United States Department Of Justice v. State of Nevada

1 DAVID REESE IAN CARR, Bar No. 13840 AL Bar No. ASB-0087-I67R General Counsel 2 Trial Attorney PUBLIC EMPLOYEES’ Civil Rights Division RETIREMENT SYSTEM OF NEVADA [3] U.S. Department of Justice 693 W. Nye Lane 4 950 Pennsylvania Ave NW Carson City, Nevada 89703 Washington, DC 20530 Tel: (775) 283-5608 5 Phone: (202) 598-5129 Fax: (775) 684-5534 David.Reese@usdoj.gov E-mail: icarr@nvpers.org [6] Attorney for the United States David N. Levine (admitted pro hac vice) 7 Samuel I. Levin (admitted pro hac vice) AARON D. FORD GROOM LAW GROUP, CHARTERED 8 Attorney General 1701 Pennsylvania Avenue, NW, Ste. 1200 Marni K. Watkins (Bar No. 9674) Washington, D.C. 20006 9 Chief Litigation Counsel Telephone: (202) 857-0620 Iva K. Todorova (Bar No. 15827) dlevine@groom.com [10] Senior Deputy Attorney General slevin@groom.com 11 State of Nevada Office of the Attorney General Attorneys for Defendant, Public 12 555 E. Washington Ave., Ste. 3900 Employees’ Retirement System of Nevada Las Vegas, NV 89101 13 (702)486-3420 (phone) (702)486-3773 (fax) [14] mkwatkins@ag.nv.gov 15 itodorova@ag.nv.gov 16 Attorneys for State of Nevada, Nevada’s Office of the Attorney General [17] UNITED STATES DISTRICT COURT 18 DISTRICT OF NEVADA 19 United States of America, Case No. 3:24-cv-00026-MMD-CLB 20 Plaintiff, ORDER GRANTING JOINT MOTION TO STAY 21 v. DISCOVERY 22 State of Nevada, et al. 23 Defendants. [24] Plaintiff United States of America and Defendants State of Nevada, Nevada’s Office of [25] the Attorney General, and the Public Employees’ Retirement System of Nevada (“NVPERS”), [26] the parties in the above-captioned matter, jointly move to stay this case until the Court decides [27] Defendants’ Motions to Dismiss. See Docs. 20 (Defendant NVPERS’ Motion to Dismiss), 23 [28] 1 (Defendants State of Nevada and Nevada’s Office of the Attorney General’s Motion to Dismiss). 2 Defendants’ Motions to Dismiss are dispositive of the United States’ claims and do not require 3 consideration of any discovery. Moreover, the United States anticipates that seeking discovery 4 will be complex, voluminous, and likely will involve expert testimony. In the interest of judicial 5 economy and avoiding unnecessary expense, the parties therefore respectfully request that this 6 Court stay discovery pending a ruling on Defendants’ Motions to Dismiss. 7 MEMORANDUM OF POINTS AND AUTHORITIES 8 I. BACKGROUND 9 This is a case brought by the United States pursuant to the Uniformed Services 10 Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301 et seq. (“USERRA”). 11 See Doc. 1 (Complaint). The underlying facts of this case are set forth in the Complaint, 12 Defendants’ Motions to Dismiss, and the United States’ responses thereto. See Docs. 20, 23, 31, 13 32. For brevity and judicial economy, the United States will not repeat the facts except as 14 necessary. Defendants have moved to dismiss the United States’ suit on grounds that the conduct 15 challenged by the United States does not, as a matter of law, violate USERRA’s provisions 16 governing pension benefits, 38 U.S.C. § 4318 . See Docs. 20 and 23 (Defendants’ respective 17 Motions to Dismiss). 18 Defendants’ Motions are fully dispositive of the United States’ claims. Additionally, the 19 parties anticipate that discovery in this matter will be complex and voluminous, requiring the 20 aggregation and review of data pertaining to servicemembers’ leave, pension contributions and 21 deductions, pension account deposits and rates of return, and actuarial costs for pension credits. 22 In addition to being broad in subject matter, discovery in this case will be broad in temporal 23 scope: the parties have agreed that, should this Court deny Defendants’ motions to dismiss, 24 discovery will encompass the time period from January 1, 2016 to the present.1 Finally, this 25 matter likely also will require expert testimony with respect to the issue of damages. [26] 27 1 Specifically, the parties have agreed that, for the purpose of identifying servicemembers affected 28 by the challenged conduct, the United States may request documents and information since 1 II. ANALYSIS 2 Courts have broad discretionary power to control discovery, including the decision to 3 stay discovery. See, e.g., Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (“The district 4 court has wide discretion in controlling discovery.”). When evaluating whether to stay 5 discovery, courts consider the goal of Rule 1 of the Federal Rules of Civil Procedure, which 6 directs that the Rules must be “construed and administered to secure the just, speedy, and 7 inexpensive determination of every action.” Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597 , 602 8 (D. Nev. 2011) (citing Fed. R. Civ. P. 1). While “the Federal Rules of Civil Procedure do not 9 provide for automatic . . . stays of discovery” during the pendency of a dispositive motion, “[a] 10 court may . . . stay discovery” under Fed. R. Civ. P. 26(c).” Schrader v. Wynn Las Vegas, LLC, [11] 2021 WL 4810324 , at *2 (D. Nev. Oct. 14, 2021) (Weksler, M.J.). The United States District 12 Court for the District of Nevada often determines that staying discovery is appropriate pending 13 the resolution of threshold questions of law, such as lack of subject-matter jurisdiction or 14 immunity. See, e.g. Ministerio Roca Solida v. U.S. Dep’t of Fish & Wildlife, 288 F.R.D. 500 , 15 506 (D. Nev. 2013) (granting stay based in part on apparent lack of subject-matter jurisdiction); 16 Beard v. Caesars Ent. Corp., No. 2:16-cv-00833-JAD-NJK, 2016 WL 9558932 , at *1 (D. Nev. 17 Sept. 6, 2016) (granting stay based on apparent lack of subject-matter jurisdiction). 18 In determining whether to stay discovery, courts in this District have considered (1) 19 whether the pending motion is potentially dispositive of the entire case; and (2) whether the 20 potentially dispositive motion can be decided without additional discovery. Baham v. Graham, [21] 2023 WL 8003245 , at *1 (D. Nev. Nov. 17, 2023); Ministerio Roca Solida, 288 F.R.D. at 506 22 (articulating “two part test”).2 This analysis requires the court to take a “preliminary peek” at [23] 2 Other courts in this District have articulated a different two-part test for the propriety of a stay: [24] “(1) whether the dispositive motion can be decided without further discovery, and (2) whether 25 good cause exists to stay discovery.” See Warren v. Hilton Grand Vacations, 2024 WL 1419416 , at *1 (D. Nev. Apr. 1, 2024) (Albregts, M.J.); MI-94, LLC v. Chemetall US, Inc., 2023 WL 26 8186618, at *4 (D. Nev. Nov. 27, 2023) (same). See also Baham, 2023 WL 8003245 , at *1 (Weksler, M.J.) (“But this Court can also determine whether to stay discovery by considering [27] whether (1) the dispositive motion can be decided without further discovery; and (2) good cause 28 exists to stay discovery.”). The parties submit that, regardless of which test is applied, a stay is 1 the merits of the potentially dispositive motion. Baham, 2023 WL 8003245 , at *1; Warren v. 2 Dollar Tree, 2023 WL 7195203 , at *1 (D. Nev. Oct. 31, 2023); Tradebay, 278 F.R.D. at 603 . 3 This assessment is not meant to prejudge a motion’s outcome but to accomplish the cost- and 4 time-saving objectives of Rule 1 by evaluating the justice of delaying discovery. Warren, 2023 5 WL 7195203 , at *1; Tradebay, 278 F.R.D. at 603 . 6 Here, Defendants’ pending Motions to Dismiss easily satisfy these criteria. First, 7 Defendants’ Motions, while not presenting questions of subject-matter jurisdiction or immunity, 8 nonetheless are potentially dispositive of the entire case. If the Court determines that, as a matter 9 of law, Defendants’ conduct as alleged in the Complaint complied with the requirements of 38 10 U.S.C. § 4318 , USERRA’s pension benefits provision, it will dispose entirely of the United 11 States’ claims against Defendants. Second, all information necessary to decide the Defendants’ 12 Motions to Dismiss is set forth in the Complaint or is subject to judicial notice, such that the 13 parties do not need to conduct discovery for the Court to decide the Motions to Dismiss. See 14 Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (“[S]ince the appellants’ conduct did not raise 15 factual issues that required discovery for their resolution, the district court did not abuse its 16 discretion in staying discovery pending a hearing on the motion to dismiss.”). 17 Alongside the two-part standard set forth above, some courts in this District have applied 18 a third requirement: that, after taking the “preliminary peek” at the merits of a pending motion 19 to dismiss, the Court must be “convinced that the plaintiff will be unable to state a claim for 20 relief.” Flynn v. Nevada, 345 F.R.D. 338 , 352 (D. Nev. 2024) (Koppe, M.J.). See also Even v. 21 Hebel, 2024 WL 2943293 , at *3 (D. Nev. Feb. 8, 2024) (Youchah, M.J.) (articulating three-part 22 test); Flores v. Merck & Co., Inc., 2021 WL 4781503 , at *2 (D. Nev. Oct. 13, 2021) (Baldwin, 23 M.J.) (same). However, this requirement does not seem to have been universally applied in the 24 District of Nevada. See, e.g., Warren v. Hilton Grand Vacations, 2024 WL 1419416 , at *1 (D. 25 Nev. Apr. 1, 2024) (Albregts, M.J.) (“Good cause” to grant stay of discovery “may be established 26 through the preliminary peek test, but it may also be established by other factors not related to [27] 28 appropriate: Defendants’ Motions to Dismiss can be decided without further discovery, and “good 1 the merits of the dispositive motion.”); Schrader, 2021 WL 4810324 , at *3 (“This Court . . . has 2 found the preliminary peek test to be problematic because it is inaccurate and inefficient,” and 3 finding “good cause” to grant stay even though not convinced that defendants would prevail on 4 their motions to dismiss). See also Richey v. Axon Enterprises, Inc., 2020 WL 3800524 , at *3 5 (D. Nev. July 6, 2020) (Baldwin, M.J.) (even though “not . . . entirely convinced” that pending 6 motion to strike would be granted, finding a limited stay “as a general matter, . . . is nonetheless 7 appropriate under the circumstances,” when “issues presented by the motion to strike are novel 8 . . . and appear to be legally unsettled.”). 9 Here, for the reasons set forth above and in the United States’ oppositions (see Doc. Nos. 10 31, 32) to Defendants’ pending Motions to Dismiss, the United States remains opposed to 11 Defendants’ motions and stands by its arguments made in those oppositions that Defendants’ 12 motions should be denied. However, for the purposes of satisfying the Tradebay analysis, the 13 parties collectively submit to the Court that Defendants’ pending Motions to Dismiss are 14 sufficiently serious to meet this Court’s standard for the purposes of staying discovery, in the 15 sense that Defendant’s Motions raise fundamental and pure questions of law regarding the scope, 16 applicability, and text of USERRA. If the Court is persuaded by Defendants’ arguments, the 17 Court could dismiss this case in its entirety. 18 The parties therefore contend that the requested stay “furthers the goal of efficiency for 19 the court and litigants.” Little, 863 F.2d 681, 685 (9th Cir. 1988). “With Rule 1 as its prime 20 directive, the court must decide whether it is more just to speed the parties along in discovery 21 while a dispositive motion is pending or to delay discovery to accomplish the inexpensive 22 determination of the case.” Blocher v. Mindgeek USA Inc., 2023 WL 5017711 , at *2 (D. Nev. 23 Aug. 4, 2023) (Baldwin, M.J.). Here, the parties respectfully submit that prudence calls for the 24 latter course, and ask that discovery be stayed during the pendency of Defendants’ Motions to 25 Dismiss. 26 III. CONCLUSION 27 Staying discovery while Defendants’ Motions to Dismiss are pending will best 28 accomplish Rule 1’s objectives to secure the just, speedy, and inexpensive determination of this Accordingly, the parties respectfully request this Court grant their motion to stay 2 || discovery. Should Defendant’ Motions to Dismiss be denied, the parties request 30 days from 3 || the date Defendants file their answer(s) to hold a Rule 26(f) conference, and fourteen days after 4 || that Rule 26(f) conference to file a stipulated discovery plan and scheduling order, which is the 5 || standard timeframe provided under Local Rule 26-1. 6 Respectfully submitted this 1st day of May, 2024. 7 For Defendant the Public Employees’ KRISTEN CLARKE Retirement System of Nevada Assistant Attorney General 8 Civil Rights Division By:_/s/lan E. Carr 9 Tan E. Carr KAREN D. WOODARD General Counsel Chief 10 Public Employees’ Employment Litigation Section Retirement System of Nevada Civil Rights Division 11 693 W. Nye Lane Carson City, NV 89703 By:_/s/ David N. Reese 12 David N. Reese /s/ Samuel I, Levin Trial Attorney 13 Samuel I. Levin Civil Rights Division David N. Levine U.S. Department of Justice 14 Groom Law Group 950 Pennsylvania Ave NW Suite 1200 Washington, DC 20530 15 1701 Pennsylvania Ave NW (202) 598-5129 16 Washington, DC 20006 David.Reese@usdo].gov For Defendant the State of Nevada and the JASON M. FRIERSON 17 Office of the Attorney General of Nevada United States Attorney 18 By:_/s/Iva K. Todorova ote noNied Sine, Att Nevada Attorney General ssistant United states Altomey 19 Suite 3900 501 Las Vegas Boulevard South, Ste 110 555 East Washington Ave Las Vegas, Nevada 89101 20 Las Vegas, NV 89101 Tel: (702) 388-6336 Fax: (702) 388-6418 ednin.martinez@usdo].gov 22 Attorneys for the United States [24] 25 IT ISSO ORDERED: 26 DATED this—ist_ day of May 2024. * [27] 28 UNITED STATES MAGISTRATE JUDGE