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Brown v. Fisher

United States District Court, M.D. Pennsylvania

April 30, 2015

DONALD K. BROWN, II, Plaintiff
v.
JON D. FISHER, et al., Defendants.

MEMORANDUM

EDWIN M. KOSIK, District Judge.

I. Background

The pro se plaintiff, Donald K. Brown, II, commenced this action pursuant to 42 U.S.C. ยง 1983. Named as defendants are five (5) officials/employees at SCI-Smithfield, Plaintiff's former place of incarceration. He also names "Jane/John Does" as defendants. In the complaint, he sets forth allegations of inadequate medical/dental care in violation of the Eighth Amendment.

Service of the complaint was directed on July 9, 2014. (Doc. 6.) Waivers of Service were returned executed by the following four (4) defendants, William Dreibelbis, Jon D. Fisher, Gerald Hartman and Jay Whitesel. (Doc. 19.) On September 15, 2014, said defendants filed a motion to dismiss the complaint for failure to state a claim. This motion is presently ripe for consideration and will be addressed in a separate Memorandum. Also pending is a motion filed by these Defendants seeking to stay discovery pending resolution of their motion to dismiss. (Doc. 29.)

A Waiver of Service has not been returned by Joseph Kaczor. On April 27, 2015, Plaintiff sent correspondence to the court inquiring as to the status of service of the complaint on this defendant, and providing an address where he can be served. (Doc. 39.)

II. Discussion

A. Motion to stay discovery

Defendants seek to stay discovery pending disposition of their outstanding motion to dismiss the complaint. By doing so, Defendants state that unnecessary time and expense in responding to Plaintiff's outstanding discovery requests can be avoided if discovery is stayed in that resolution of their motion may dispose of some or all of the claims alleged in the complaint, and render the discovery requests moot and unnecessary. They further argue that no prejudice will result to Plaintiff in staying discovery until a resolution of the motion to dismiss is reached. Defendants' arguments are well taken in that if any of the claims survive, Defendants will then be required to provide appropriate responses to the requests relative to the claims still remaining. While Plaintiff asserts that Defendant Fisher is no longer employed at SCI-Smithfield, and therefore any delay in requiring him to respond to the requests prejudices him, Defendants' arguments in moving to dismiss Fisher are based on respondeat superior, as well as the fact that Fisher is a non-medical defendant.

The Court has broad discretion to stay discovery pending resolution of a dispositive motion. Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1560 (11th Cir. 1985). A stay is proper where the likelihood that a motion to dismiss may result in a narrowing or outright elimination of discovery outweighs any likely harm from the delay. 19th St. Baptist Church v. St. Peters Episcopal Church, 190 F.R.D. 345, 349 (E.D. Pa. 2000).

In Mann v. Brenner, 375 F.Appx. 232, 239-40 (3d Cir. 2010), the Third Circuit stated that staying discovery while evaluating a motion to dismiss may be appropriate in certain circumstances, such as when evaluating a motion to dismiss, where, if the motions is granted, discovery would be futile. The Court stated that:

A Motion to Dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and therefore need not be decided on its face without extensive factual development. See Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)(the purpose of Rule 12(b)(6) is to "streamline [] litigation by dispensing with needless discovery and factfinding); Chudsama v. Mazda Motor Corp., 12 F.3d 1353, 1367 (11th Cir. 1997)("A motion to dismiss based on failure to state a claim for relief should... be resolved before discovery begins."); Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987)(the idea that discovery should be permitted before deciding a motion to dismiss "is unsupported and defies common sense [because] the purpose of F.R.Civ.P. 12(b)(6) is to enable defendants to challenge the legal sufficiency of complaints without subjecting themselves to discovery."). Accordingly, the District Court did not abuse its discretion in staying discovery pending resolution of the motions to dismiss. Mann, 375 F.Appx. at 239-40.

For these reasons, the court will grant Defendants' request to stay discovery pending resolution of their motion to dismiss the complaint.

B. Service of complaint on Defendant Kaczor

There is no indication in the record that Defendant Kaczor has been served with a copy of the complaint. To effect service as expeditiously as possible, the Clerk of Court is specially appointed to serve a copy of the complaint, Notice of Lawsuit and Request to Waive Service of Summons (form AO 398), Waiver of the Service of Summons (form AO 399), and this order on Defendant Kaczor at the address provided by Plaintiff in his correspondence of April 27, 2015. The address provided by Plaintiff is "2606 Broad Avenue, Altoona, Pennsylvania, 16601." (Doc. 39 at 2.) The waiver requests shall inform Defendant both of the consequences of compliance and of failure to comply with the requests. Defendant is permitted 30 days from the date the waiver requests are sent (60 days if addressed outside any judicial district of the United States) to return the signed waivers or electronically file them in the court's Electronic Case Filing (ECF) system. If a signed waiver is ...


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