IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

KENNETH ENGLAND, 

Plaintiff, 

V. 

UNITED AIRLINES, INC., 

Defendant. 

Civil Action No. 1:20-cv-02877 

Judge Martha M. Pacold 

Magistrate Sheila M. Finnegan 

DEFENDANT UNITED AIRLINES, INC.’S OPPOSITION 

TO PLAINTIFF’S MOTION FOR LEAVE TO SERVE DISCOVERY 

Plaintiff Kenneth England (“England”) has not demonstrated good cause to begin 

discovery at this initial stage of the litigation, prior to the Court’s disposition of the motion to 

dismiss filed by Defendant United Airlines, Inc. (“United”). England’s motion is simply a veiled 

attempt—his third—to urge the Court to issue a decision on United’s motion to dismiss, despite 

the Court’s repeated assurances that it has that motion under advisement. See Dkt. Nos. 20, 21, 

28, 29. That is not an appropriate basis on which to initiate discovery, and the Court should deny 

England’s motion. 

United’s motion to dismiss presents the threshold legal question of whether England can 

bring a third-party beneficiary claim to enforce the Payroll Support Program (“PSP”) Agreement 

between United and the U.S. Department of the Treasury, despite Congress’s decision not to 

create a private right of action for enforcement of this portion of the CARES Act. As such, 

United’s motion, if granted, would be thoroughly dispositive of his claims and would obviate the 

need for any discovery in this matter. 

Protracted discovery is the “bane of modern litigation.” Rosetto v. Pabst Brewing Co., 

Inc., 217 F.3d 539, 542 (7th Cir. 2000). The Court has broad discretion to control the sequence 

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of discovery. See Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002). 

Consistent with this authority, courts in the Seventh Circuit routinely limit or postpone discovery 

during the pendency of a motion to dismiss, particularly where, as here, the motion could resolve 

the case in its entirety, thus avoiding the time, effort, and cost associated with unnecessary 

discovery. See, e.g., Liggins v. Reicks, No. 3:19-cv-50303, 2021 WL 2853359, at *1-3 (N.D. Ill. 

July 8, 2021); Bilal v. Wolf, No. 06 C 6978, 2007 WL 1687253, at *1 (N.D. Ill. June 6, 2007). 

Moreover, courts often deem requests for early discovery, like England’s here, inappropriate 

where the discovery will not advance the issues in the pending motion. See, e.g., Duneland 

Dialysis LLC v. Anthem Ins. Cos., Inc., No. 4:09-cv-36, 2010 WL 1418392, at *4 (N.D. Ind. Apr. 

6, 2010) (granting motion to stay discovery pending resolution of defendant’s motion to dismiss 

where motion involved potentially dispositive threshold issue and plaintiffs failed to show 

additional discovery was needed to oppose the fully briefed motion). 

As England acknowledges, he must show good cause to justify his request for discovery 

here. See Plaintiff’s Motion for Leave to Serve Discovery (Dkt. 30), ¶ 4. England has not come 

close to meeting that standard. Rather, he simply makes unsupported and conclusory claims that 

delaying discovery could create a “greater ... risk of misplaced documents, fading witness 

memories, or inability to locate relevant witnesses,” and, with respect to unspecified discovery 

he intends to take against unidentified third parties, “may prejudice Plaintiff’s ability to 

prosecute his claims.” Id. at ¶ 5. Tellingly, England does not identify any witnesses, 

information, or documents that he believes will become unavailable if he is not permitted to 

initiate discovery at this point, after not seeking to do so at all during the two years United’s 

motion to dismiss has been pending, or why those purported risks exist now but did not a year 

ago, or even six months ago. Nor does England identify the nature or scope of his intended 

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discovery or explain how it would aid the parties or the Court in consideration of United’s 

motion to dismiss. England simply has not satisfied his burden to show he would be prejudiced 

by waiting until after the Court’s impending decision on United’s motion. See Duneland 

Dialysis LLC, 2010 WL 1418392, at *3-4. 

None of the cases Plaintiff cites support permitting discovery under the circumstances 

present here either. For example, in Ibarra v. City of Chicago, 816 F. Supp. 2d 541 (N.D. Ill. 

2011), the court granted in part a motion for expedited discovery only after denying the 

defendant’s motion to dismiss. Id. at 554. Even then, the court allowed only two interrogatories 

that were narrowly tailored to allow the plaintiff to determine the identity of the proper parties to 

the action, and rejected the plaintiff’s request to serve broader discovery seeking information 

beyond the identity of the Doe defendants. Id. at 555. In In re Clearview AI, Inc., Consumer 

Priv. Litig., No. 21 C 135, 2021 WL 5862494 (N.D. Ill. May 6, 2021), the plaintiff’s motion for 

expedited discovery arose in the context of its motion for preliminary injunction, and the court 

held that the plaintiffs failed to meet their burden of demonstrating the reasonableness of the 

requested discovery or how it would aid the court in assessing that motion. Id. at *2-3. Finally, 

Plaintiff’s reliance on Matthews v. U.S. Shoe Corp., 176 F.R.D. 442 (W.D.N.Y. 1997) is 

misplaced, as Matthews involved a pro se plaintiff’s repeated failure to respond to discovery 

requests and prosecute her case, which ultimately warranted dismissal of her complaint with 

prejudice. Id. at 444-45. 

In sum, England has failed to show good cause for initiating discovery prior to a decision 

on United’s potentially dispositive motion to dismiss. This Court, therefore, should deny his 

motion. 

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Dated: September 8, 2022 Respectfully submitted, 

s/Douglas W. Hall 

Douglas W. Hall (pro hac vice) 

dwhall@jonesday.com 

Donald J. Munro (pro hac vice) 

dmunro@jonesday.com 

JONES DAY 

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001.2113 

Telephone: +1.202.879.3939 

Facsimile: +1.202.626.1700 

Ann-Marie Woods (6321757) 

awoods@jonesday.com 

JONES DAY 

77 West Wacker 

Chicago, IL 60601.1692 

Telephone: (312) 782-3939 

Facsimile: (312) 782-8585 

Attorneys for Defendant United Airlines, Inc. 

 

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CERTIFICATE OF SERVICE

 I hereby certify that on September 8, 2022, I electronically filed the foregoing Defendant 

United Airlines, Inc.’s Opposition to Plaintiff’s Motion for Leave to Serve Discovery with the 

Clerk of Court using the CM/ECF filing system, which will send notification of such filing to the 

attorneys of record at their email addresses on file with the Court. 

s/ Ann-Marie Woods 

One of the Attorneys for Defendant United 

Airlines, Inc. 

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