United States District Court, W.D. Pennsylvania
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE
before the Court is a Joint Motion to Continue Stay and
Incorporated Citations to Law filed by Defendants Tiversa
Holding Corp. ("Tiversa") and Robert J. Boback
("Boback"). ECF No. 298. Also before the Court is
the Opposition to Defendants' Joint Motion to Continue
Stay filed by Plaintiff LabMD, Inc. ("LabMD"). ECF
instant iteration of the labyrinthine litigation between
these parties began in January 2015, with a ten-count
Complaint against thirteen Defendants. ECF No. 1. Following
extensive litigation of three Motions to Dismiss as to two
Complaints, only part of one Count remains. ECF No. 185. The
sole remaining claim alleges defamation per se as to specific
Defamatory Statements 13 and 16. Id.
August 29, 2017, this Court conducted an initial case
management conference that lasted one hour and eighteen
minutes. During the conference a multitude of issues were
raised by both parties and addressed by the Court. ECF No.
246. Following the conference, a case management/scheduling
order was issued. ECF No. 247. In the order, the Court
permitted six months of discovery and set a discovery
deadline of January 29, 2018. Id.
the August 29, 2017, case management conference, the Court
issued an order referring this case to ADR in the form of
mediation before Attorney Carole Katz to be concluded by
October 29, 2017. ECF No. 248.
October 12, 2017, this Court conducted a status conference
with counsel at which time a number of issues were raised by
counsel and discussed with the Court including: e-discovery
and search terms/custodians, the production of insurance
information, a consent order and issues relative to best
preparing the case for a successful mediation. ECF No. 285.
time during the Court conferences on August 29, 2017, or
October 12, 2017, did LabMD or its counsel ever complain to
this Court that there had been any discovery misconduct or
abuse by Defendants or their counsel, nor did LabMD ever
inform the Court that it intended to file any claims against
Defendants and their respective counsel.
October 20, 2017, a mere eight days after the October 12
status conference, LabMD filed yet another new lawsuit
against Tiversa and Boback, docketed at Civil Action No.
17-1365 ("the New Case"), and named Tiversa and
Boback's legal counsel in the instant action as
defendants. Specifically, LabMD named Reed Smith LLP and
Jarrod D. Shaw, Esquire and Clark Hill PLC and Robert J.
Ridge, Esquire as defendants. In the New Case, LabMD alleges
"abusive litigation and wrongful use of civil
proceedings" in two other lawsuits involving theses
parties: (1) an ongoing (but stayed) state defamation action
in the Court of Common Pleas of Allegheny County; and (2) a
federal defamation action that was dismissed over three years
ago on November 4, 2014. ECF No. 288-1. Inexplicably, the
Complaint in the New Case contains allegations concerning
discovery responses the instant case. Id., ¶¶
October 23, 2017, upon learning of the New Case, Tiversa
filed an Emergency Motion for a Telephonic Conference. ECF
No. 288. A telephone conference was held that day, ECF No.
293, following which the Court granted Defendants' Joint
Motion to Postpone ADR, ECF Nos. 290 and 294, and
Defendants' Joint Motion to Stay, ECF Nos. 292 and 295.
This case was stayed through December 4, 2017. ECF No.
December 4, 2017, this Court held a status conference during
which Defendants informed the Court that they, and their
counsel, intend to file motions to dismiss in the New Case.
ECF No. 296 at 2. Defense counsel also expressed their
serious concerns that the filing of the New Case was a
purposeful attempt by LabMD and its counsel to interfere with
the legal representation of Tiversa and Boback by the law
firms of Reed Smith and Clark Hill and their attorneys.
instant Motion, Defendants request a stay of this case
pending the Court's ruling on the anticipated motions to
dismiss filed on behalf of their counsel in the New Case. ECF
No. 298. Defendants cite the significant effect on the
instant litigation that the rulings on the motions to dismiss
will have, the relatively short length of time of the
proposed stay and the lack of prejudice to LabMD therefrom.
Id. Defendants also cite the difficulty of
proceeding with discovery in this case while their responses
to prior discovery are litigated in the New Case. Id., In a
short three paragraph response in opposition to the instant
Motion, LabMD cites excerpts from a 2014 conference in the
federal defamation case and baldly asserts that "[t]here
is no reason for extending the stay and to do so will only
serve to postpone the ultimate resolution of this
action." ECF No. 299.
Court finds LabMD's concerns about the delay in
resolution of this case to be disingenuous, at best, given
the timing of the filing of the New Case and its reliance on
alleged conduct in 2014. Significantly, the chilling effect
that the New Case may have on Defendants' ability to
defend instant case is clear to this Court.
this Court finds that the length of stay requested is
reasonable, that Defendants and their counsel will suffer
substantial hardship and inequity if required to move forward
with discovery in this case at this time and that good cause
has been shown. As such, the instant case will remain stayed.
NOW, this 20th day of December, 2017, Defendants' Joint
Motion to Continue Stay, ECF No. 298, is GRANTED. This case
is STAYED in its entirety until further order of court
pending ruling on the motions to dismiss in the New Case.
While the case is stayed, no pending or new party or
third-party discovery, subpoenas, ...