The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KELSEA D. WIGGINS, et al.,
Plaintiffs,
Civil Action 2:19-cv-3223
v. Judge Edmund A. Sargus
Magistrate Judge Kimberly A. Jolson
BANK OF AMERICA, N.A., et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendants’ Motion to Stay Discovery. (Doc. 25). For
the following reasons, Defendants’ Motion is GRANTED in part and DENIED in part. Until
the Court rules on Defendants’ Motion to Dismiss, the parties shall engage in limited discovery
pertaining to Ohio transactions only. In light of this Order, the parties are DIRECTED to file a
proposed Rule 26(f) Report by February 5, 2020, and the Court will hold a preliminary pretrial
conference on February 12, 2020, at 11:00 a.m.
I. BACKGROUND
Plaintiff Kelsea Wiggins, an Ohio Citizen, has filed two putative, nationwide class actions
against Defendants Bank of America, N.A. (“BANA”) and Bank of America Corporation
(“BAC”), (collectively “Defendants”) related to Defendants’ assessment of overdraft fees. (See
2:19-cv-3223; 2:19-cv-3485). Two non-Ohio citizens, Christian Portillo and Jonathan Mull joined
Ms. Wiggins as named Plaintiffs in the case presently before the Court. (See 2:19-cv-3223, Doc.
1). Plaintiffs seek “legal and equitable remedies resulting from Bank of America’s practices of
systematically assessing $35.00 fees to its customers for overdrafts triggered by microtransactions
of $1.00 or less (and often times as little as a single cent).” (Doc. 1, ¶ 1).
Procedurally, this case is still in its early stages. The parties have not yet had their
preliminary pretrial conference or engaged in discovery. (See Doc. 26). Defendants moved to
dismiss on September 27, 2019. (Doc. 11). In their Motion, they make four primary arguments
in support of dismissal: (1) the Court does not have personal jurisdiction over non-Ohio Plaintiffs;
(2) federal law preempts Plaintiffs’ common law claims; (3) Plaintiffs’ claims fail on the merits;
and (4) Plaintiffs’ state law claims cannot proceed on a nationwide basis. (See generally Doc. 11-
1). Defendants filed a Motion to Stay Discovery on December 27, 2019, requesting that the Court
stay discovery pending resolution of their Motion to Dismiss. (Doc. 25). That Motion is fully
briefed and ripe for resolution. (See Docs. 25, 27, 28).
II. STANDARD
“A district court has the inherent power to stay proceedings based on its authority to
manage its docket efficiently.” Ohio Valley Bank Co. v. MetaBank, No. 2:19-CV-191, 2019 WL
2170681, at *2 (S.D. Ohio May 20, 2019) (quotation marks and citations omitted). And, as is the
case here, parties routinely file motions to stay discovery while a motion to dismiss is pending.
See Shanks v. Honda of Am. Mfg., No. 2:08-CV-1059, 2009 WL 2132621, at *1 (S.D. Ohio July
10, 2009) (noting that, “[t]his Court has had many occasions, over the years, to address the question
of whether a stay of discovery should be imposed during the pendency of a motion to dismiss”).
“[A]s a general rule, this Court is not inclined to stay discovery while a motion to dismiss is
pending[.]” Id.; see also Ohio Valley Bank, 2019 WL 2170681, at *2 (quotation marks and citation
omitted) (noting that “the Court has frequently found that the fact that a party has filed a case-
dispositive motion is usually deemed insufficient to support a stay of discovery”).
In “special circumstances,” however, a court may find that a discovery stay is appropriate.
Ohio Valley Bank, 2019 WL 2170681, at *2. A discovery stay may serve the interests of judicial
economy, for example, where “the defendant has raised a defense, such as absolute or qualified
immunity, which must, as a matter of law, be addressed before discovery appears” or where “it
appears that the complaint will almost certainly be dismissed.” Id. (citations omitted). Further, in
considering a motion to stay discovery, “‘a court weighs the burden of proceeding with discovery
upon the party from whom discovery is sought against the hardship which would be worked by a
denial of discovery.’” Id. (quoting Bowens v. Columbus Metro. Library Bd. of Trustees, No.
CIV.A. 2:10-CV-00219, 2010 WL 3719245, at *1 (S.D. Ohio Sept. 16, 2010)).
At bottom, “[t]he Court [ ] must tread carefully in granting a stay of proceedings since a
party has a right to a determination of its rights and liabilities without undue delay.” Ohio Valley
Bank, 2019 WL 2170681, at *2 (quotation marks and citations omitted).
III. DISCUSSION
In moving to stay discovery, Defendants focus primarily on the jurisdictional questions in
this case. Specifically, Defendants contend that the Court does not have personal jurisdiction over
the claims of non-Ohio class members. (Doc. 25 at at 1–3 (citing Bristol-Myers Squibb Co. v.
Superior Court, 137 S. Ct. 1773 (2017)). And according to Defendants, if the Court grants their
Motion to Dismiss, the case will become an “Ohio-only case.” (Doc. 28 at 1). Defendants
therefore seek to avoid purportedly unnecessary discovery, contending that “it matters a great deal
whether the scope of discovery involves the Bank’s customers in the State of Ohio or (as Plaintiffs
seek) every single one of its accounts in the United States.” (Id. at 2). In response, Plaintiffs assert
that, as a general rule, this Court does not stay discovery based on the pendency of a motion to
dismiss, even in cases presenting jurisdictional questions. (Doc. 27 at 2–5 (citing cases)).
On this point, the Undersigned agrees with Plaintiffs. It beyond dispute that this Court
“frequently” has found that “‘the fact that a party has filed a case-dispositive motion is usually
deemed insufficient to support a stay of discovery.’” Ray v. Dir., Ohio Dep’t of Health, No. 2:18-
CV-272, 2018 WL 4907080, at *2 (S.D. Ohio Oct. 10, 2018) (quoting Bowens, 2010 WL 3719245,
at *2). This is true for several reasons. First, “‘[h]ad the Federal Rules contemplated that a motion
to dismiss under Fed. R. Civ. P. 12(b)(6) would stay discovery, the Rules would contain a provision
to that effect.’” Ray, 2018 WL 4907080, at *2 (quoting Williams v. New Day Farms, LLC, No.
2:10-cv-394, 2010 WL 3522397, at *2 (S.D. Ohio Sept. 7, 2010)). Indeed, “‘such a notion is
directly at odds with the need for expeditious resolution of litigation,” and, because “‘motions to
dismiss are a frequent part of federal practice, this provision only makes sense if discovery is not
to be stayed pending resolution of such motions.’” Ray, 2018 WL 4907080, at *2 (quoting
Williams, 2010 WL 3522397, at *2). Further, Defendants’ Motion “‘would require the [C]ourt to
make a preliminary finding of the likelihood of success on the motion to dismiss,’” which “‘would
circumvent the procedures for resolution of such a motion.’” Ray, 2018 WL 4907080, at *2
(quoting Williams, 2010 WL 3522397, at *2).
Additionally, none of the “special circumstances” weighing in favor of a complete stay of
discovery are present in this case. See Ohio Valley Bank, 2019 WL 2170681, at *2. For example,
Defendants’ Motion to Dismiss does not “raise[] an issue such as immunity from suit, which would
be substantially vitiated absent a stay.” Ray, 2018 WL 4907080, at *2 (quotation marks and
citation omitted). Nor is it “patent that the case lacks merit and will almost certainly be dismissed.”
Id. (quotation marks and citations omitted). While Defendants insist that their Motion to Dismiss
is meritorious, (see generally Docs. 25-1, 28), “the Court cannot conclude that Plaintiffs’ claims
are frivolous or that it is highly likely that Defendants’ Motion to Dismiss will be granted.” Ray,
2018 WL 4907080, at *2 (citing Dummen NA, Inc. v. Proven Winners N. Am. LLC, No. 2:16-cv-
00709, 2017 WL 486820-1, at *1– 2 (explaining that it is “unpersuasive for a party to rely on the
strength of the motion to dismiss in moving for a motion to stay, unless the complaint is clearly
frivolous,” and that the court is “not inclined to grant a stay based on one party’s view of the
strength of” its motion)).
But the Court must also weigh the relative discovery burdens in this case. See Peters, 2014
WL 6687146, at *3. Plaintiffs assert that a discovery stay would result in prejudice because it
would “den[y] [them] the opportunity to obtain facts to be used in the event the Court’s decision
on the Motion to Dismiss grants Plaintiffs leave to file an amended complaint.” (Doc. 27 at 6).
But despite Plaintiffs’ contention that such prejudice would be “substantial,” they have not asserted
that they need additional discovery to respond to the Motion to Dismiss, which is now fully briefed,
or that such discovery is time-sensitive and will not be available after a ruling on Defendants’
Motion to Dismiss. The Court considers this relatively light burden against Defendants’
potentially heavy burden of producing robust discovery. Defendants assert that, because
“Plaintiffs’ claims concern transaction-level inquiries into individual bank accounts for a
nationwide class,” the granting of its Motion to Dismiss, would “eliminate the claims of two-thirds
of the named plaintiffs and the lion’s share of the putative class.” (Doc. 28 at 2). Therefore,
according to Defendants, “it matters a great deal whether the scope of discovery involves the
Bank’s customers in the State of Ohio or (as Plaintiffs seek) every single one of its accounts in the
United States.” (Id.).
In balancing these competing hardships, the Court finds that the scale tips in Defendants’
favor. The mere fact that Defendants filed a case-dispositive motion does not tip the scale one
way or the other; however, the Court is mindful of Defendants’ desire to avoid expansive
nationwide class discovery at this stage of the litigation. On the other hand, Plaintiffs are entitled
to discovery. On balance, the Court finds that the most just outcome is to allow the parties to
proceed with limited discovery. Given Defendants’ concerns that this case will become an Ohio-
only case following a resolution of its Motion to Dismiss, the Court will limit discovery to only
Ohio transactions. In other words, the parties shall engage in discovery in earnest but shall not
begin nationwide class discovery while the Motion to Dismiss remains pending.
In light of this Order, the parties are DIRECTED to file a proposed Rule 26(f) Report by
February 5, 2020, and the Court will hold a preliminary pretrial conference on February 12, 2020,
at 11:00 a.m.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Stay Discovery (Doc. 25) is GRANTED
in part and DENIED in part.
IT IS SO ORDERED.
Date: January 29, 2020 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE