of Defendant Awesome
Products' Motion to Dismiss and until the parties can
conduct the requisite discovery conference under Rule
ORDERED AND ADJUDGED.
 (c) Protective
(1) In General. A party or
any person from whom discovery is sought may move for a
protective order in the court where the action is pending --
or as an alternative on matters relating to a deposition, in
the court for the district where the deposition will be
taken. The motion must include a certification that the
movant has in good faith conferred or attempted to confer
with other affected parties in an effort to resolve the
dispute without court action. The court may, for good cause,
issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense,
including one or more of the following:
(A) forbidding the disclosure or