Opinion
CIVIL ACTION NO: 03-0369, SECTION: "T"(1)
May 8, 2003
HEARING ON MOTIONS MOTIONS:
DEFENDANTS' MOTION TO QUASH SUBPOENAS AND DEPOSITIONS AND FOR STAY OF DISCOVERY PENDING RULING ON MOTION TO DISMISS AND COMPLETION OF RULE 26(f) CONFERENCE (Rec. doc. 6)
GRANTED
DEFENDANTS' MOTION TO COMPEL DISCOVERY; FOR SANCTIONS AND ATTORNEY'S FEES (Rec. doc. 9)
DENIED
The plaintiff, Kathryn Barrett Tschirn (Ms. Tschirn), filed this action on February 6, 2003. Ms. Tschirn alleges causes of action for breach of fiduciary duty, wrongful conversion and negligence against her mother, Mary Kathryn Kurzweg ("Ms. Kurzweg"), and her stepfather, Victor Jerome Kurzweg, III ("Mr. Kurzweg"). Ms. Tschirn alleges she was named in the will of her great aunt and the defendants were named as co-executors. Ms. Tschirn alleges acts and omissions by the defendants as co-executors. Rec. doc. 1. The defendants were served on February 19, 2003 and obtained an extension of time to plead until March 31, 2003. Rec. doc. 4.
On March 17, 2003, Ms. Tschirn noticed the depositions of the defendants and Winslow Chadwick for April 8 and 9, 2003. Exhibit B to Rec. doc. 16. On March 31, 2003, the defendants filed a motion to dismiss for lack of subject matter jurisdiction and/or for failure to state a claim or alternatively, for summary judgment. Rec. doc. 5. On April 7, 2003, the defendants filed their motion: (1) to quash subpoenas and depositions; and (2) for a stay of discovery pending a ruling on their motion to dismiss and completion of a Rule 26(f) conference. Rec. doc. 6. The defendants and Mr. Chadwick did not appear for their depositions on April 8 and 9, 2003. Ms. Tschirn filed a motion to compel discovery, for sanctions and attorney's fees. Rec. doc. 9. On April 24, 2003, Ms. Tschirn filed a motion for leave to amend her complaint. Rec. doc. 14. On that same day there was a hearing before the District Court on Ms. Tschirn's motion to continue the defendants' motion to dismiss. Rec. doc. 11 and Exhibit D to Rec. doc. 15. The District Court continued the hearing on the defendants' motion to dismiss until June 4, 2003 and set Ms. Tschirn's motion for leave to amend for the same date with both motions to be heard by the District Court. Exhibit D to Rec. doc. 15. Ms. Tschirn contends she complied with the requirements of Fed.R.Civ.P. 26(f) and the defendants contend there was no compliance.
The issue before the undersigned is whether Ms. Tschirn should be permitted to conduct discovery prior to the District Court's ruling on the defendants' motion to dismiss, or in the alternative, motion for summary judgment. "Rule 56 does not require that any discovery take place before summary judgment can be granted; if a party cannot adequately defend such a motion, Rule 56(f) is his remedy." Washington v. Allstate Insurance Co., 910 F.2d 1281, 1285 (5th Cir. 1990). In Montgomery v. U.S., 933 F.2d 348 (5th Cir. 1991), the defendant filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and a motion for summary judgment. The plaintiff sought to defer consideration of the motion for summary judgment pursuant Fed.R.Civ.P. 56(f) and until after a Fed.R.Civ.P. 26(f) discovery conference. The district court postponed discovery until after consideration of the motion to dismiss. The Fifth Circuit held that the district court did not err in denying the plaintiffs discovery motions.Id. at 350.
Fed.R.Civ.P. 12(b)(6) requires that Ms. Tschirn's factual allegations be accepted as true and that all reasonable inferences be drawn in her favor. 1 James Wm. Moore, et al., Moore's Federal Practice ¶ 12.34[1][b] (3d ed. 1997). At the hearing on defendants' motion the District Court will have Ms. Tschirn's original complaint and should the District Court chose to grant leave to file it, her amended complaint. In opposing the defendants' alternative request for summary judgment, Ms. Tschirn may file an affidavit pursuant to Fed.R.Civ.P. 56(f) stating why she cannot present facts essential to justify her opposition. These provisions prevent any prejudice to Ms. Tschirn, if she is not permitted to proceed with discovery. The District Court commented that the defendants raised substantive and procedural defenses that did not require discovery. Rec. doc. 15, Exhibit D at pp. 11-12. If Ms. Tschirn is allowed to conduct discovery at this time, the parties will incur the expense of litigating over the scope of the discovery and conducting the discovery and this may be unnecessary. At this time Ms. Tschirn has not shown how a lack of discovery prevents her from responding to the motion filed by Mr. and Mrs. Kurzweg.
IT IS ORDERED as follows:
(1) The defendants' motion to quash subpoenas and depositions and for stay of all discovery pending ruling on motion to dismiss and completion of Rule 26(f) conference (Rec. doc. 6) is GRANTED.
(2) The stay of discovery shall be lifted upon the entry of any of the following: (a) an order by the District Court permitting Ms. Tschirn to conduct discovery pursuant to Fed.R.Civ.P. 56(f); (b) an order denying the defendants' motion to dismiss and in the alternative motion for summary judgment; (c) a scheduling order setting a discovery deadline; and (d) any other order by the District Court that requires the parties to proceed with discovery.
(3) Within ten (10) working days of the entry of an order that has the effect of lifting the stay of discovery, the parties shall conduct a conference pursuant to Fed.R.Civ.P. 26(f) and Ms. Tschirn shall initiate the conference.
(4) Ms. Tschirn's motion to compel discovery, for sanctions and for attorney's fees (Rec. doc. 9) is DENIED.