The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRADLEY M. PETERSON,
Plaintiff,
v. Civil Action 2:22-cv-276
Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura
KRISTINA M. JOHNSON, et al.,
Defendants.
OPINION AND ORDER
Plaintiff, Bradley M. Peterson, brings this action under 42 U.S.C. § 1983 against several
employees of The Ohio State University in both their individual and official capacities, alleging
that they violated his Fourteenth Amended due process rights in connection with an investigation
of sexual harassment allegations against Plaintiff. This matter is before the Court on Defendants’
Motion to Stay Discovery (ECF No. 15) pending resolution of Defendants’ Motion to Dismiss
Plaintiff’s Complaint under Federal Rule of Civil Procedure 12(b)(6) (ECF No. 7). For the
following reasons, Defendants’ Motion to Stay Discovery (ECF No. 15) is GRANTED IN
PART and DENIED IN PART.
I. BACKGROUND
Plaintiff commenced this action against Defendants Kristina M. Johnson, President of
The Ohio State University (“OSU”), and Bruce McPheron, Executive Vice President and Provost
of OSU, on January 24, 2022. (Compl., ECF No. 1.) Plaintiff’s Complaint asserts a single count
against both Defendants under 42 U.S.C. § 1983 for violation of his Fourteenth Amendment due
process rights, and specifies that the count “is brought against the individual defendants in their
official capacity for injunctive relief” and “is brought against the individual defendants in their
individual capacity for damages.” (Id. at ¶¶ 57–58.) On August 29, 2022, the Court granted
Plaintiff’s Motion to Substitute Party due to Dr. McPheron’s replacement as OSU’ Executive
Vice President and Provost by Melissa L. Gilliam. (ECF Nos 17–18.) The Court noted that,
although Ms. Gilliam substituted for Dr. McPheron as to the official-capacity claims against him,
the individual-capacity claims against Dr. McPheron remain pending. (Order, ECF No. 18.)
On April 15, 2022, Defendants filed a Motion to Dismiss Plaintiff’s Complaint under
Rule 12(b)(6), relying partially on Defendants’ assertion of qualified immunity as to Plaintiff’s
individual-capacity claims for money damages. (ECF No. 7.) After Defendants raised concerns
with Plaintiff about the breadth of his discovery requests, Defendants also filed a Motion to Stay
Discovery on August 9, 2022 (ECF No. 15), pending resolution of the Motion to Dismiss. The
Motion to Stay Discovery argues that all discovery should be stayed until the Court rules on the
qualified immunity defense raised by Defendants in their Motion to Dismiss, that Plaintiff’s
written discovery requests and requested depositions are overbroad and unduly burdensome, and
that resolution of these discovery disputes may be avoided if Defendants’ Motion to Dismiss is
granted. (ECF No. 15.) Defendants recognize that they “could seek a protective order as it relates
to overbroad discovery,” but “contend that a stay of discovery could allow the parties to
potentially avoid needless briefing on Motions to Compel or Motions for Protective Order,
thereby preserving the Court’s resources as well as their own, at least at this juncture.” (Id. at 4–
5).
In opposition, Plaintiff argues that discovery should be stayed at most as to the
individual-capacity claims to which qualified immunity might apply; case law establishes that
discovery as to Plaintiff’s official-capacity claims, which will proceed regardless of the qualified
immunity determination, should not be delayed merely because Defendants filed a motion to
dismiss. (ECF No. 16.) Plaintiff also disputes Defendants’ characterization of his discovery
requests as overbroad and unduly burdensome. (Id.)
II. STANDARD OF REVIEW
“A stay of discovery for any reason is a matter ordinarily committed to the sound
discretion of the trial court.” Peters v. Credit Prot. Ass’n LP, No. 2:13-CV-767, 2014 WL
6687146, at *3 (S.D. Ohio Nov. 26, 2014). The Federal Rules of Civil Procedure “permit[] a
district court to issue a protective order staying discovery during the pendency of a motion for
‘good cause shown.’” Bowens v. Columbus Metro. Library Bd. of Trs., No. 2:10-cv-00219, 2010
WL 3719245, at *1 (S.D. Ohio Sept. 16, 2010) (quoting Fed. R. Civ. P. 26(c)). As the United
States Court of Appeals for the Sixth Circuit has often recognized, “[d]istrict courts have broad
discretion and power to limit or stay discovery until preliminary questions which may dispose of
the case are answered.” Bangas v. Potter, 145 F. App’x 139, 141 (6th Cir. 2005) (citing Hahn v.
Star Bank, 190 F.3d 708, 719 (6th Cir. 1999)). In addition, “[l]imitations on pretrial discovery
are appropriate 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’l Hosp.,
Inc., 70 F.3d 422, 430 (6th Cir. 1995)).
In assessing whether a stay is appropriate, “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.” Bowens, 2010 WL 3719245, at *1. “When a stay, rather than
a prohibition, of discovery is sought, the burden upon the party requesting the stay is less than if
he were requesting a total freedom from discovery.” Williamson v. Recovery Ltd. P’ship, No.
2:06-CV-0292, 2010 WL 546349, at *1 (S.D. Ohio Feb. 10, 2010) (citing Marrese v. Am. Acad.
of Orthopedic Surgeons, 706 F.2d 1488, 1493 (7th Cir. 1983)).
In exercising its discretion on this issue, 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.” Bowens, 2010 WL 3719245, at *2 (internal citation omitted) (denying the
defendants’ motion to stay discovery despite their pending summary judgment motion); see also
Williams v. New Day Farms, LLC, No. 2:10-cv-0394, 2010 WL 3522397, at *1–2 (S.D Ohio
Sept. 7, 2010) (denying motion to stay discovery pending a ruling on a potentially dispositive
motion). The Court has noted various reasons for this general approach:
The intention of a party to move for judgment on the pleadings is not ordinarily
sufficient to justify a stay of discovery. 4 J. Moore, Federal Practice § 26.70[2], at
461. Had 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. In fact, such a notion is directly at odds with the need for expeditious
resolution of litigation . . . . Since 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. Furthermore, a stay of the type requested by
defendants, where a party asserts that dismissal is likely, would require the court to
make a preliminary finding of the likelihood of success on the motion to dismiss.
This would circumvent the procedures for resolution of such a motion. Although
it is conceivable that a stay might be appropriate where the complaint was utterly
frivolous, or filed merely in order to conduct a “fishing expedition” or for
settlement value, cf. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741,
95 S.Ct. 1917, 1928, 44 L.Ed.2d 539 (1975), this is not such a case.
Williams, 2010 WL 3522397, at *2 (quoting Gray v. First Winthrop Corp., 133 F.R.D. 39, 40
(N.D. Cal. 1990)). Accordingly, a stay will not “ordinarily be granted to a party who has filed a
garden-variety Rule 12(b)(6) motion” unless that motion “raises an issue such as immunity from
suit, which would be substantially vitiated absent a stay, or unless it is patent that the case lacks
merit and will almost certainly be dismissed.” Williams, 2010 WL 3522397, at *2; see also Ohio
Bell Tel. Co. v. Glob. NAPs Ohio, Inc., No. 2:06-CV-0549, 2008 WL 641252, at *1 (S.D. Ohio
Mar. 4, 2008); see also Peters, 2014 WL 6687146, at *3.
III. ANALYSIS
As set forth above, the existence of a “garden-variety” motion to dismiss is generally
insufficient to justify a stay discovery. Although Defendants are correct that some discovery
efforts may end up being unnecessary if their Motion to Dismiss is granted, this is true of every
motion to dismiss. If the drafters of the Federal Rules of Civil Procedure intended that a Rule
12(b)(6) motion should stay discovery as a matter of course, they would have included a
provision to that effect in the Rules; yet they did not. See, e.g., Williams, 2010 WL 3522397, at
*1–2. Defendants’ favorable view of the merits of their Motion to Dismiss is likewise
insufficient where, as here, the Court cannot conclude that Plaintiff’s claims are frivolous or that
it is highly likely that Defendants’ Motion to Dismiss will be granted. See Dummen NA, Inc. v.
Proven Winners N. Am. LLC, No. 2:16-CV-00709, 2017 WL 4868201, at *1-2 (S.D. Ohio May
3, 2017) (citations omitted) (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 to Dismiss”).
However, Defendants are correct that theirs is not a “garden-variety” Rule 12(b)(6)
motion because it requires resolution of their qualified immunity defense. “If a defendant moves
for dismissal on grounds of qualified immunity, the court must not only determine that issue at
the earliest possible moment, but also stay discovery while the motion is under advisement.”
Roth v. President & Bd. of Trs. of Ohio Univ., No. 2:08-CV-1173, 2009 WL 2579388, at *1
(S.D. Ohio Aug. 18, 2009) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009); Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Lavado v. Keohane, 992
F.2d 601 (6th Cir.1993)). Thus, discovery should be stayed as to claims subject to a possible
qualified immunity defense.
Yet only some of Plaintiff’s claims are subject to a qualified immunity defense.
Plaintiff’s official-capacity claims for injunctive relief will not be affected by the Court’s
immunity ruling. As a result, Defendants will be required to respond to discovery regarding the
official-capacity claims even if the individual-capacity claims are dismissed on qualified
immunity grounds. And the fact that qualified immunity may resolve some of Plaintiff’s claims
does not require a stay of discovery as to all of Plaintiff’s claims. See Roth, 2009 WL 2579388,
at *3 (collecting cases) (“Most courts faced with this issue have ruled in favor of allowing
discovery to proceed on the claims to which qualified immunity does not apply.”); Mitchell v.
Ohio State Univ., No. 2:19-CV-4162, 2020 WL 548326, at *3 (S.D. Ohio Feb. 3, 2020) (“The
Individual Defendants are not entitled to avoid participating in discovery in the entire action
merely because some of Plaintiff’s claims against them may be subject to an immunity
defense.”); Devers v. Mooney, No. 3:12-CV-700-S, 2013 WL 3821759, at *3 (W.D. Ky. July 23,
2013) (“[T]he court does not see how any legitimate purpose would be served by staying
discovery on those official capacity claims pending the resolution of a defense to the individual
capacity claims.”). Indeed, every case the Court was able to locate that expressly analyzed the
impact of an immunity defense on discovery related to non-immunity-implicated claims has held
that such discovery should proceed. Nor have Defendants directed the Court to any caselaw
holding otherwise.1
In sum, neither the raising of a qualified immunity defense on individual-capacity claims
nor the existence of a Rule 12(b)(6) motion to dismiss the official-capacity claims is sufficient
1 Defendants rely on Lavado v. Keohane, 992 F.2d 601 (6th Cir. 1993), which found no abuse of
discretion by a district court in staying discovery altogether when the plaintiff asserted both
individual-capacity claims that were subject to a ruling on qualified immunity and official-
capacity claims that were not; however, it appears that neither the district court nor the appellate
court noted that qualified immunity would apply to only some of Plaintiff’s claims.
grounds to stay discovery as to Plaintiff’s official-capacity claims. Therefore, Defendants have
established only that discovery should be stayed as to Plaintiff’s individual-capacity claims.
IV. DISPOSITION
For the foregoing reasons, Defendants’ Motion to Stay Discovery (ECF No. 15) is
GRANTED IN PART and DENIED IN PART. Discovery that pertains only to Plaintiff’s
individual-capacity claims for money damages is STAYED pending the Court’s ruling on
qualified immunity in resolving Defendants’ Motion to Dismiss (ECF No. 7). All other discovery
may proceed. The undersigned expresses no opinion as to the appropriateness of Plaintiff’s
discovery requests and encourages the parties to meet and confer to resolve any discovery
disputes. If the parties reach an impasse, they must contact the undersigned’s chambers to
request an informal discovery conference prior to filing a discovery motion as provided in the
Preliminary Pretrial Order (ECF No. 14.)
Additionally, Defendants’ request in a footnote in their Reply brief that the Court enter a
protective order declaring that neither of the parties is obligated to respond to written discovery
requests until disposition of Defendants’ Motion to Stay Discovery. (See Defs.’ Reply 1 n.1, ECF
No. 19.) For good cause shown, Defendants’ request is GRANTED. The parties’ deadline for
responding to each other’s written discovery requests is extended to SEPTEMBER 19, 2022.
The parties may agree to further extend this deadline without leave of Court.
IT IS SO ORDERED.
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE