# Poffenbarger v. Kendall

> District Court, S.D. Ohio · July 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10380479

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** July 19, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

MICHAEL POFFENBARGER, : Case No. 3:22-cv-1
:
Plaintiff, : District Judge Thomas M. Rose
: Magistrate Judge Caroline H. Gentry
vs. :
:
FRANK KENDALL, et al.,
:
Defendants. :
:

OPINION AND ORDER GRANTING PLAINTIFF’S MOTION TO
CONDUCT DISCOVERY (DOC. NO. 44) AND DENYING DEFENDANTS’
MOTION REGARDING SCOPE OF DISCOVERY (DOC. NO. 45)

This matter came before the undersigned Magistrate Judge on Plaintiff’s Motion to
Conduct Discovery (“Plaintiff’s Motion,” Doc. No. 44) and Defendants’ Motion
Regarding Scope of Discovery (“Defendant’s Motion,” Doc. No. 45). For the reasons set
forth below, Plaintiff’s Motion is GRANTED and Defendant’s Motion is DENIED.
I. FACTS
Plaintiff Michael Poffenbarger is a reservist in the United States Air Force (the
“Air Force”) who is stationed at Wright-Patterson Air Force Base. In this lawsuit,
Poffenbarger challenges the denial of his request for a religious exemption to the Air
Force’s COVID-19 vaccine mandate. He asserts claims under the Religious Freedom
Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., and the Free Exercise Clause of
the First Amendment to the United States Constitution. Defendants are the United States
of America and six individuals who are sued in their official capacity.
Poffenbarger filed an emergency motion for temporary restraining order and
preliminary injunction. (Doc. No. 2.) The Court issued a limited preliminary injunction

that enjoins Defendants from taking any further adverse action against Poffenbarger until
the merits can be decided. (Doc. No. 32, PageID #1224.) Significantly, the Court found
“at this stage of the litigation and based on what has been presented, Poffenbarger has
shown a strong likelihood of success on the merits of his claims.” (Id., PageID #1198.)
The parties subsequently filed a Rule 26(f) report that outlines their contradictory
positions on the scope of discovery. (Doc. No. 43.) At the Court’s instruction, the parties

filed simultaneous motions and responses regarding the scope of discovery.
In sum, Poffenbarger seeks to conduct discovery in accordance with the Federal
Rules of Civil Procedure. Defendants admit that he has a right to conduct discovery but
seek to stay discovery until the Court decides their forthcoming motion for summary
judgment, which they represent will be based upon the administrative record. Because a

stay of discovery is not warranted in these circumstances, the Court denies Defendants’
Motion and grants Plaintiff’s Motion.
II. LEGAL STANDARD
A. Scope of Discovery
This Court has broad discretion over the discovery process, including the scope of

discovery. Pittman v. Experian Info. Sol., Inc., 901 F.3d 619, 642 (6th Cir. 2018); Lewis
v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998).
The general rule is that “parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of
the case.” Fed. R. Civ. P. 26(b)(1) (emphasis added). Because courts construe relevance
broadly, the scope of discovery under Rule 26(b)(1) is usually quite broad. Luxottica of

Amer., Inc. v. Allianz Global Risks US Ins. Co., No. 1:20-cv-698, 2022 U.S. Dist. LEXIS
73650, *3 (S.D. Ohio Apr. 22, 2022) (citing Lewis, 135 F.3d at 402). But the scope of
discovery may be limited by the principle of proportionality, which is determined by “the
importance of the issues at stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed

discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).
In addition to limiting discovery based on proportionality, the Court may limit
discovery “where the information sought is overly broad or would prove unduly
burdensome to produce,” among other objections. Surles v. Greyhound Lines, Inc., 474
F.3d 288, 305 (6th Cir. 2007). See Fed. R. Civ. P. 26(c)(1) (allowing a party who believes

that requested discovery will cause annoyance, embarrassment, oppression, undue
burden, or undue expense to file a motion for protective order).
B. Motions to Stay Discovery
This Court’s broad discretion over the discovery process includes the “inherent
power to stay discovery until preliminary questions that may dispose of the case are

determined.” Hahn v. Star Bank, 190 F.3d 708, 719 (6th Cir. 1999).
Stays of discovery are generally disfavored. The party requesting the stay hopes
that intervening events will limit or eliminate discovery and the concomitant time, hassle
and expense. However, the party opposing the stay has a compelling interest in being
permitted to utilize the Federal Rules of Civil Procedure and move the case to a just and
timely conclusion. This compelling interest usually outweighs the moving party’s interest

in delaying discovery. See Ohio Environ. Council v. U.S.D.C., 565 F.2d 393, 396 (6th
Cir. 1977) (courts “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”).
In most circumstances, therefore, this Court will deny a motion to stay discovery.
For example, although parties routinely seek to stay discovery while motions to dismiss
are pending, these requests are typically denied. See, e.g., Wilson v. Ancestry.Com LLC,

No. 2:22-cv-861, 2022 WL 2208817, 2022 U.S. Dist. LEXIS 110128, *3 (S.D. Ohio June
21, 2022). The mere fact that a dispositive motion is pending is also usually insufficient
to justify a stay of discovery. Ohio Valley Bank Co. v. Metabank, No. 2:19-cv-191, 2019
WL 2170681, 2019 U.S. Dist. LEXIS 84440, *5-6 (S.D. Ohio May 20, 2019).
Certain dispositive motions do warrant a stay of discovery. This Court may stay

discovery “where claims may be dismissed ‘based on legal determinations that could not
have been altered by any further discovery.’” Gettings v. Bldg. Laborers Local 310
Fringe Benefits Fund, 349 F.3d 300, 304 (6th Cir. 2003) (quoting Muzquiz v. W.A. Foote
Mem. Hosp. Inc., 70 F.3d 422, 430 (6th Cir. 1995)). Courts also routinely stay discovery
in cases involving assertions of qualified immunity, as this defense confers “a right to

immunity from trial” rather than a “mere defense to liability.” Myers v. Potter, 422 F.3d
347, 357 (6th Cir. 2005) (internal quotations and citations omitted). These cases are
exceptions to the general rule disfavoring motions to stay discovery, however.
III. ANALYSIS
Defendants concede that the Administrative Procedure Act does not govern

Poffenbarger’s claims. (Doc. No. 47, PageID #1440.) Nevertheless, they argue that the
Court should stay discovery and decide the merits of their forthcoming motion based
upon the administrative record and evidence presented in connection with the preliminary
injunction proceeding. (Id.) Defendants contend that this approach will further judicial
economy and “is also particularly appropriate given the military context of this action.”
(Id., PageID #1441.) Defendants argue that “full-blown discovery” is inefficient and that

Poffenbarger can obtain any discovery that he actually needs to oppose summary
judgment by filing an affidavit or declaration under Rule 56(d). (Id., PageID #1440.)
Poffenbarger argues that it would be unfair to limit the record on summary
judgment to the evidence in the administrative record and submitted by Defendants in
connection with the preliminary injunction hearing. (Doc. No. 46, PageID #1420.) He

points out that Defendants introduced and relied upon declarations from several witnesses
and he will be prejudiced if he is unable to cross-examine them. (Id.) He also argues that
because Defendants partially bear the burden of proof for purposes of the RFRA claim,
discovery is necessary to evaluate the adequacy of the Government’s fact-finding
procedures. (Doc. No. 44, PageID #1404.)

The Court agrees with Poffenbarger. Although Defendants have an interest in
staying discovery, that interest is outweighed by Poffenbarger’s compelling interest in
conducting discovery and moving this case forward with all due speed, particularly given
the impact that the parties’ dispute has had on his career in the Air Force. Ohio Environ.
Council v. U.S.D.C., 565 F.2d 393, 396 (6th Cir. 1977).

Further, stays of discovery are disfavored except in a few categories of cases, and
this is not one of them. To the contrary, given the Court’s finding that Poffenbarger has a
strong likelihood of success on the merits, the Defendants’ forthcoming motion for
summary judgment is unlikely to raise “preliminary questions that may dispose of the
case.” Hahn v. Star Bank, 190 F.3d 708, 719 (6th Cir. 1999).
Indeed, given the Court’s finding about the likelihood of success on the merits, it

is difficult to understand how Defendants can rely on substantially the same record and
prove that the Government’s actions were “the least restrictive means of furthering [a]
compelling governmental interest.” 42 U.S.C. § 2000b-1(b). Assuming arguendo that
Defendants can do so, it would be unfair to limit Poffenbarger’s ability to develop
evidence on this issue (as well as other elements of this claim).

Defendants argue that any prejudice can be eliminated by invoking Rule 56(d).
Although that rule does provide a safeguard in cases where a party files an early motion
for summary judgment, it is not a substitute for discovery under the Federal Rules of
Civil Procedure. There is no basis for limiting Poffenbarger’s ability to conduct discovery
to whatever narrow issues Defendants choose to raise in a motion for summary judgment.

Finally, although the Court recognizes that deference to the Air Force is
appropriate in certain respects, the Court is unaware of any legal authority that restricts a
litigant’s ability to seek discovery from a military defendant with respect to a claim
asserted under the RFRA.
The Court notes that if Defendants believe that certain discovery requests are
overly burdensome or disproportionate, they can seek appropriate relief from this Court

in accordance with the Federal Rules of Civil Procedure. This mechanism will adequately
address any specific concerns that Defendants have about the scope of discovery.
IV. CONCLUSION
For the reasons stated above, the Court GRANTS Plaintiff’s Motion to Conduct
Discovery (Doc. No. 44) and DENIES Defendants’ Motion Regarding Scope of
Discovery (Doc. No. 45).

Any party may, within fourteen (14) days after this Order is filed, file and serve on
the opposing party a motion for reconsideration by a District Judge. 28 U.S.C.
§ 636(b)(1)(A), Fed. R. Civ. P. 72(a). The motion must specifically designate the order or
part in question and the basis for any objection. Responses to objections are due ten days
after objections are filed and replies by the objecting party are due seven days thereafter.

The District Judge, upon consideration of the motion, shall set aside any part of this
Order found to be clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the filing of any objections,
unless stayed by the Magistrate Judge or District Judge. S.D. Ohio Civ. R. 72.4.
IT IS SO ORDERED.

/s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10380479. Public record. Not legal advice.