Free Motion to Stay - District Court of Delaware - Delaware

Case 1:06-cv-00053-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) Plaintiffs, ) ) v. ) ) HELEN LOHMAN1, SCOTT MORGAN2, ) TOM CARVAN, JAY PLUMMER ) and JOE FIELDS ) ) Defendants. ) JAMES A. WILSON, et al.,

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DEFENDANTS' MOTION TO STAY DISCOVERY COME NOW, defendants Helen Lowman, Howard Morgan, Tom Carven, Jay Plummer, and Joseph Fields ("Defendants"), by and through undersigned counsel, and hereby respectfully request that this Court stay discovery in this matter. In support of their motion, Defendants allege as follows: 1. Numerous pro se plaintiffs commenced this action on January 27, 2006

claiming that Defendants have misappropriated inmate commissary funds. Over the course of the lawsuit, numerous plaintiffs have withdrawn from the suit or have been dismissed by the Court after failing to respond to the Court's Rule to Show Cause Order requesting that they contact the Court. (D.I. 57, 64). Nine plaintiffs remain. 2. Plaintiffs filed a motion for temporary restraining order on February 17,

2006. The Court issued two Orders on March 17, 2006 allowing service to proceed and denying Plaintiffs motion for temporary restraining order. (D.I. 24, 25).

1 2

Correct spelling is Helen Lowman. No such person exists at SCI, there is, however, a Howard S. Morgan.

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3.

In its denial of the motion for temporary restraining order, the Court held

that "the problem with plaintiffs' pending motion is that they have not demonstrated a likelihood of success on the merits." (D.I. 25 at 2). "Protected property interests stem from an independent source such as state laws or understandings that secure certain benefits and that support claims of entitlement to those benefits. (citation omitted). Here, the plaintiffs have not provided anything to the Court to support the proposition that they have a valid property interest in the prison commissary trust fund." (D.I. 25 at 3). 4. On July 31, 2006, Defendants filed a Motion to Dismiss based on that very

argument, that is that the plaintiffs do not have a property interest in the commissary fund and thus have no valid constitutional claim. (D.I. 69, 70). On or about July 18, 2006, Plaintiff Wilson filed a Motion to Amend which was allowed by the Court on August 16, 2006. (D.I. 72). On September 14, 2006, Defendants filed a response to Plaintiff Wilson's amendment to the Complaint requesting that it also be dismissed for failure to state a claim. (D.I. 76). On November 22, 2006, the Court issued an Order holding that the Motion to Dismiss shall be treated as a Motion for Summary Judgment and allowing supplemental evidence until December 8, 2006. (D.I. 79). 5. On December 15, 2006, the case was transferred to Magistrate Judge Mary

Pat Thynge following the elevation of Judge Jordan to the Third Circuit and pending appointment of a new judge to fill the vacancy. (D.I. 81). 6. Plaintiffs have recently filed several discovery requests, including two

Requests for Production of Documents (D.I. 86, 90), Requests for Admissions (D.I. 89) and a Motion for Leave to Depose all Defendants. (D.I. 91). Defendants have attached

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D.I. 90 as a hard copy does not appear to have been filed with the Court. See Exhibit "A". 7. Plaintiffs' lack of good faith is demonstrated in the requests. The

discovery requests are extensive and seek information as far back as 1995.

Many of the

requests are completely irrelevant to the Plaintiffs' allegations and seek disclosure of information that inmates are not generally entitled to for security and privacy reasons. For example, in one request, plaintiffs have the gall to ask where the keys to the inmate commissary account are located. See Exhibit "A" at #13. 8. The purpose of Rule 12 motion practice is to promote judicial economy by

testing the legal sufficiency of a claim prior to a Defendant formally answering. Plaintiff unreasonably demands that Defendants engage in extensive discovery before the Court has determined their claims have merit and before Defendants have even answered the Complaint. 9. Counsel appreciates the special circumstances created by the vacancy of

Judge Jordan and, under these circumstances, would not generally be opposed to pursuing discovery despite the pending motion to dismiss. The nature of this case and the nature of the discovery requests, however, create a particularly heavy burden on Defendants. As discussed above, the discovery requests are not at all reasonable and, with multiple plaintiffs, have the potential to become even more burdensome. Further, counsel has extensively researched the issue and feels very strongly that there is no constitutional claim here and that the litigation is without merit. 10. Additionally, while this case is purportedly filed by multiple plaintiffs, all

filings are done only by plaintiff Wilson, often stating "plaintiffs" but always only signed

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by plaintiff Wilson. (See D.I. 6, 32, 71, 85, 91). 3 The case has not been certified as a class action and Plaintiff Wilson has not been named as a representative of a class of plaintiffs, nor does counsel believe he would qualify as such. 10. Defendants respectfully request that discovery in this matter be stayed

until such time as the case is reassigned to the judge who fills the vacancy left by Judge Jordan, or in the alternative, until such time as a decision is rendered on the Motion to Dismiss/Summary Judgment. STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Stacey Xarhoulakos_____ Stacey Xarhoulakos, 4667 Deputy Attorney General 820 North French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected] Attorney for Defendants

Dated: April 24, 2007

With the exception of the original Complaint which included an attached sheet of signatures. Counsel also does not include filings that would only be relevant to Wilson and thus appropriately only signed by Wilson.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JAMES A. WILSON, et al., Plaintiffs, v. HELEN LOHMAN, SCOTT MORGAN, TOM CARVAN, JAY PLUMMER and JOE FIELDS Defendants. ) ) ) ) ) ) ) ) ) ) )

C.A. No. 06-053-***

7.1.1 CERTIFICATE OF COUNSEL Undersigned counsel hereby certifies, pursuant to Local Rule 7.1.1, that: 1. Plaintiffs James Wilson, Gilbert Williams, Jerome Green, Jose Serpa,

William Coleman, Jerel Custis, Fred Newsome, Deshawn Tatman, and Marvin Smith are currently incarcerated and it is not practical for undersigned counsel to communicate with them concerning Defendants' Motion to Stay Discovery. 2. Therefore, undersigned counsel assumes that the Motion is opposed. STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Stacey Xarhoulakos_____ Stacey Xarhoulakos, 4667 Deputy Attorney General 820 North French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected] Attorney for Defendants

Dated: April 24, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JAMES A. WILSON, et al., Plaintiffs, v. HELEN LOHMAN, SCOTT MORGAN, TOM CARVAN, JAY PLUMMER and JOE FIELDS Defendants. ) ) ) ) ) ) ) ) ) ) )

C.A. No. 06-053-***

ORDER This day of , 2007,

WHEREAS, Defendants having moved to stay discovery; and WHEREAS, there being good cause shown for the granting of such motion; IT IS HEREBY ORDERED, that Defendants' Motion to Stay Discovery shall be granted and Discovery in this matter shall be stayed until such time as a decision is rendered on Defendants' Motion to Dismiss.

Magistrate Judge Mary Pat Thynge

__________________________________

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CERTIFICATE OF SERVICE I hereby certify that on April 24, 2007, I electronically filed Defendants' Motion to Stay Discovery with the Clerk of Court using CM/ECF. I hereby certify that on April 24, 2007, I have mailed by United States Postal Service, the document to the following non-registered participants: James Wilson, Gilbert Williams, Jerome Green, Jose Serpa, William Coleman, Marvin Smith, DeShawn Tatman, Jerel Custis, and Fred Newsome.

/s/ Stacey Xarhoulakos Deputy Attorney General Department of Justice 820 N. French St., 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected]

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