IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Karen Boddie, :

Plaintiff, :

v. : Case No. 2:12-cv-158

 : JUDGE MICHAEL H. WATSON

PNC Bank, NA, et al., Magistrate Judge Kemp

Defendants. :

OPINION AND ORDER

This case involves a dispute over plaintiff Karen Boddie’s

attempt to engage in a specific banking transaction at the Bexley

Branch of PNC Bank on July 30, 2011. Believing that she had been

prevented from completing the transaction as she requested due to

her race and that she was otherwise mistreated by bank employees,

Ms. Boddie filed an eleven-count complaint against both PNC Bank

and PNC Financial. 

On July 26, 2012, both defendants moved for judgment on the

pleadings as to ten of the eleven counts of the complaint. The

parties subsequently stipulated to the dismissal of PNC Financial

as a party, and to the dismissal of some of the remaining counts

which had been pleaded against PNC Bank. At the same time they

moved for judgment on the pleadings, the defendants moved for a

stay of discovery until their motion for judgment on the

pleadings is decided. Ms. Boddie opposes such a stay. For the

following reasons, no stay of discovery will be ordered.

I.

Defendants advance the typical reasons for staying discovery

pending resolutions of a dispositive motion: that if the motion

is granted in its entirety, there will be no need for discovery

at all (or for much discovery - one count of the complaint is not

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addressed by the motion), and that even if the motion is granted

only in part, it will clarify the claims on which discovery will

be needed and may result in less discovery, with the potential

for cost savings to both parties. Defendants also argued that

PNC Financial would be spared the expense of engaging in

discovery were the claims against it dismissed, but this argument

has been mooted by the stipulated dismissal of that party. 

Finally, defendants note that some police officers are among the

potential deponents in this case, and it would be better for the

public to postpone their depositions until it is known whether

taking their depositions will even be necessary. Ms. Boddie,

predictably, argues that she is interested in a prompt resolution

of her case and that the Court should not delay discovery for

however long it may take to resolve the motion for judgment on

the pleadings. The Court notes that the current discovery cutoff

date is February 28, 2013, which is a fair distance into the

future, but that the first deadline for identifying expert

witnesses is only about a month away.

II.

As defendants correctly note, a stay of discovery for any

reason is a matter ordinarily committed to the sound discretion

of the trial court. Chrysler Corp. v. Fedders Corp.. 643 F.2d

1229 (6th Cir. 1981). In ruling upon a motion for stay, the

Court is required to weigh the burden of proceeding with

discovery upon the party from whom discovery is sought against

the hardship which would be worked by a denial of discovery. 

Additionally, the Court is required to take into account any

societal interests which are implicated by either proceeding or

postponing discovery. Marrese v. American Academy of Orthopedic

Surgeons, 706 F.2d 1488, 1493 (7th Cir. 1983). When a stay,

rather than a prohibition, of discovery is sought, the burden

upon the party requesting the stay is less than if he were

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requesting a total freedom from discovery. Id.

However, one argument that is usually deemed insufficient to

support a stay of discovery is that a party intends to file, or

has already filed, a motion to dismiss for failure to state a

claim under Rule 12(b)(6) or other dispositive motion. As one

court has observed, 

The intention of a party to move for judgment on the

pleadings is not ordinarily sufficient to justify a

stay of discovery. 4 J. Moore, Federal Practice §

26.70[2], at 461. Had the Federal Rules contemplated

that a motion to dismiss under Fed.R.Civ.Pro. 12(b)(6)

would stay discovery, the Rules would contain a

provision to that effect. In fact, such a notion is

directly at odds with the need for expeditious

resolution of litigation.... Since motions to dismiss

are a frequent part of federal practice, this provision

only makes sense if discovery is not to be stayed

pending resolution of such motions. Furthermore, a

stay of the type requested by defendants, where a party

asserts that dismissal is likely, would require the

court to make a preliminary finding of the likelihood

of success on the motion to dismiss. This would

circumvent the procedures for resolution of such a

motion. Although it is conceivable that a stay might be

appropriate where the complaint was utterly frivolous,

or filed merely in order to conduct a "fishing

expedition" or for settlement value, cf. Blue Chip

Stamps v. Manor Drug Stores, 421 U.S. 723, 741, 95

S.Ct. 1917, 1928, 44 L.Ed.2d 539 (1975), this is not

such a case.

Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N. D. Cal.

1990). See also Turner Broadcasting System, Inc. v. Tracinda

Corp., 175 F.R.D. 554, 556 (D. Nev. 1997) (“a pending Motion to

Dismiss is not ordinarily a situation that in and of itself would

warrant a stay of discovery....”). Thus, unless the motion

raises an issue such as immunity from suit, which would be

substantially vitiated absent a stay, or unless it is patent that

the case lacks merit and will almost certainly be dismissed, a

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stay should not ordinarily be granted to a party who has filed a

garden-variety Rule 12(b)(6) or 12(c)) motion.

The occasions when this Magistrate Judge has granted such a

stay are few and far between. DiYanni v. Walnut Tp. Bd. of

Educ., 2006 WL 2861018 (S.D. Ohio Oct. 4, 2006) is representative

of those instances where a stay was denied; as the Court said in

that case, in reasoning equally applicable here,

the motion for judgment on the pleadings does not raise

any issues of immunity from suit, nor does it present

the type of narrow legal issue (such as the running of

the statute of limitations) which is easily evaluated

in order to determine whether the motion to dismiss has

merit. Without commenting on the merits of the

defendants' motion for judgment on the pleadings, the

Court notes that legal arguments have been presented

both with respect to the viability of the §1983 claim

and the state law negligence claim and the Court is not

in a position to determine that it is a virtual

certainty that the motion will be granted. No other

reasons have been advanced to stay discovery.

Consequently, as a sound exercise of the Court's

discretion, the Court will deny the motion to stay. 

Id. at *2. See also Osman v. Mission Essential Personnel, LLC,

2012 WL 1831706 (S.D. Ohio May 18, 2012); Solomon Realty Co. v.

Tim Donut U.S. Ltd., Inc., 2009 WL 2485992 (S.D. Ohio Aug. 11,

2009); Lenker v. National Service Industries, Inc., 2006 WL

642560 (S.D. Ohio March 9, 2006). When the Court has ordered a

stay, the circumstances generally indicated that some preliminary

evaluation had been made of the plaintiff’s claims and they had

been found wanting, and that any stay would be short. See, e.g.,

Carter v. Wilkinson, 2009 WL 81217 (S.D. Ohio Jan. 9, 2009)(stay

ordered where Magistrate Judge had already issued a report and

recommendation on the dispositive motion and recommended

dismissal of the claims against 25 defendants); Miller v.

Countrywide Home Loans, 2010 WL 2246310 (S.D. Ohio June 4, 2010)

(stay ordered where many of the plaintiff’s claims had been

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decided against him in another court and where the potential for

burdensome discovery was great).

Despite the fact that stays of discovery during the pendency

of dispositive motions are rarely granted, the Court does

consider each such motion on its individual merits. As the Court

noted in Heartland Jockey Club Ltd. v. Penn National Gaming,

Inc., 2009 WL 5171829, *4 (S.D. Ohio Dec. 21, 2009), 

This Court takes seriously its obligation to manage

discovery and recognizes that there are cases where the

plaintiff's claim is so tenuous, and the potential

injury to either private or societal interests from

unfettered discovery is so great, that the Court must

limit or preclude discovery in order to strike the

proper balance between the competing interests

involved. 

That does not, however, appear to be this case. It is true, from

a review of the briefing on the motion for judgment on the

pleadings, that some of Ms. Boddie’s claims appear to be weaker

than others, but if any of her significant claims - such as the

claim under 42 U.S.C. §1981 - survive, relatively full discovery

will occur on such claims. 

Defendants have made one additional argument based on the

fact that Ms. Boddie has expressed a wish to depose the police

officers who were called to the bank on the day in question. 

However, the mere fact that police officers are among the

potential deponents is not a particularly weighty factor in

determining whether to stay discovery. That is not to say that

police officers’ time is not valuable or that they do not occupy

a place of importance in society; it is, and they do. But due to

the very nature of their profession, police officers often become

witnesses in both civil and criminal cases. Further, their

depositions can be taken at times which do not interfere with

their work schedules or the safety of their respective

communities. If scheduling issues do arise with regard to police

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officers, they (like any other witnesses) may raise those issues

at an appropriate time, and the Court will treat them fairly

giving due regard to their status as non-party witnesses who,

because they have no stake in the outcome, should be accommodated

as much as possible both by counsel (see Fed.R.Civ.P. 45) and by

the Court.

III.

For all of these reasons, and in the exercise of its

discretion, the Court denies the defendants’ motion for a stay of

discovery (#21) pending a resolution of the motion for judgment

on the pleadings.

IV.

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the order or

part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the objecting party are due seven days thereafter. 

The District Judge, upon consideration of the motion, shall set

aside any part of this Order found to be clearly erroneous or

contrary to law.

This order is in full force and effect, notwithstanding the

filing of any objections, unless stayed by the Magistrate Judge

or District Judge. S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp 

United States Magistrate Judge

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