1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

Denise Robinson and David Stigall, )

individually and on behalf of all others )

similarly situated, )

)

Plaintiffs, )

) Case No. 20 CV 50288

v. )

) Magistrate Judge Lisa A. Jensen

Walgreen Co., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Defendant Walgreen Co. has moved to stay discovery pursuant to Federal Rule of Civil 

Procedure 26(c)(1) pending a ruling on their motion to dismiss. Dkt. 54. For the following reasons, 

Defendant’s motion to stay discovery is granted in part and denied in part.

I. BACKGROUND

Plaintiffs filed a class action complaint on August 4, 2020 alleging that the labeling and 

marketing of Defendant’s over-the-counter pain reliver acetaminophen product is deceptive and 

violates the consumer protection statutes of Illinois and Texas and unjustly enriched Defendant. In 

October 2020, Defendant moved for a temporary stay of proceedings pending an identical class 

action filed in the Northern District of California, Eidmann v. Walgreen Co., Case No. 5:20-cv04805. Dkt. 32. The Court granted the unopposed motion in November 2020. Dkt. 38. In March 

2021, the parties filed a status report informing the Court that Eidmann had been dismissed in its 

entirety with prejudice1 and that Defendant intended to file a motion to dismiss in the instant 

action. Dkt. 40.

On April 12, 2021, Defendant filed a motion to dismiss the complaint. Dkts. 44, 45. On 

April 27, 2021, the parties filed a joint status report. Dkt. 48. In the status report, Plaintiffs 

indicated that they intended to file an amended complaint and sought to proceed with discovery. 

Defendant stated that they would file another motion to dismiss the amended complaint and that 

discovery should be stayed pending a ruling on that motion. 

Plaintiffs filed the amended complaint on May 3, 2021. Dkt. 50. The Court held a 

telephonic status hearing on May 6, 2021 and set briefing schedules for Defendant’s motion to 

dismiss the amended complaint and Defendant’s motion to stay discovery. Dkt. 51. Defendant 

filed the motion to dismiss in accordance with the Court’s briefing schedule on May 17, 2021. 

1 See Eidmann v. Walgreen Co., No. 20-cv-04805-EJD, 2021 WL 764121 (N.D. Cal. Feb. 26, 2021).

Case: 3:20-cv-50288 Document #: 56 Filed: 06/16/21 Page 1 of 5 PageID #:376
2

Dkts. 52, 53. Defendant now moves to stay discovery pending ruling on its motion to dismiss.

Plaintiffs object to the stay. No discovery has occurred to date.

II. DISCUSSION

District courts have broad discretion in managing discovery. Crawford–El v. Britton, 523 

U.S. 574, 598-99 (1998); Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002). 

In accordance with Federal Rule of Civil Procedure 26(c), a court may, for good cause, limit the 

scope of discovery or control its sequence to “protect a party or person from annoyance, 

embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1); see Crawford–

El, 523 U.S. at 599; Tamburo v. Dworkin, No. 04 C 3317, 2010 WL 4867346, at *1 (N.D. Ill. Nov. 

17, 2010).

There is no requirement that discovery cease during the pendency of a motion to dismiss. 

See SK Hand Tool Corp. v. Dresser Industries, Inc., 852 F.2d 936, 945 (7th Cir. 1988); In re 

Sulfuric Acid Antitrust Litigation, 231 F.R.D. 331, 336 (N.D. Ill. 2005). In determining whether to 

grant a stay, a court may consider the following factors: (1) whether a stay will unduly prejudice 

or tactically disadvantage the non-moving party, (2) whether a stay will simplify the issues in 

question and streamline the trial, and (3) whether a stay will reduce the burden of litigation on the 

parties and on the court. Sadler as Tr. of Larry R. Sadler Irrevocable Tr. v. Retail Properties of 

Am., Inc., No. 12 C 5882, 2013 WL 12333447, at *1 (N.D. Ill. Sept. 27, 2013). The party seeking 

a stay bears the burden of proving that the court should exercise its discretion in staying the case. 

Ind. State Police Pension Trust v. Chrysler LLC, 556 U.S. 960, 961 (2009).

A. Prejudice to Plaintiffs

Defendant argues that a stay would not prejudice or tactically disadvantage Plaintiffs for 

three reasons. First, Defendant argues the case is still in its early stages and the first amended 

complaint has only just been filed. Def.’s Mot. at 7, Dkt. 54. Second, Defendant asserts that there 

is no risk that any information will be lost during the length of the stay. Id. at 8. Third, Defendant 

contends Plaintiffs would suffer no prejudice because they do not purport to need discovery to 

respond to the motion to dismiss. Id.

Plaintiffs argue in response that, if the motion to stay is granted, they will not be able to 

obtain even preliminary written discovery responses until the lawsuit is over one year old and, 

consequently, could not “advance the lawsuit in any meaningful way.” Pl.s’ Resp. at 4, Dkt. 55.

Plaintiffs contend that they will suffer a tactical disadvantage as a result. Id. at 5.

While a simple delay alone would not necessarily cause undue prejudice or be tactically 

disadvantageous,

2 there is evidence that a second stay in this case would be prejudicial. Defendant 

filed the first motion to stay just two months into the case and Plaintiffs agreed to the stay “for the 

sake of convenience” despite disagreeing with the merits of Defendant’s request. See Dkt. 35. 

Now, the case has been pending without any progress for nearly a year, so the Court disagrees with 

Defendant’s assertion that the case is still in its “early stages.” Given that Defendant has already 

2 See Medline Indus., Inc. v. C.R. Bard, Inc., No. 17 C 7216, 2019 WL 10948865, at *2 (N.D. Ill. Sept. 

10, 2019).

Case: 3:20-cv-50288 Document #: 56 Filed: 06/16/21 Page 2 of 5 PageID #:377
3

benefitted from a stay, the Court acknowledges that another stay extending the case even further 

would be prejudicial to Plaintiffs’ ability to develop its case. See CMG Worldwide Inc. v. Adidas 

Am., Inc., No. 1:17-CV-2356-RLM-DML, 2018 WL 7140117, at *3 (S.D. Ind. Sept. 26, 2018)

(“First, the court considers the fact that, in effect, [the defendant] has already had the benefit of a 

lengthy stay, because this case was filed well over a year ago. Second, a stay that extends even 

further could prejudice the plaintiff's ability to develop its case, because the passage of time tends 

to erode proof of claims and damages.”). Defendant has failed to show that a second stay would 

not prejudice or tactically disadvantage Plaintiffs, so this factor weighs in favor of a stay of 

discovery.

The U.S. Supreme Court has stated that, “if there is even a fair possibility that the stay ... 

will work damage to some one else,” the party seeking the stay “must make out a clear case of 

hardship or inequity in being required to go forward.” Landis v. N. Am. Co., 299 U.S. 248, 254

(1936). As demonstrated in more detail below, Defendant has not made a clear case of hardship or 

inequity in being required to move forward with discovery.

B. Simplifying the issues 

Defendant also argues that the Court should stay discovery because the motion to dismiss 

is potentially dispositive of the entire case. Def.’s Mot. at 5, Dkt. 54. In support of this argument, 

Defendant points to the Eidmann case where, as noted above, another federal court dismissed the 

case in its entirety. Defendant asserts that Eidmann presented facts and issues identical to those of

the instant case and that the motion to dismiss in Eidmann raised the same arguments presented in 

the motion to dismiss filed in this action. Given the identical issues and allegations, Defendant 

contends that this action has the potential to similarly dispose of the entire litigation.3 Id. 

Plaintiffs respond that Defendant’s misplaced assumption that the pending motion to 

dismiss will resolve the case in its entirety ignores four recent court decisions finding that similar 

claims were sufficient to survive a motion to dismiss. Pl.s’ Resp. at 6-7, Dkt. 55. Plaintiffs also 

argue that, even if the motion to dismiss is successful, dismissing the case without an opportunity 

to file an amended complaint is rare and, through discovery, Plaintiffs could incorporate new facts 

into a future amended complaint. Id. at 7.

The Court finds that a discussion of the merits of the pending motion to dismiss to evaluate 

whether the stay should be granted would be inappropriate. Allowing a stay of discovery 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, effectively circumventing the procedures for the 

resolution of such a motion. Witz v. Great Lakes Educ. Loan Servs., Inc., No. 19-CV-06715, 2020 

WL 8254382, at *1 (N.D. Ill. July 30, 2020). Courts frequently decline to engage in this sort of 

analysis when deciding a motion to stay discovery. See New England Carpenters Health & Welfare 

Fund v. Abbott Lab'ys, No. 12 C 1662, 2013 WL 690613, at *2 (N.D. Ill. Feb. 20, 2013); Tamburo, 

3 Defendant also points to a “near-identical class action,” Harris v. Topco Assocs., LLC, Case No. 20-cv04355, (N.D. Ill.), where the court decided to grant a motion to stay discovery pending ruling on the 

motion to dismiss and, subsequently, granted the motion to dismiss. However, in taking a closer look at 

that case, Defendant omits a critical piece of information: the motion to stay in that case was agreed. This 

is an important distinguishing fact from this case, where the motion to stay is contested.

Case: 3:20-cv-50288 Document #: 56 Filed: 06/16/21 Page 3 of 5 PageID #:378
4

2010 WL 4867346, at *2; Niederhoffer Intermarket Fund, L.P. v. Chicago Mercantile Exch., No. 

99 C 3223, 1999 WL 731773, at *1 (N.D. Ill. Aug. 31, 1999); Gray v. First Winthrop Corp., 133 

F.R.D. 39, 40 (N.D. Cal. 1990). Because Defendant has failed to show how a stay would simplify 

the issues in the case, this factor weighs against a stay of discovery.

C. Burden of discovery 

Defendant argues that a stay would reduce the burden of litigation on the parties and the 

Court. Def.’s Mot. at 6, Dkt. 54. Defendant contends that this case is similar to Coss v. Playtex 

Prod., LLC, No. 08 C 50222, 2009 WL 1455358 (N.D. Ill. May 21, 2009), where the court found

that the case was complex and would entail burdensome and costly discovery and, therefore, a stay 

of discovery was warranted. Id. Defendant also vaguely asserts that the claims against it are broad 

and include claims on behalf of a nationwide class, which necessarily involves a broad scope of 

discovery. Id. at 7. 

Plaintiffs respond that Defendant’s vague claims that it will be burdened by discovery are 

unsupported by any evidence or supporting declaration. Pl.s’ Resp. at 6-7, Dkt. 55. Plaintiffs also 

point out: “Defendant admits that, due to its involvement in similar cases, it is aware of the 

discovery issues involved in this case, and indeed has already begun retaining pertinent 

documents.” Id.

The Court recognizes that class actions have the potential to entail burdensome discovery. 

See Coss, LLC, 2009 WL 1455358, at *4; Ashley W. v. Holcomb, No. 319CV00129RLYMPB, 

2019 WL 9673894, at *2 (S.D. Ind. Oct. 31, 2019); Bodnar v. John Hancock Funds, Inc., No. 2:06 

cv 87, 2007 WL 1577914, at *3 (N.D. Ind. May 30, 2007); Sprague v. Brook, 149 F.R.D. 575, 578

(N.D. Ill. 1993). However, Defendant has not provided any estimate of the cost associated with 

responding to the discovery, nor do they provide an affidavit or other support for their allegation 

of undue burden. Courts in this circuit find that broadly decrying the time and expense that is 

expected to be associated with responding to discovery, without any substantiation, does not 

establish good cause for staying discovery. See Harper v. Cent. Wire, Inc., No. 19 CV 50287, 2020 

WL 5230746, at *4 (N.D. Ill. Sept. 2, 2020); U.S. ex rel. Robinson v. Indiana Univ. Health Inc., 

No. 1:13-CV-02009-TWP, 2015 WL 3961221, at *5 (S.D. Ind. June 30, 2015); Castrillon v. St. 

Vincent Hosp. & Health Care Ctr., Inc., No. 1:11-CV-00430-WTL, 2011 WL 4538089, at *2 (S.D. 

Ind. Sept. 29, 2011).

Given this tension, the Court is inclined to order focused discovery in this case pending a 

ruling on the motion to dismiss. See Coss, 2009 WL 1455358, at *4-5 (granting a general stay but 

ordering very focused discovery that the defendant agreed would not be burdensome). 

Accordingly, the motion to stay discovery is granted in part and denied in part.

In Plaintiffs’ response brief, they not only request that the Court enter an order denying the 

motion to stay, but also requiring Defendant to respond to Plaintiffs’ discovery requests. The Court 

declines to order Defendant to respond to Plaintiffs’ discovery requests because, contrary to 

Plaintiffs’ assertion, there is no evidence that the parties have met and conferred in accordance 

with Federal Rule of Civil Procedure 26(f)(2) and no case management order has been entered by 

this Court. By June 30, 2021, the parties shall meet and confer regarding a proposed joint case 

Case: 3:20-cv-50288 Document #: 56 Filed: 06/16/21 Page 4 of 5 PageID #:379
5

management order. The parties shall consider the phased approach proposed in Plaintiffs’ motion 

as well as other proposals for phased or limited discovery that can proceed during the pendency of 

the motion to dismiss and be prepared to discuss such proposals with the Court at a status hearing 

on July 1, 2021 at 9:00 AM. 

III. CONCLUSION

For the foregoing reasons, Defendant’s motion to stay discovery is granted in part and 

denied in part.

Date: June 16, 2021 By: _________________________

Lisa A. Jensen

United States Magistrate Judge

Case: 3:20-cv-50288 Document #: 56 Filed: 06/16/21 Page 5 of 5 PageID #:380