United States District Court, D. South Dakota, Southern Division
G. MATT JOHNSON, and LORA HUBBEL, Plaintiffs,
SHANTEL KREBS, IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE FOR THE STATE OF SOUTH DAKOTA, Defendant. and TERRY LEE LAFLEUR, Intervenor Plaintiff,
ORDER GRANTING MOTION FOR PROTECTIVE ORDER
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
August of 2018, Plaintiffs G. Matt Johnson (Johnson) and Lora
Hubbel (Hubbel) filed a complaint alleging that Defendant
Shantel Krebs (Krebs), in her official capacity as the
Secretary of State for the State of South Dakota, had
improperly denied them and certain other nominees of the
Constitution Party of South Dakota (CPSD) positions as
candidates on the upcoming ballot in November of 2018, and
allegedly had colluded with the Republican Party to keep CPSD
candidates off the ballot through a state court proceeding.
Plaintiffs, who are proceeding pro se, sought preliminary and
permanent injunctive relief. Docs. 1, 7.
moved to dismiss on September 21, 2018, asserting that this
Court lacked jurisdiction because the issues in the case are
moot, the Rooker-Feldman doctrine should apply, and
that issue preclusion barred the relief sought. Docs. 20, 23.
Plaintiffs filed a motion for summary judgment that same day,
asking this Court to order Krebs to stop the early election
process and include the Constitution Party's slate of
candidates on the ballot. Doc. 21. Plaintiffs also asked this
Court to “recognize the transfer of Party Chairmanship
as detailed in the Complaint and supported by the Exhibits in
the Amended Complaint.” Doc. 21 at 3.
Court set a motion hearing to occur on September 27, 2018.
The day before the motion hearing, Terry Lee LaFleur
(LaFleur) filed a separate complaint naming as defendants
Krebs, Hubbel, Johnson and others to assert that LaFleur,
instead of Hubbel, ought to be certified as the CPSD
candidate for Governor of South Dakota and seeking $100
million in damages plus punitive damages and other relief.
LaFleur v. Krebs, 18-CV-4125-RAL, Doc.
On the morning of the hearing, LaFleur filed a motion to
intervene as a party in this case. Doc. 31.
Hubbel, and LaFleur appeared pro se at the hearing, and Krebs
appeared through counsel. This Court granted LaFleur's
motion to intervene but denied the motion for a preliminary
injunction, finding that the likelihood of Johnson, Hubbel,
or LaFleur succeeding on the merits was remote. Doc. 33.
mid-October 2018, Krebs moved to stay any required response
to Johnson and Hubbel's motion for summary judgment. Doc.
35. This Court denied the motion to stay, noting that this
Court's order denying the motion for a preliminary
injunction “may well have resolved many, if not all, of
the issues in this case.” Doc. 40. This Court invited
all parties to advise what remained of any case or
controversy on which this Court should rule. Doc. 40. Johnson
and Hubbel filed a response asking this Court to rule on
whether LaFleur was a “false” intervenor, whether
a prior ruling by Judge Piersol would apply to the 2020
election, and who was CPSD chairman. Doc. 41. LaFleur also
responded, asking, among other things, that this Court
appoint a special prosecutor to investigate the facts of the
case. Doc. 45. LaFleur moved for summary judgment in
mid-November 2015, asking this Court to declare that Mike
Gunn is the chairman of the CPSD, that the CPSD be returned
to the position it was in before its “hostile takeover,
” and that the CPSD “automatically” have
ballot access in 2022. Docs. 46, 47.
November 2018, Krebs received a request for production of
documents and a set of interrogatories from LaFleur. Doc. 50.
Krebs moved for a protective order staying discovery, arguing
that discovery presents an undue burden given her pending
motion to dismiss and the motions for summary judgment by
Johnson, Hubbel, and LaFleur. Doc. 49. Johnson and Hubbel
agreed that discovery should be stayed, Doc. 56, but LaFleur
objected, Docs. 52, 58.
discovery LaFleur has served on Krebs, Johnson, and Hubbel is
premature. Rule 26(d)(1) provides that “[a] party may
not seek discovery from any source before the parties have
conferred as required by Rule 26(f), except in a proceeding
exempted from initial disclosure under Rule 26(a)(1)(B), or
when authorized by these rules, by stipulation, or by court
order.” Fed.R.Civ.P. 26(d)(1). The parties have not yet
met for a Rule 26(f) conference, this case is not exempted
under Rule 26(a)(1)(B), and there is no stipulation or court
order allowing LaFleur to conduct early discovery. Although
the Federal Rules of Civil Procedure allow for expedited
discovery in certain circumstances, see Fed.R.Civ.P.
34, the party requesting such discovery must show good cause,
which LaFleur has failed to do, see Strike 3 Holdings,
LLC v. Doe, No. 18-cv-0771 (DWF/HB), 2018 WL 2278110, at
*2 (D. Minn. May 18, 2018) (explaining that district courts
within the Eighth Circuit generally apply a “good
cause” standard to determine whether to allow expedited
LaFleur's discovery requests were timely, this Court
would still grant Krebs's request for a protective order.
Courts may stay discovery for good cause. Fed.R.Civ.P. 26(c).
Although the filing of a motion to dismiss is not itself good
cause for a stay, TE Connectivity Networks, Inc. v. All
Sys. Broadband, Inc., No. 13-1356 ADM/FLN, 2013 WL
4487505, at *2 (D. Minn. Aug. 20, 2013), courts have
“stayed discovery while a motion that would be
thoroughly dispositive of the claims in the Complaint is
pending.” Sai v. Dep't of Homeland Sec, 99
F.Supp.3d 50, 58 (D.D.C. 2015) (cleaned up). See
also, TE Connectivity, 2013 WL 4487505, at *2
(“[W]here a motion to dismiss otherwise seems likely to
resolve the entire litigation, a stay of discovery may be
appropriate.”). Krebs's motion to dismiss will
likely dispose of this case in its entirety. As this Court
indicated when ruling on the motion for a preliminary
injunction, Johnson, Hubbell, and LaFleur appear to have
little likelihood of success on the merits of their claims.
Doc. 33 at 15-18. This Court also wants to hold a hearing on
the pending motions and to discuss the future of this case
before any discovery commences. Moreover, this case may be
consolidated with LaFleur's other case, LaFleur v.
Krebs, 18-CV-4125-RAL, in which the defendants have yet
to be served. A stay of discovery is appropriate under these
reasons stated above, it is hereby
that Krebs's Motion for Protective Order, Doc. 49, is
granted. Discovery is stayed until this Court rules on
Krebs's motion to dismiss. It is further
that the parties cooperate with this Court's judicial
assistant to schedule a hearing.