# XIRUM v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE)

> District Court, S.D. Indiana · September 13, 2023

URL: https://www.frixlaw.com/law-library/cases/10170469

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** September 13, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MARIBEL XIRUM, et al. )
)
Plaintiffs, )
)
v. ) No. 1:22-cv-00801-TWP-KMB
)
U.S. IMMIGRATION AND CUSTOMS )
ENFORCEMENT (ICE), et al. )
)
Defendants. )
)

ORDER ON CLAY COUNTY DEFENDANTS'
RENEWED MOTION TO STAY DISCOVERY

Presently pending before the Court is a Renewed Motion to Stay Discovery filed by the
Clay County Defendants.1 [Dkt. 136.] Plaintiffs Maribel Xirum, Javier Jaimes, and Baijebo Toe
("Plaintiffs") oppose the Clay County Defendants' discovery stay request, [dkt. 147], and the Clay
County Defendants filed a reply brief in further support of it, [dkt. 156]. The Federal Defendants2
have not officially joined the Clay County Defendants' Renewed Motion to Stay, but they have

1 "Clay County Defendants" refers to Defendants Clay County, Indiana, Clay County Council, Clay County Sheriff's
Office, Paul B. Harden (under the title of Clay County Sheriff), Jackie Mitchell (under the title of Clay County Council
Member), Jason Britton (under the title of Clay County Council Member), Jason Thomas (under the title of Clay
County Council Member), Larry J. Moss (under the title of Clay County Council Member), John Nicoson (under the
title of Clay County Council Member), David Amerman (under the title of Clay County Council Member), Patricia
Heffner (under the title of Clay County Council Member), Bryan Allender (under the title of Clay County
Commissioner), Marty Heffner (under the title of Clay County Commissioner), Paul Sinders (under the title of
President of the Clay County Board of Commissioner), Elizabeth Hughett (under the title of Clay County Sergeants
and ICE Contract Coordinator), David Parker (under the title of Clay County Sergeants and ICE Contract
Coordinator), Jase Glassburn (under the title of Clay County Sergeants and ICE Contract Coordinator), Jennifer M.
Flatner (under the title of Clay County Auditor), and Debra James (under the title of Clay County Treasurer). [Dkt.
128 at 4 n.3.]
2 "Federal Defendants" refers to Defendants U.S. Immigration and Customs Enforcement (ICE), U.S. Department of
Homeland Security (DHS), Alejandro Mayorkas (under the title of Secretary of DHS), Tae Johnson (under the title of
Acting Director of ICE), Monica S. Burke (under the title of ICE Acting Assistant Director of Custody Management),
Ricardo A. Wong (under the title of ICE Deputy Assistant Director, Oversight Compliance and Acquisition Division),
Sylvie Renda (under the title of Acting Field Office Director of the ICE Chicago Field Office), Travis Graham (under
the title of ICE Officer), Angelina Ramos (under the title of ICE Officer), and Virginia Sutter (under the title of ICE
Officer). [Dkt. 128 at 4 n.2.]
represented that they "consent to and agree with" the request. [Dkt. 138 at 16.] After reviewing
the history of this case, the Parties' briefs on the issues, and the applicable standard, the Court
hereby GRANTS the Clay County Defendants' request, [dkt. 136], and stays merits discovery on
Plaintiffs' claims against the Clay County Defendants until there is a ruling on the Clay County

Defendants' Motion to Dismiss, [dkt. 150].
I. RELEVANT BACKGROUND
To provide context for the Court's ruling on the pending motion, the Court will briefly
summarize the Plaintiffs' current allegations against various Defendants as well as this case's
procedural history. Nothing set forth herein constitutes findings by the Court; rather, this limited
background simply provides context for the issues presented by the Parties in the pending motion.
Plaintiffs and proposed class members are noncitizens who were detained by U.S.
Immigration and Customs Enforcement ("ICE") at the Clay County Jail in Brazil, Indiana (the
“Jail”). [Dkt. 129 at 5.] Plaintiffs allege that they were detained by ICE at the Jail pursuant to an
agreement (the "Agreement") between the U.S. Marshals Service, ICE, and Clay County. [Dkt.

129 at 5.] Plaintiffs claim that under the Agreement, ICE pays Clay County more than $1,000,000
per year to detain dozens of noncitizens and that by federal law, "the federal funds paid to the
County must be used only for expenses related to the care of people detained by ICE at the Jail,
including for basic necessities like sanitation, medical care, food, and personal hygiene." [Dkt.
129 at 6.] Plaintiffs' Amended Complaint alleges that Clay County is diverting the funds away
from those expenses, such that "noncitizens like Plaintiffs suffer in grossly inadequate conditions
at the Jail" as a result. [Dkt. 129 at 7.] Plaintiffs claim that ICE knows that Clay County is
allegedly misappropriating detention payments. [Dkt. 129 at 6.]
Plaintiffs filed this case on April 25, 2022. [Dkt. at 1.] That same day, Plaintiffs filed a
Motion to Certify Class. [Dkt. 3.] On July 15, 2023, the Clay County Defendants filed a Motion
to Dismiss Plaintiffs' Complaint. [Dkt. 56.] That same day, the Clay County Defendants filed a
Motion to Stay Discovery, Stay Class Certification Discovery, and Stay Class Certification

Briefing. [Dkt. 58.] The Federal Defendants also filed a Motion to Dismiss Plaintiffs' Complaint,
[dkt. 60], as well as a Notice of Consent to Motion to Stay, [dkt. 65].
The Defendants' stay request was fully briefed, and it was ultimately granted in part and
denied in part by Magistrate Judge Debra McVicker Lynch, [dkt. 74], who was assigned to this
case until her well-deserved retirement from the bench last fall, [dkt. 76]. Judge Lynch granted
the Defendants' request to stay merits discovery for various reasons, including that if the
Defendants' motions were granted in full, all of Plaintiffs' claims would be dismissed; that some
of Plaintiffs' claims asserted a "somewhat novel theory" and a "novel approach;" and that it was
not clear that the kinds of merits discovery Plaintiffs sought would be compromised by the passage
of time because of Plaintiffs' knowledge of their own experiences, the contractual nature of the

claims, and the financial records that should continue to exist. [Dkt. 74 at 8-10.] Judge Lynch
did, however, deny the Defendants' stay request regarding class certification discovery and briefing
because class certification "should be addressed as soon as possible . . . ." [Dkt. 74 at 10.]
Accordingly, the Parties were permitted to engage in class certification related discovery, as long
as it was proportional to the needs of the class certification issues.3 [Dkt. 74 at 10-12.]
On March 29, 2023, the Court granted in part and denied in part the Defendants' Motions
to Dismiss in a lengthy and detailed opinion. [Dkt. 116.] At a high level, the Court denied ICE's

3 Plaintiffs objected to Judge Lynch's Order on the Motion to Stay Discovery and Class Certification Briefing, [dkt.
79]; however, Plaintiffs' objection was ultimately rendered moot with the consent of all Parties, [dkt. 124], after the
Court ruled on the various motions to dismiss and the discovery stay expired on its own terms.
request to dismiss certain aspects of Count I but granted the pending motions regarding the
remaining claims against the other Defendants. [Dkt. 116 at 45-46.] The Court allowed Plaintiffs
thirty (30) days to file an amended complaint with respect to any viable claims against the Clay
County Defendants, "if such claims exist." [Dkt. 116 at 45-46.] Plaintiffs received an extension

of that deadline and ultimately filed their Amended Complaint on May 19, 2023. [Dkt. 129.]
Plaintiffs' Amended Complaint asserts six claims—specifically, it asserts four claims
against the Federal Defendants stemming from various alleged violations of the Administrative
Procedure Act ("APA") and two claims against the Clay County Defendants for allegedly violating
their obligations to take care of detained noncitizens at the Jail and to use federal funds only for
reasonable, allowable, and allocable costs related to the detention of noncitizens at the Jail. [Dkt.
129; see also dkt. 138 at 3-4 (Plaintiffs' Statement of Claims).] Plaintiffs seek declaratory and
injunctive relief on behalf of a proposed class of noncitizens who are or will be detained by ICE
at the Jail. [Dkt. 129; dkt. 138 at 2.]
The undersigned Magistrate Judge has now held two status conferences in this case, with

a third one scheduled for next week. [Dkts. 124; 145; 157.] After the first conference, counsel
was ordered to meet and confer and file a joint proposed case management plan. [Dkt. 124 at 1.]
To the extent that counsel could not agree about any aspect of a proposed case management plan,
they were instructed to include the basis for that disagreement along with each Party's position.
[Dkt. 124 at 1.]
On June 14, 2023, the Clay County Defendants filed a Renewed Motion to Stay Discovery.
[Dkt. 136.] The Parties filed their Joint Proposed Case Management Plan two days later, [dkt.
138], which the undersigned Magistrate Judge discussed with them at a status conference on June
21, 2023, [dkt. 145]. The Renewed Motion to Stay and the discussion at the status conference
made it clear that the Clay County Defendants would be filing another motion to dismiss and that
Plaintiffs and the Clay County Defendants disagreed about whether merits discovery should be
conducted while that motion remains pending. While the Federal Defendants have not officially
joined the Clay County Defendants' Renewed Motion to Stay, they have represented that they

consent to and agree with the request. [Dkt. 138 at 16.]
On June 30, 2023, the Clay County Defendants filed their Motion to Dismiss Plaintiffs'
Amended Complaint. [Dkt. 150.] Plaintiffs oppose that motion, [dkt. 168], and the Clay County
Defendants' reply brief is due on September 21, 2023, [dkt. 163]. The Parties are also currently
briefing Plaintiffs' Renewed Motion to Certify Class, [dkt. 158], which Defendants oppose, [dkts.
166; 167], and that motion will be fully briefed by September 15, 2023, [dkt. 161].
The Federal Defendants have filed a Partial Motion to Dismiss as to Counts II, III, and IV
of Plaintiffs' Amended Complaint. [Dkt. 152.] Plaintiffs oppose that motion, [dkt. 168], and the
Federal Defendants' reply brief is due by September 21, 2023, [dkt. 163]. The Federal Defendants
do not move to dismiss Count I of Plaintiffs' Amended Complaint, and pursuant to a prior

agreement between Plaintiffs and the Federal Defendants, the Federal Defendants should have
already produced the administrative record related to Count I. [Dkt. 127.]
II. LEGAL STANDARD
District courts have "extremely broad discretion in controlling discovery." Jones v. City of
Elkhart, Ind., 737 F.3d 1107, 1115 (7th Cir. 2013). A stay of discovery may be ordered when
good cause exists, and the party seeking the stay "bears the burden of proof to show that the Court
should exercise its discretion in staying the case." United States ex rel. Robinson v. Ind. Univ.
Health, Inc., 2015 WL 3961221, at *1 (S.D. Ind. June 30, 2015). A court will evaluate three factors
to determine if good cause for a stay exists: (1) "the prejudice or tactical disadvantage to the non-
moving party;" (2) "whether or not issues will be simplified . . . ;" and (3) "whether or not a stay
will reduce the burden of litigation[.]" Johnson v. Navient Solutions, Inc., 150 F. Supp. 3d 1005,
1007 (S.D. Ind. 2015). "Filing a motion to dismiss does not automatically stay discovery," and as
a general matter, "a stay of discovery is warranted only when a party raises a potentially dispositive

threshold issue such [as] standing, jurisdiction, or qualified immunity." Red Barn Motors, Inc. v.
Cox Enters., Inc., 2016 WL 1731328, at *2-3 (S.D. Ind. May 2, 2016).
III. ANALYSIS
The Court will briefly set forth the Parties' arguments related to the pending motion. The
Clay County Defendants renew their request to stay merits discovery on Plaintiffs' claims against
them because they contend Plaintiffs' claims are weak, have previously been rejected, and no
discovery is necessary to decide the pending dismissal motion. [Dkt. 136 at 3-6.] The Clay County
Defendants contend that a stay will reduce the burden of litigation on the Parties, emphasizing that
before the initial discovery stay was granted, Plaintiffs served the Clay County Defendants with
twenty-six requests for production. [Dkts. 136 at 7; 137-1.] The Clay County Defendants argue

that a stay will not unduly prejudice the Plaintiffs because "records on how a county spent money
will be available after a motion to dismiss is decided, if any of [Plaintiffs'] claims are permitted to
go forward." [Dkt. 136 at 7.]
Plaintiffs oppose the Clay County Defendants' request to stay merits discovery, arguing
that they are no longer making threshold arguments about Plaintiffs' standing to sue. [Dkt. 147 at
1-2.] Plaintiffs emphasize that courts disfavor discovery stays and that it is well-established that
a stay should not be granted simply because a motion to dismiss is pending. [Dkt. 147 at 5.]
Plaintiffs contend that a stay would prejudice them even further by continuing to delay merits
discovery after more than a year of litigation, would not simplify the case, and would not reduce
the burdens of litigation for various reasons. [Dkt. 147 at 5-7.]
In their reply, the Clay County Defendants point out that the Court has already dismissed
all of Plaintiffs' claims against them and their renewed Motion to Dismiss asks it to do so again.

[Dkt. 156 at 1.] They emphasize that they do contend that Plaintiffs do not have standing to bring
the claims, [dkt. 156 at 3], and they emphasize that when Judge Lynch stayed merits discovery
previously, she made the observation that it appeared that Plaintiffs intended to pursue "'an
aggressive discovery effort.'" [Dkt. 156 at 10 (quoting dkt. 74 at 10).] The Clay County
Defendants point out that they are funded by taxpayers, and they implore the Court to continue the
stay of merits based discovery to reduce the burdens of litigation. [Dkt. 156 at 10.]
The Court reiterates that, in general, a stay of discovery is inappropriate simply because a
motion to dismiss is pending. See Red Barn Motors, 2016 WL 1731328, at *3. After considering
the procedural history of this case and the arguments raised by the Parties, however, the Court
finds that good cause exists to stay merits based discovery on Plaintiffs' claims. The Clay County

Defendants have met their burden of proof to show the Court that it should exercise its discretion
in this manner. Specifically, the Clay County Defendants previously succeeded on a full motion
to dismiss Plaintiffs' claims in this case, [dkt. 116], and they now seek to do so again, [dkt. 150].
Plaintiffs have already responded to that pending motion and never argued that merits discovery
was necessary for it to do so. While the undersigned makes no predictions on the outcome of that
dismissal motion, continuing the stay of merits discovery while that motion is pending will greatly
simplify the issues for the Parties. The Court further finds that doing so will undoubtedly reduce
the burden of litigation, given the breadth of the discovery requests that were previously served by
Plaintiffs on the Clay County Defendants, [see dkt. 137-1 (Plaintiff's now withdrawn Requests for
Production)], as well as Judge Lynch's prior observation that it appeared Plaintiffs intended to
pursue "an aggressive discovery effort[,]" [dkt. 74 at 10]. Finally, the undersigned also agrees
with Judge Lynch's prior observation that it is not clear that the discovery stay sought would unduly
prejudice Plaintiffs because it does not appear that the types of merits discovery they seek would

be compromised by the passage of time since Plaintiffs have knowledge of their own experiences,
there is a contractual nature to the claims, and any financial records should continue to exist. [Dkt.
74 at 8-10.]
While Plaintiffs would of course prefer that full merits discovery proceed, the Court finds
that Plaintiffs' response brief downplays the significant progress that has been made in this case
since it was initially filed. The Defendants' initial round of dismissal motions were fully briefed
and ruled upon, with the Court issuing a detailed opinion that did allow one of Plaintiffs' claims to
proceed against the Federal Defendants. [Dkt. 116.] Class certification discovery was allowed to
proceed, despite Defendants' attempt to stay that as well.4 Plaintiffs' Renewed Motion for Class
Certification is now almost fully briefed, [dkt. 158], as are the second round of dismissal motions,

[dkts. 150; 152]. And pursuant to an agreement between Plaintiffs and the Federal Defendants,
the Federal Defendants should have already produced the administrative record related to that
claim to the Plaintiffs. [Dkt. 127.] While this progress is undoubtedly slower than Plaintiffs would
prefer, sometimes one must look for progress over perfection, and progress has certainly been
made in this case.
For all of these reasons, the Court finds it appropriate to grant the Clay County Defendants'
Renewed Motion to Stay Discovery, [dkt. 136], such that merits discovery on Plaintiffs' claims

4 The Court is confused by Plaintiffs' arguments regarding apparent dissatisfaction with the Clay County Defendants'
class certification discovery, [dkt. 147 at 11-12], given that Plaintiffs wanted class certification discovery to proceed
and the Court allowed it over the Clay County Defendants' objection, [dkt. 74].
against the Clay County Defendants is stayed until there is a ruling by the Court on the Clay County
Defendants’ Motion to Dismiss, [dkt. 150].
IV. CONCLUSION
For the reasons stated herein, the Court hereby GRANTS the Clay County Defendants’
Renewed Motion to Stay Discovery, [dkt. 136], and STAYS MERITS DISCOVERY on
Plaintiffs’ claims against the Clay County Defendants until there is a ruling by the Court on the
Clay County Defendants’ Motion to Dismiss, [dkt. 150].
At the upcoming Telephonic Status Conference scheduled for September 20, 2023, counsel
for the Federal Defendants must be prepared to confirm that the administrative record related to
Count I of Plaintiffs’ Amended Complaint has been produced. [Dkt. 127.]
SO ORDERED.
Date: 9/13/2023 Koll 1 Ronn
Kellie M. Barr
United States Magistrate Judge
Southern District of Indiana
Distribution:
Counsel of record via CM/ECF

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10170469. Public record. Not legal advice.