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4811-3474-0080, v. 5

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

STACIE RAY, et al. 

Plaintiffs, 

vs. 

LANCE HIMES, et al. 

Defendants. 

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 CASE NO.: 2:18-cv-00272-MHW-CMV 

JUDGE MICHAEL WATSON 

MAGISTRATE JUDGE CHELSEY 

VASCURA 

REPLY IN SUPPORT OF DEFENDANTS’ 

MOTION TO STAY DISCOVERY 

I. INTRODUCTION 

Defendants’ Motion to Stay Discovery (the “Motion”) seeks a brief stay of discovery while 

the Court considers Defendants’ Motion to Dismiss (Doc. 18). Defendants filed the Motion in the 

interest of judicial economy, to limit potentially unnecessary discovery, and to preserve taxpayer 

funds. Moreover, the issues before the Court in Defendants’ Motion to Dismiss are legal and will 

determine the need for fact discovery, if any. 

In response to the Motion, Plaintiffs argue that Defendants are not entitled to a stay—even 

a brief one—because they already have unnecessarily delayed proceedings. See Doc. 27 at 1. That 

is simply not the case. As the Court knows, reasonable pleading extensions are requested and 

granted in the ordinary course of litigation. Indeed, Plaintiffs did not oppose Defendants’ 

requested extension to respond to the Complaint, and this Court granted the extension in its July 

6, 2018 Order. See Doc 16. Further, Plaintiffs accuse Defendants of causing delay by “refus[ing] 

to even exchange initial disclosures.” Doc. 27 at 1. That contention, however, ignores this Court’s 

August 2, 2018 Order staying discovery and initial disclosures pending the resolution of the 

Motion. See Doc. 26. Finally, while Plaintiffs allege that Defendants have caused delay by 

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“demand[in] a year-long discovery period,” they again ignore this Court’s scheduling order setting 

the discovery deadline of June 1, 2019, which was set after a thorough discussion with counsel for 

all parties. See Doc. 27 at 1; Doc. 20 at 3. 

Defendants’ requests have been reasonable, in the ordinary course of litigation, and in 

complete compliance with this Court’s orders and therefore should not serve as the basis upon 

which to deny the Motion. Defendants’ request for a stay of discovery is limited, and it is sought 

only until this Court rules on the Defendants’ Motion to Dismiss. 

Plaintiffs’ opposition fails to justify a denial of the limited relief sought in the Motion, and 

this Court should grant a stay of discovery pending its review of Defendants’ Motion to Dismiss. 

II. ARGUMENT

A. This Court Should Stay Discovery Because All of Plaintiffs’ Claims May Be 

Dismissed on Legal Determinations. 

Trial courts have broad discretion in staying discovery until preliminary, dispositive 

questions are determined, and, in making such decisions, courts should consider the facts and 

circumstances of each case. See, e.g., Landis v. North Am. Co., 299 U.S. 248, 254-55 (1936) (“The 

power to stay proceedings is incidental to the power inherent in every court to control the 

disposition of the causes on its docket with economy of time and effort for itself, for counsel, and 

for litigants. How this can be done calls for the exercise of judgment, which must weigh competing 

interests and maintain an even balance.”); Kareem v. JPMorgan Chase Bank, N.A., No. 15-4387, 

2016 U.S. App. LEXIS 23902 (6th Cir. 2016) (“A court has the discretion to stay discovery until 

questions that may dispose of the case, including a motion to dismiss for failure to state a claim, 

are determined.”); Hahn v. Star Bank, 190 F.3d 708, 719 (6th Cir. 1999) (“Trial courts have broad 

discretion and inherent power to stay discovery until preliminary questions that may dispose of the 

case are determined.”). In Hahn, the Sixth Circuit upheld a district court’s decision to stay 

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discovery pending resolution of the motion to dismiss and summary judgment on the basis that the 

party seeking discovery could not show that the facts they allegedly needed to discover bore any 

relevance to the dispositive legal issues in question. Id. at 719-20. “Because the information they 

were seeking would not have salvaged their claims, substantial prejudice did not result from the 

district court’s limitation on discovery.” Id. at 720. 

Stays on discovery “are appropriate where claims may be dismissed based on legal 

determinations that could not have been altered by any further discovery.” Gettings v. Bldg. 

Laborers Local 310 Fringe Benefits Fund, 349 F.3d 300, 304 (6th Cir. 2003) (quotations omitted); 

see also Muzquiz v. W.A. Foote Mem. Hosp., 70 F.3d 422, 430 (6th Cir. 1995). In Muzquiz, the 

plaintiff claimed that “he was prejudiced because his breach of contract claim, antitrust claim, and 

§ 1983 claim were dismissed without his being allowed ‘meaningful discovery.’” Id. The Sixth 

Circuit disagreed and upheld the district court’s limitations on discovery because dismissal of the 

plaintiff’s claims was based on “legal determinations that could not have been altered by any 

further discovery.” Id. 

As in Muzquiz, this Court should grant the Motion and enter an Order staying discovery 

until Defendants’ Motion to Dismiss is resolved. Shortly before Defendants filed the Motion (and 

before this Court even held the Rule 16 Scheduling Conference), Plaintiffs served extensive 

discovery requests. Yet Plaintiffs’ constitutional claims are legal. As fully briefed in Defendants’ 

Motion to Dismiss, Plaintiffs’ Complaint is legally deficient because as a matter of law (1) 

identification of a child’s sex at birth on birth certificates does not constitute governmentcompelled speech; (2) Ohio’s birth certificates are public records and, as such, cannot form the 

basis for an informational privacy claim; and (3) the challenged law is facially neutral and 

Plaintiffs have not plausibly alleged discriminatory intent. See Doc. 18 at 2. Plaintiffs’ claims 

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require little factual development (if any), hinge substantially on novel legal theories, and should 

be dismissed based solely on legal determinations. Fact discovery will not impact the Court’s 

decision on Defendants’ Motion to Dismiss. 

B. Staying Discovery Will Not Substantially Prejudice Plaintiffs. 

Plaintiffs’ argument that a stay will prolong their “very real and ongoing harm” also does 

not entitle them to the relief that they seek. See Doc. 27 at 6. Defendants are not currently seeking 

an extension of the discovery deadline of June 1, 2019. Rather, Defendants’ request is limited—

Defendants are only seeking a stay pending resolution of the Motion to Dismiss. No trial, 

discovery, or other substantive deadlines are impacted at this time. Plaintiffs’ claim that the timing 

of the Court’s ruling on the Motion to Stay could impact other case deadlines is pure speculation 

at this time and does not constitute prejudice. 

Further, the Southern District of Ohio has explained that the stage of the litigation and the 

nature of the pending motion should be considered when determining whether discovery should 

be stayed pending resolution of a dispositive motion. See Victoria’s Secret Stores Brand Mgmt., 

Inc. v. Bob’s Stores LLC, No. 2:13-CV-1261, 2014 U.S. Dist. LEXIS 34503, 2014 WL 1045994, 

at *2-3 (S.D. Ohio Mar. 17, 2014). In Victoria’s Secret, the defendant moved to dismiss for lack 

of personal jurisdiction and to stay all discovery pending resolution of its motion soon after the 

parties filed their Rule 26(f) Report. Id. at *2. The court granted the defendant’s motion to stay 

as to merits discovery finding that the fact that the defendant had filed its motion in the “very early 

stages of litigation” weighed in favor of staying merits discovery. Id. at *2-3. In considering the 

potential burden that staying merits discovery would have on the plaintiff, the court found that any 

burden would be slight because the stay in merits discovery would be relatively short. Id. at *3. 

The court thus concluded that the factors weighed in favor of a stay in merits discovery. Id.

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Plaintiffs’ argue that the timing of the motion to stay somehow warrants denying the 

motion. But the cases cited by Plaintiffs contradict that conclusion as the motions to stay in those 

instances were filed long after the preliminary pretrial conferences and well into the case schedule.

See DSM Desotech, Inc. v. Momentive Specialty Chems., Inc., No. 2:15-cv-70, 2015 U.S. Dist. 

LEXIS 158632 (S.D. Ohio Nov. 24, 2015) (denying a motion to stay where it was requested four 

months after the preliminary pretrial conference and where the magistrate recommended denying 

the motion to dismiss); United States ex rel. Am. Sys. Consulting, Inc., No. 2:08-CV-733, 2011 

U.S. Dist. LEXIS 47632 (S.D. Ohio May 2, 2011) (denying a motion to stay that was requested 

after the case had already been pending for over two and a half years).

As in Victoria’s Secret, Defendants have requested a stay of discovery very early in the 

litigation. Indeed, pursuant to this Court’s August 2, 2018 Order, Defendants have not even 

exchanged initial disclosures. Moreover, Defendants are only seeking a stay until the Court 

determines whether Plaintiffs’ legal claims will go forward. The fact that Defendants requested 

this limited stay early in the litigation weighs in favor of granting the stay and against prejudice. 

C. Societal Interests Weigh in Favor of Staying Discovery. 

Finally, granting a stay of discovery pending the Defendants’ Motion to Dismiss serves the 

interest of judicial economy and prevents the spending of public funds unnecessarily. See, e.g.,

Calhoun v. Botos, No. 5:08-CV-10051, 2008 U.S. Dist. LEXIS 48083, at *7 (E.D. Mich. June 23, 

2008) (granting a stay of discovery where compelling the defendants to respond to the plaintiff’s 

discovery requests before adjudication of the pending dispositive motion would have resulted in 

the “unnecessary use of public funds and public employee time”). 

Plaintiffs assert that “party resources are no more at stake here than in any other action.” 

See Doc. 27 at 5. That is not true. When a party is a government entity, as is obviously the case 

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here, the expenditure of public funds should be considered when deciding procedural issues. See, 

e.g., State v. Huffman, 9th Dist. Summit No. 15401, 1992 Ohio App. LEXIS 2914, *3 (June 3, 

1992) (finding that public policy favors joinder to conserve public funds and judicial economy); 

State v. Jones, 8th Dist. Cuyahoga No. 50867, 1987 Ohio App. LEXIS 6847, *7-8 (Feb. 12, 1987) 

(same). The “party resources” at stake in the present litigation are taxpayer, public funds. If 

Defendants’ Motion to Dismiss is granted, then any discovery conducted in the interim would have 

been unnecessary and a waste of taxpayer dollars. While Defendants are not minimizing the 

resources of private litigants, they are charged with safeguarding public resources and taxpayer 

funds. As such, Plaintiffs’ assertion that “party resources are at no more stake here than in any 

other action” should be rejected and does not justify denial of the Motion. 

III. CONCLUSION 

For the foregoing reasons, Defendants respectfully submit that their Motion to Stay 

Discovery should be granted. This Court should stay discovery until Defendants’ Motion to 

Dismiss (Doc. 18) is resolved. Such stay order should apply to all pending discovery requests, as 

well as the initial disclosures under Rule 26(a). 

Dated: August 24, 2018 Respectfully submitted, 

/s/ Kimberly Moses 

KIMBERLY MOSES (0029601) 

ALBERT J. LUCAS (0007676) 

JASON J. BLAKE (0087692) 

CALFEE, HALTER & GRISWOLD LLP 

1200 Huntington Center 

41 S. High Street 

Columbus, Ohio 43215 

Telephone: (614) 621-1500 

Fax: (614) 621-0100 

kmoses@calfee.com

alucas@calfee.com

jblake@calfee.com

Attorneys for Defendants

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CERTIFICATE OF SERVICE 

I hereby certify that on August 24, 2018, a copy of the foregoing was filed electronically. 

Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties 

indicated on the electronic filing receipt. Parties may access this filing through the Court’s system. 

/s/ Kimberly Moses

One of the Attorneys for Defendants 

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