STIPULATED MOTION AND ORDER TO STAY DISCOVERY AND DISCOVERY MOTION DEADLINE PENDING RESOLUTION OF DEFENDANT'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(h)(3), OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT

THOMAS S. ZILLY, District Judge.

INTRODUCTION

The parties in the above-entitled action, by and through their attorneys of record, hereby stipulate and agree that good cause exists to stay discovery and postpone the upcoming discovery motions filing deadline pending the Court's resolution of the government's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(h)(3), or, in the Alternative, for Partial Summary Judgment (Motion to Dismiss). See Dkt. 40.

The parties request a stay of discovery and postponement of the discovery motions filing deadline because the government's Motion to Dismiss is potentially dispositive of this action and they agree that the legal claims set forth in the motion can be resolved without additional discovery. The Motion to Dismiss is noted for April 27, 2018; discovery motions filing deadline is April 19, 2018 and the discovery deadline is May 28, 2018. See Dkt. 31. Absent a stay of discovery, the parties anticipate that over the next two months, they will (1) depose several of Plaintiff's medical treatment providers (most of whom are located in Oregon), (2) depose each other's expert witnesses (including Plaintiff's prison expert, who is located in Louisiana), and (3) incur additional expert witness costs, including the government's Fed. R. Civ. P. 35 examination of Plaintiff. The parties agree that this particularly costly phase of discovery will likely have no bearing on the issues before the Court on the government's Motion to Dismiss, and, if the Court grants the government's motion, it would be superfluous. Accordingly, the parties submit that good cause supports a stay of discovery and postponement of the discovery motions filing deadline until the Court rules on the government's pending Motion to Dismiss.

STATEMENT OF FACTS

A. The Government's Motion to Dismiss

The government's Motion to Dismiss seeks dismissal of Plaintiff's Third Amended Complaint (TAC) pursuant to Fed. R. Civ. P. 12(h)(3) due to lack of subject matter jurisdiction over Plaintiff's Federal Tort Claims Act (FTCA) claims. See generally Dkt. 40. The government contends that even if the Court were to accept Plaintiff's allegations as true, he cannot meet his threshold burden of proving that the Court has subject matter jurisdiction over his claims, which, the government argues, are precluded by the Inmate Accident Compensation Act (IACA). See id. If the Court agrees with the government, Fed. R. Civ. P. 12(h)(3) mandates dismissal of Plaintiff's TAC.

Alternatively, the Motion to Dismiss seeks partial dismissal for lack of subject matter jurisdiction based on the discretionary function exception to the FTCA, and partial summary judgment on statute of limitations grounds. See generally Dkt. 40. If the Court grants the Motion to Dismiss on either of these bases, the parties agree that it will materially reduce the scope of this litigation and thus the scope of discovery.

B. The Parties' Upcoming Discovery

The parties have recently exchanged expert witness disclosures and will be moving forward shortly with expert and final fact witness depositions. The depositions will include several medical witnesses—up to five of whom are located in Portland, Oregon—and Plaintiff's prison expert, who resides in Louisiana. Additionally, Plaintiff has agreed to appear for a Fed. R. Civ. P. 35 physical examination with the government's expert podiatrist prior to the close of discovery. Thus, the parties anticipate that they will incur substantial, potentially unnecessary costs over the next two months if discovery is not stayed while the Court decides whether it has subject matter jurisdiction over Plaintiff's TAC.

DISCUSSION

A. Standard for Stay of Discovery

Fed. R. Civ. P. 26(c)(1)(A) provides that a "court may, for good cause, issue an order to protect a party or person from . . . undue burden or expense, including . . . forbidding [] discovery." Id. The Ninth Circuit has recognized that district courts have "wide discretion in controlling discovery," which includes staying discovery until the resolution of a dispositive motion. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988); see also Orchid Biosciences, Inc. v. St. Louis Univ., 198 F.R.D. 670, 672 (S.D. Cal. 2001) (internal citations omitted) (courts have "broad discretion to stay discovery in a case while a dispositive motion is pending."). When additional discovery would not affect the court's decision on the pending dispositive motion, a "stay furthers the goal of efficiency for the court and litigants." Little, 863 F.2d at 685.

Here, the parties stipulate and agree that good cause warrants a stay of discovery because the Court can decide the government's Motion to Dismiss without them engaging in further discovery. Additionally, the parties submit that a stay of discovery furthers the Court's and parties' shared goal of efficiency by allowing the Court to determine whether Plaintiff has any viable claims—and, if so, the scope of any remaining litigation—before the Court or the parties expend additional resources on potentially unnecessary matters. Accordingly, the parties request that the Court enter a stay of discovery.

The parties also request that the Court postpone the upcoming discovery motions filing deadline (April 19, 2018), which will lapse prior to the noting date for the government's Motion to Dismiss. If the Court denies the government's motion, in whole or in part, the parties respectfully request that the Court allow them to propose a new discovery motions filing deadline and discovery deadline, and, if necessary, a new trial date and pretrial deadlines.

CONCLUSION

For the reasons stated above, parties jointly request that the Court stay discovery and postpone the upcoming discovery motions filing deadline pending the Court's resolution of the government's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(h)(3), or, in the Alternative, for Partial Summary Judgment. A proposed form of Order is attached hereto.

ORDER

The parties having so stipulated and agreed, it is hereby ORDERED that:

The parties' Stipulated Motion, docket no. 42, is GRANTED; and

Discovery is stayed and the discovery motions filing deadline is postponed pending the resolution of the Defendant's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(h)(3), or, in the Alternative, for Partial Summary Judgment ("Motion to Dismiss") (Dkt. 40); and

If the Court denies the Defendant's Motion to Dismiss, in whole or in part, the parties shall, within thirty (30) days of the Court's order denying the Motion to Dismiss, jointly propose a new discovery motions filing deadline and discovery deadline, and, if necessary, a new trial date and pretrial deadlines.