# Friedman, Esq. v. Nexien, Inc.

> District Court, E.D. New York · November 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10307107

## Case

- **Court:** District Court, E.D. New York
- **Decided:** November 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10307107

## How later opinions describe it (automated extraction)

- noting that “venue is a matter liquidating assets of a bankruptcy debtor for that goes to process rather than substantive the benefit of the debtor’s creditors, rights”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
RONALD J. FRIEDMAN, ESQ., in his capacity as
Trustee of ELLETT BROTHERS, LLC, a/ka/
ELLETT BROTHERS, INC.,

Plaintiff, ORDER
21-CV-03292 (DRH) (JMW)
-against-

NEXIEN, INC.,

Defendant.
--------------------------------------------------------------X

APPEARANCES

Attorney for Plaintiff

SILVERMAN, ACAMPORA LLP
100 Jericho Quadrangle
Suite 300
Jericho, New York 11753
By: Gayle Sharon Gerson

Attorney for Defendant

KIM, CHO & LIM, LLC
460 Bergen Boulevard
Suite 305
Palisades Park, New Jersey 07650
By: Sean Seokchan Kwak
WICKS, Magistrate Judge: oral argument (DE 22), the Court declines
Defendant’s invitation to stay discovery
“[T]he power to stay proceedings is pending the motion to dismiss. Accordingly,
incidental to the power inherent in the motion for a stay is denied.
every court to control the disposition
of the causes on its docket with
economy of time and effort for itself, STATEMENT OF FACTS
for counsel, and for litigants. How
this can best be done calls for the Defendant, Nexien, Inc. (“Nexien”) is
exercise of judgment, which must a corporation organized and existing under
weigh competing interests and the laws of New Jersey operating out of its
maintain an even balance.”1 headquarters located in Ridgefield, New
Jersey. (DE 17-2 at 6.) Defendant also has a
At the nascent stage of this breach of satellite office in South Carolina, located at
contract action, Defendant moved to dismiss 2816 Main Street, Suite B, Newberry, South
on three grounds, namely (1) this Court lacks Carolina. (Id.) Samsung is Defendant’s
personal jurisdiction over Defendant; (2) the largest client, and one of its manufacturing
District of South Carolina, rather than the plants is located in Newberry, South
Eastern District of New York, is the proper Carolina. (Id.)
venue for this action; and (3) the principle of
forum non conveniens dictates that this case Ellett Brothers, Inc. (“Ellett”) is a
should be tried in South Carolina because all South Carolina limited liability company that
evidence and witnesses are located there. was the owner of and was headquartered at
That motion is presently pending before the 267 Columbia Ave., Chapin, South Carolina
Hon. Denis R. Hurley. (DE 14.) If granted, (the “Premises”). (DE 20 at 7.) On June 10,
Defendant’s motion to dismiss would be the 2019, Ellett filed a petition for bankruptcy in
death knell to Plaintiff’s entire case. On the the United States Bankruptcy Court for the
heels of that motion, Defendant now seeks a District of Delaware. (Id.) On November 6,
stay of discovery pending a decision on the 2019, the Bankruptcy Court confirmed a Plan
motion to dismiss. (DE 17.) of Liquidation under which Plaintiff, Ronald
J. Friedman, was designated as the
Defendant, confident in its motion, liquidation trustee for post-confirmation
portends a high likelihood of success on the proceedings. (Id.) All of the assets of the
motion to dismiss. Plaintiff, not surprisingly, debtors, including the Premises, were
is quite pessimistic about Defendant’s transferred to a liquidation trust administered
chances on the dismissal motion. by Plaintiff. (Id.) Plaintiff then engaged the
services of a South Carolina real estate broker
Having reviewed the submissions to market the Premises for lease, and in
(DE 17, 18, 19, 20, 21),2 and having heard September 2020, Defendant contacted

1 Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (E.D.N.Y. Oct. 30, 2007) (“The document is not
(Cardozo, J.). actually an affidavit, since it is unsworn, and is not
2Defendant challenged the declaration submitted by admissible as an unsworn declaration because it is
counsel for Plaintiff as non-compliant under 28 U.S.C. undated.”) While the initial filing was indeed non-
§ 1746 since it fails to state that the contents are “true compliant, as it was the declaration of Plaintiff’s
and correct” (DE 19) and, as such, should be attorney rather than Plaintiff, the Court granted leave
considered inadmissible. See Williams v. Keisler, No. during oral argument to permit Plaintiff to resubmit a
07 CV 503 (ARR), 2007 WL 9723294, at *4 compliant declaration, which he did. (See DE 23.)
Plaintiff through his attorney and initiated defendant. (Id.) Defendant then served its
negotiations for Defendant’s lease of the Motion to Dismiss in this action, followed by
Premises. (Id. at 8.) These negotiations took the instant motion for a stay.
place between Plaintiff’s attorney located in
New York and Defendant’s representatives
who were located in New Jersey. (Id.)
APPLICABLE STANDARD ON A
The lease agreement, which was MOTION FOR A STAY
executed on or about November 1, 2020 by
Plaintiff and Defendant’s operations It is axiomatic that the mere filing of
manager, Paul Kim, identifies Plaintiff as the a motion to dismiss or other dispositive
landlord and states his physical New York motion simply does not stay discovery in an
location. (Id.) The lease also provides that action. A party may, however, seek such
rent payments are to be made to the Landlord relief under Fed. R. Civ. P. 26(c). “Although
at his New York address. (Id.) Paul Kim is not expressly authorized by statute or rule, . .
currently a defendant in a criminal action in . the federal district courts have discretion to
the District of South Carolina, concerning impose a stay of discovery pending the
matters relating to his negotiation of the very determination of dispositive motions by the
lease at issue in this case. issuance of a protective order.” Hachette
Distrib., Inc. v. Hudson Cnty. News Co., Inc.,
Pursuant to the lease, Defendant 136 F.R.D. 356, 358 (E.D.N.Y. 1991) (Spatt,
completed its payments for the first two J.) (collecting cases). Rule 26 contemplates
months via ACH payments made to that a court may stay discovery while a
Plaintiff’s New York bank account. (Id. at 9.) motion to dismiss is pending, but only if
In total, Defendant paid approximately “good cause” is shown. Hollins v. U.S. Tennis
$118,057.36 to Plaintiff for the security Ass’n, 469 F. Supp. 2d 67, 78 (E.D.N.Y.
deposit and two monthly rent payments. (Id.) 2006) (citations omitted); see also Chesney v.
On January 21, 2021, Defendant informed Valley Stream Union Free Sch. Dist. No. 24,
Plaintiff by letter of its intent to surrender the 236 F.R.D. 113, 115 (E.D.N.Y. 2006). This
Premises, and that Defendant defaulted under mandate of a showing of “good cause” is
the lease. (Id.) On or about April 6, 2021, critically important because Rule 1 of the
Defendant sued Paul Kim for fraud in South Federal Rules of Civil Procedure advises that
Carolina District Court. However, Plaintiff the Rules “should be construed,
here was not named in the action. (Id.) administered, and employed by the court and
the parties to secure the just, speedy, and
Plaintiff—unaware of the South inexpensive determination of every action
Carolina action—commenced this action on and proceeding.” Fed. R. Civ. P. 1. Indeed,
June 11, 2021. (Id.) On July 21, 2021, a request to stay litigation appears to be the
Defendant filed a Letter Motion objecting to antithesis of that very command. Some
personal jurisdiction and venue with no commentators, for example, have in fact
mention of the South Carolina action. (Id. at questioned whether staying discovery in fact
10.) Thereafter, Defendant filed a motion for stays justice.3 Accordingly, even when both
leave to amend its complaint in the South parties consent to a stay, the court is under a
Carolina action to add Plaintiff as a duty to determine whether a stay is justified.

3 See, e.g., Kevin J. Lynch, When Staying Discovery When a Motion to Dismiss is Pending, 47 Wake Forest
Stays Justice: Analyzing Motions to Stay Discovery L. Rev. 71, 72 (2012).
Cf. Separ v. Cnty. of Nassau, 21-CV-00010, of this action. (Id. at 11.) In addition,
2021 WL 2474263 (E.D.N.Y. June 17, 2021) Defendant argues the Court lacks personal
(unopposed motion to stay). jurisdiction in that Defendant has no contact
with New York, as (1) it is domiciled in New
Motions seeking a stay, require a Jersey; (2) it has its relevant satellite office in
careful balancing of a fact-specific inquiry South Carolina; (3) the lease involves real
and a case-by-case analysis, considering the property in South Carolina; and (4) nearly all
nature and particular circumstances of the aspects of the transaction between Plaintiff
case and the companion dispositive motion. and Defendant occurred in South Carolina.
Thomas v. N.Y. City Dep’t of Educ., 2010 WL (Id.) Finally, Defendant contends that that all
3709923, at *3 (E.D.N.Y. Sept. 14, 2010). factors of the forum non conveniens
As such, courts look to the following factors: analysis—other than the fact that Plaintiff
(1) whether the defendant has made a strong brought the case in his home jurisdiction—
showing that the plaintiff’s claim is weighs in favor of discretionary dismissal.
unmeritorious; (2) the breadth of discovery (Id.)
and the burden of responding to it; and (3) the
risk of unfair prejudice to the party opposing Defendant next asserts that the factor
the stay. See Rivera v. Inc. Vill. of of burdensome discovery weighs heavily in
Farmingdale, No. 06-civ-2613 (DRH) its favor because this forum increases its
(ARL), 2007 WL 3047089, at *1 (E.D.N.Y. financial and other burdens. (Id. at 11–12.)
Oct. 17, 2007) (citing Port Dock & Stone According to Defendant, both it and Plaintiff
Corp. v. Oldcastle Ne., Inc., No. 05-civ-4294 are parties to ongoing litigation in South
(DRH) (ETB), 2006 WL 897996 (E.D.N.Y. Carolina, and all transactions related to
Mar. 31, 2006)). Defendant’s business, witnesses, and
evidence are located in South Carolina. (Id.
It is with these guideposts in mind at 12.) Defendant argues that discovery in
that the Court analyzes Defendant’s New York would require several
application. representatives of Defendant to travel
between the states for discovery and that
THE ARGUMENTS ADVANCED counsel would also need to travel to depose
any witnesses. Defendant cites to Federal
Defendant’s Arguments for a Motion to Rule of Civil Procedure 45(c), which states
Stay that “[a] subpoena may command a person to
attend a trial, hearing, or deposition . . . within
Defendant describes the “most simple 100 miles of where the person resides.” (Id.)
and dispositive argument for the dismissal,” Because New York is more than 100 miles
which it claims is the law of South Carolina. away from South Carolina, Defendant argues
(DE 17-2 at 10.) Defendant alleges this law that discovery in this forum would be
is applicable, which provides that “[a]ctions burdensome. (Id.) In addition, Defendant
which must be tried where subject matter is argues that this action imposes unnecessary
situated . . . for all matters between landlord burden for both Defendant and Plaintiff
and tenant . . . including . . . payment or because both parties will duplicate their
collection of rent.” (Id. (quoting S.C. Code discovery efforts in South Carolina and New
Ann. § 15-7-10).) Defendant claims that the York. (Id.)
choice-of-law provision in the lease and this
provision of South Carolina law is dispositive
According to Defendant, the breadth Plaintiff will suffer no prejudice by staying
of discovery will be broad and necessarily discovery. (Id.)
will include the transactions between Paul
Kim and Plaintiff. (Id.) Paul Kim is no Plaintiff’s Arguments Opposing the Stay
longer in Defendant’s control, but he
purportedly acted as Defendant’s agent in Plaintiff alleges that this Court does
nearly all communications with Plaintiff. have personal jurisdiction based on (1)
(Id.) Defendant will be forced to review Defendant’s initiation of negotiations with
many documents between Paul Kim and Plaintiff, a New York-based trustee; (2)
Plaintiff, and Defendant claims that because negotiations that occurred through email and
Paul Kim was a fraudster, the records are telephonic means, with agents or employees
likely to be fabricated. (Id. at 13.) This will of Defendant communicating with the
force Defendant to attempt to decipher what trustee’s agents in New York; (3) the Lease
is authentic in the records. That Paul Kim’s Agreement’s provision that Defendant’s
residency is in South Carolina further main point of contact would be the trustee, as
burdens discovery in this forum. (Id.) landlord; and (4) Defendant’s submission of
the security deposit, and first month’s rent,
Furthermore, Defendant intends to via ACH transfer to a trust account located in
bring a third-party claim against Paul Kim if New York. (DE 20 at 14.) Along with
the Motion to Dismiss is denied. (Id.) Thus, personal jurisdiction, Plaintiff reasons that a
Defendant argues that proceeding in district court may permit discovery in aid of
discovery in this action now would involve a dismissal motion, and the Court may allow
travel and segmented discovery, whereas a discovery on the limited issue of Defendant’s
stay if and until the Motion to Dismiss is contacts with the state of New York. (Id. at
denied would allow the parties to conduct 11 (citing David Tunick, Inc. v. Kornfeld, No.
discovery concerning the claims, defenses, 91-Civ-7027 (DNE), 1993 WL 6211, at *2
and anticipated third-party complaint (S.D.N.Y. Jan. 6, 1993)).) Plaintiff argues
simultaneously. (Id.) Additionally, that Defendant should not be allowed to
discovery in the South Carolina action, escape such discovery by its Motion to Stay.
Defendant alleges, affords both parties the (Id.)
same discovery opportunity without travel, Additionally, Plaintiff argues that this
and it will be streamlined as Paul Kim is action concerns Defendant’s breach of a
already named as a defendant in that action. lease, and it may not defeat a breach of
(Id.) contract claim by contending that a third
party tricked or defrauded it into entering the
As to the last prong of the analysis— contract. (Id. at 5.) The pending actions
undue prejudice—Defendant rests its against Paul Kim are not relevant here, and
argument on two cases, Giminez v. L. Offs. of Plaintiff argues that Defendant can pursue
Hoffman & Hoffman, 12-cv-0669, 2012 WL Paul Kim to indemnify it for its losses. (Id.
2861014 (E.D.N.Y. July 11, 2012) and at 6.) Because Plaintiff states that the South
Separ, 2021 WL 2474263, which found that Carolina Action is irrelevant here and
because those actions were in their infancy, a frivolous, he argues a stay of discovery is not
stay of discovery would pose little prejudice warranted on the basis of the pendency of the
to plaintiffs. (Id. at 14.) Defendant argues South Carolina action. (Id.)
that the parties have not begun discovery,
except for 26(a)(1) initial disclosures, thus
Plaintiff turns to Defendant’s generate a substantial recovery. (Id.)
contention that the law of South Carolina, Plaintiff argues that any delay to the
which requires that any action between a resolution of his claim harms Plaintiff and
landlord and tenant be tried in the county every creditor involved. (Id.)
where the subject premises is located, will
dismiss Plaintiff’s claim. (Id. at 15.) ANALYSIS
Plaintiff argues that federal courts sitting in
diversity, like this Court, must apply the The Court first turns to whether
substantive law of the state governing the Defendant has made a strong showing that
dispute, but the procedural laws of the federal Plaintiff’s claims are unmeritorious. This is
courts. (Id. (citing Hanna v. Plumer, 380 done, however, without prejudging the
U.S. 460, 465 (1965)).). Thus, Plaintiff motion to dismiss that is sub judice before
contends that because federal venue rules Judge Hurley. Rather, the task of analyzing
apply here—as venue is a procedural issue— the merits of the claims is merely one piece
and because the Lease Agreement does not of the larger puzzle fact-specific that must be
have a forum selection clause, Plaintiff was undertaken on a stay application.
within its right to commence action in New
York. (Id. at 16.) Plaintiff argues that the Defendant’s initial argument relying
choice-of-law provision is substantive law on the choice of law provision in the contract
which governs the dispute and that it applies at issue appears meritless. It is well-settled
to cases brought before the South Carolina that a choice of law provision does not dictate
state courts. (Id.) Moreover, Plaintiff asserts where a litigation will proceed. Harrington
that the venue chosen by Defendant for the v. Carter, 17-cv-2343 (ADS) (ARL), 2017
South Carolina Action is still not the county WL 4621618, at *3 (E.D.N.Y. Oct. 7, 2017).
in which Section 15-7-10 of South Carolina’s Thus, the provision stating that South
law would compel the case to be heard, as the Carolina law applies to any disputes arising
premises in question is located in Lexington out of the contract has no bearing on venue.
County and Defendant selected Columbia And even to initially consider South Carolina
County as the venue. (Id. at 17.) law, which, on its face, dictates that matters
concerning landlord-tenant disputes must
Plaintiff contends that its discovery proceed in the jurisdiction where the property
demands are inherently narrow because they is located, this Court must nonetheless apply
are directed at ascertaining the scope of federal venue principles, as venue is a matter
Defendant’s contacts with New York in of procedure rather than substance. Martinez
connection with the lease, as well as his claim v. Bloomberg LP, 740 F.3d 211, 220 (2d Cir.
for indemnification of any liability on the 2014) (“Questions of venue . . . are
Mechanic’s lien. (Id. at 18.) essentially procedural, rather than
substantive, in nature, and therefore should
Finally, Plaintiff argues that a be governed by federal law.”) (internal
substantial risk of prejudice to Plaintiff is quotation marks and citations omitted); see
present if a stay is imposed. (Id. at 19.) Am. Dredging Co. v. Miller, 510 U.S. 443,
Because Plaintiff is the trustee charged with 453 (1994) (noting that “venue is a matter
liquidating assets of a bankruptcy debtor for that goes to process rather than substantive
the benefit of the debtor’s creditors, rights”). Thus, Defendant’s threshold
Plaintiff’s claim against Defendant is a argument regarding the effect of the contract
considered a valuable asset, which could provisions on venue appears meritless.
allegations which controvert their prima facie
As to the personal jurisdiction case.” Id. (quoting Sodepac, S.A. v. Choyang
argument in the dismissal motion, “the court Park in Rem, No. 02 Civ 3927 (SAS), 2002
must consider whether the lawsuit “aris[es] WL 31296341, at *2 (S.D.N.Y. Oct. 10,
out of or relat[es] to the defendant’s contacts 2002). When a court has not held any
with the forum” to determine if jurisdiction hearings or trial on the merits, like here, “‘all
exists. Laydon v. Mizuho Bank, Ltd., No. 12 pleadings and affidavits must be construed in
Civ. 3419 (GBD), 2015 WL 1515358, at *1 the light most favorable to [plaintiff] and all
(S.D.N.Y. Mar. 31, 2015) (quoting doubts must be resolved in . . . plaintiff’s
Helicopteros Nacionales de Colombia, SA. v. favor.”’ Id. (quoting Landoil Res. Corp. v.
Hall, 466 U.S. 408, 414–15 (1984)). To Alexander & Alexander Servs., Inc., 918 F.2d
determine minimum contacts, courts focus on 1039, 1043 (2d Cir. 1990)).
“‘the relationship among the defendant,
forum, and the litigation.’” Id. (quoting While Defendant asserts a lack of
Colder v. Jones, 465 U.S. 783, 788 (1984)). jurisdiction argument, this claim is in sharp
“[T]he plaintiff cannot be the only link dispute and does not, on its face, make a
between the defendant and the forum.” strong showing that Plaintiff’s claims lack
Walden v. Fiore, 571 U.S. 277, 286 (2014). merit. First, Plaintiff alleges that
In New York, CPLR § 302 governs, and Defendant’s lease agreement with Plaintiff, a
“specific jurisdiction ‘depends on an resident of New York, payments to Plaintiff’s
affiliation between the forum and the New York bank, and negotiations with
underlying controversy, principally, activity Plaintiff, a trustee in New York, is sufficient
or an occurrence that takes place in the forum to establish that Defendant purposely availed
State and is therefore subject to the State’s itself of New York. See Polish Army
regulation.’” Godoy v. BMW of N. Am., LLC, Veterans of Am., Inc. v. Stasiewicz, No. 20-
16-CV-5502(DRH)(SIL), 2018 WL CV-3419 (MKB), 2021 WL 3130090, at *5
4608200, at *4 (E.D.N.Y. Sept. 25, 2018) (E.D.N.Y. July 23, 2021) (“Under New York
(quoting Goodyear Dunlop Tires Operations, state law, a defendant’s lack of physical
S.A. v. Brown, 564 U.S. 915, 919 (2011)). presence in the state is not dispositive of
New York’s long-arm statute set forth in whether he transacts business within the
CPLR § 302 states that courts have “specific state, ‘so long as the defendant’s activities
jurisdiction over non-domiciliaries ‘who, in [within the state] were purposeful and there
person or through an agent . . . (i) transacts is substantial relationship between the
business within the state or contracts transaction and the claim asserted”’) (quoting
anywhere to supply goods or services in the Fischbarg v. Doucet, 9 N.Y.3d 375, 380
state.”’ Id. (citation omitted). (2007)). ‘“Purposeful activities’ are ‘those
with which a defendant, through volitional
On a motion to dismiss for lack of acts, avails itself of the privilege of
personal jurisdiction, Plaintiff bears the conducting activities within the forum State,
burden of showing jurisdiction and, prior to thus invoking the benefits and protections of
discovery, Plaintiff need only show facts its laws.’” Id. (quoting Eades v. Kennedy, PC
constituting a prima facie showing in order to Law Offs., 799 F.3d 161, 167–68 (2d Cir.
defeat a motion to dismiss. Hollins, 469 F. 2015)). Defendant, although not physically
Supp. 2d at 70. “Plaintiffs may rely entirely present in the state of New York, contracted
on allegations of fact, and they will prevail with Plaintiff, a New York resident, and sent
even if the moving party makes contrary a number of payments to Plaintiff’s New
York bank account as required in the lease has made a strong showing on this branch of
agreement. While undoubtedly a close call, its motion.
this likely satisfies the purposeful contacts
required for specific jurisdiction. See FIA The parties’ arguments regarding the
Leveraged Fund v. Grant Thornton LLP, 150 burden and breadth of discovery are both
A.D.3d 492, 493–94 (2d Dep’t 2017) (finding persuasive and, taken together, do nothing to
personal jurisdiction where defendant move the needle in either direction.
communicated with plaintiff via email, the Defendant’s position is that all documents,
agreement at issue had wire instructions into witnesses, and anticipated third-party
New York, and Defendant transferred funds defendants are located in South Carolina.
to a New York bank). At a minimum, Moreover, the parties are already engaged in
Defendant has not made the required “strong litigation in that state, which would likely
showing” to support a stay of discovery. lead to duplicative discovery. Plaintiff, for its
part, points to the fact that this litigation
Next, the Court considers concerns the breach of a lease agreement. As
Defendant’s forum non conveniens argument. such, discovery will be minimal and not
That doctrine, of course, allows a court to burdensome, but rather “inherently narrow.”
refrain from exercising its jurisdiction over a Although both parties advance valid
case notwithstanding that such jurisdiction is arguments on that point, the Court notes the
technically proper. Flynn v. Gen. Motors, recent prevalence and predicted permanency
Inc., 141 F.R.D. 5, 8 (E.D.N.Y. 1992). A of conducting depositions virtually,
motion to dismiss based on forum non alleviating a number of issues raised by
conveniens “is a fact-intensive inquiry that Defendant.
proceeds in three steps,” requiring the district
court to “(i) determine the degree of Finally, as to the undue prejudice
deference to be accorded to plaintiff’s choice prong, although both parties make persuasive
of forum; (ii) determine whether an adequate arguments regarding whether there would be
alternative forum to entertain plaintiff’s undue prejudice to Plaintiff if a stay were
claims exists; and (iii) balance the private and granted, the Court finds this prong neutral as
public interest factors[.]” Celestin v. well. Defendant contends that because the
Martelly, 450 F. Supp. 3d 264, 272 n.6 South Carolina action is on-going, Plaintiff
(E.D.N.Y. 2020). will be able to conduct discovery related to
the lease agreement in that case while the
Although Plaintiff’s opposition does motion to dismiss here is resolved. Plaintiff
not address Defendant’s argument regarding takes the stance that, given his position as a
forum non conveniens and Defendant does liquidation trustee, time is of the essence for
make a persuasive argument, “unless the him to round up assets of the bankruptcy
balance is strongly in favor of the defendant, estate and satisfy creditors.
the choice of forum should rarely be
disturbed.” Gulf Oil Corp. v. Gilbert, 330 The Court concludes that a stay of
U.S. 501, 508 (1947). Based on this discovery here does not advance the ends of
principle, paired with the fact that forum non justice. The parties’ dispute over the lease—
conveniens is a discretionary factor analysis whether litigated here, in South Carolina or
employed by the district court, it is difficult any other venue—will require discovery.
to conclude at this juncture that Defendant Discovery produced here, could very well be
used elsewhere even if this case is dismissed.
CONCLUSION

In sum, discovery should not be
stayed in this case given that Defendant has
not made a strong showing that it will
succeed on the motion to dismiss, even if the
burden and prejudice prongs weigh in neither
parties’ favor. Accordingly, in the exercise
of discretion, the motion for a stay of
discovery is hereby DENIED.

Dated: Central Islip, New York
November 9, 2021

S O O R D E R E D:

James M. Wicks
/s/
James M. Wicks
United States Magistrate Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307107. Public record. Not legal advice.