Free Reply to Response to Motion - District Court of Arizona - Arizona

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Debra A. Hill, 012186 Ronda R. Fisk, 022100 OSBORN MALEDON, P.A. 2929 North Central Avenue Suite 2100 Phoenix, Arizona 85012-2793 (602) 640-9000 Attorneys for Defendant/Counterclaimant Global Missions and Defendants El Shaddai Ministries, Second Chance Ministries and Michael Cambra

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Estate of Joseph J. Studnek, Plaintiff, v. Ambassador of Global Missions UN Limited His Successors, et al., Defendants. Ambassador of Global Missions UN Limited His Successors, Counterclaimant, v. Estate of Joseph J. Studnek, Counterdefendant. Pursuant to Fed. R. Civ. P. 26(c), Defendants El Shaddai Ministries, Second Chance Ministries and Michael Cambra request that the Court issue a protective order and temporarily stay the discovery sought from Wells Fargo Bank as to these defendants until the Court has ruled on their motions to dismiss. Plaintiff's response totally ignores the fact that these defendants have motions to dismiss pending before DEFENDANTS' REPLY IN SUPPORT OF THEIR MOTION TO QUASH OR FOR PROTECTIVE ORDER RE DOCUMENT SUBPOENA TO WELLS FARGO, N.A. No. CIV-04-595-PHX-MHM

Case 2:04-cv-00595-MHM

Document 117

Filed 05/09/2006

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this Court.1 Indeed, the cases cited by plaintiff are distinguishable from the facts here because those cases did not involve parties that had motions to dismiss pending when discovery was sought. Case law makes it clear that the Court has the inherent power to temporarily stay discovery as to these three defendants until the motions to dismiss are ruled upon. Wenger v. Monroe, 282 F.3d 1068, 1077 (9th Cir. 2002) (trial court could grant protective order precluding plaintiff from conducting additional discovery pending resolution of defendant's motion to dismiss); McCabe v. Foley, 233 F.R.D. 683, 687 (M.D. Fla. 2006) (temporary stay of discovery was warranted in shareholder's derivative action pending resolution of defendants' motion to dismiss); Port Dock and Stone Corp. v. Oldcastle Northeast, Inc., 2006 WL 897996 (E.D.N.Y. March 31, 2006) (temporary stay of discovery granted pending ruling on motion to dismiss). In deciding whether to stay discovery pending resolution of a pending motion, the court must balance the harm produced by the delay in discovery against the possibility that the motion will be granted and entirely eliminate the need for such discovery. McCabe, 233 F.R.D. at 685. As we pointed out in our Motion to Quash or for Protective Order, a "preliminary peek" at the motions to dismiss will reveal that defendants have raised meritorious challenges to the legal sufficiency of the Second Amended Complaint. Further, the plaintiff will not be prejudiced by a temporary delay in discovery while these potentially dispositive motions are decided. Plaintiff's allegations are directed primarily against defendants Global Missions and Larry Williams, who have not raised any objection to the Wells Fargo subpoena and deposition, and presumably Wells Fargo either has or shortly will produce these records to plaintiff. If the Court does not rule on the pending motions to dismiss in sufficient time for plaintiff to In addition, plaintiff ignores these defendants' argument that they have never conferred with the plaintiff as set forth under Fed. R. Civ. P. 26(f) and therefore discovery as to these defendants is premature, pursuant to Fed. R. Civ. P. 26(d).
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obtain these documents before the June 1 discovery cutoff, the Court has already indicated that it would be amenable to a request by any party to extend the discovery deadline.2 Finally, if the motions to dismiss are granted, the discovery with respect to these three defendants will no longer be necessary. Plaintiff admits that it is seeking this discovery to pursue its fraud claim against these three defendants. If the fraud claim against these defendants is dismissed, however, the requested documents are no longer relevant.3 For these reasons, Defendants El Shaddai, Second Chance and Michael Cambra request that the Court issue a protective order and temporarily stay discovery concerning the requests for documents from Wells Fargo Bank as to these three defendants until the Court rules on their pending motions to dismiss.

Defendant Global Missions anticipates that it will file a motion to extend the discovery deadlines as well. Until the motions to dismiss are ruled upon, it is difficult to determine the scope of the allegations and the discovery that will actually be necessary. Moreover, no depositions have been taken in this case and the parties need additional time to conduct discovery. Plaintiff also claims that these documents are relevant to the pending motions to dismiss. If plaintiff wished to conduct additional discovery prior to responding to the motions to dismiss, plaintiff should have requested additional time to file his response to the motions so that he could conduct additional discovery, pursuant to Fed. R. Civ. P. 56(f). Plaintiff failed to do so, however, and those motions are now fully briefed. If the motions to dismiss are granted, this discovery will no longer be necessary.
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DATED this 9th day of May, 2006. OSBORN MALEDON, P.A.

By s/Debra A. Hill Debra A. Hill Ronda R. Fisk 2929 North Central, Suite 2100 Phoenix, Arizona 85012-2793 Attorneys for Defendant/ Counterclaimant Global Missions and Defendants El Shaddai Ministries, Second Chance Ministries and Michael Cambra

CERTIFICATE OF SERVICE I hereby certify that on May 9, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: · Bradley D. Weech · Jeremy S. Geigle I hereby certify that on May 9, 2006, I served the attached document by handdelivery on the Honorable Mary H. Murguia, United States District Court, Sandra Day O'Connor U.S. Courthouse, Suite 525, 401 West Washington Street, SPC 53, Phoenix, Arizona 85003-2154.

s/Karen L. McClain
1252310_1

Case 2:04-cv-00595-MHM

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