United States District Court, W.D. Wisconsin
JASON BRUZEK, HOPE KOPLIN and NEIL MILLER, individually and on behalf of all others similarly situated, Plaintiffs,
HUSKY ENERGY INC. and SUPERIOR REFINING COMPANY, LLC, Defendants.
STEPHEN L. CROCKER MAGISTRATE JUDGE.
April 26, 2018, an explosion and subsequent fire occurred at
the “Husky Superior refinery” in Superior,
Wisconsin. Currently, there are three federal lawsuits in
this court arising out of that incident, including this
proposed class action. Before the court is defendant Superior
Refining Company's motion to stay discovery (dkt. 67-69),
which plaintiffs oppose (dkts. 71-72). For the reasons
stated below, that motion is denied.
who are residents of Superior, filed this lawsuit on August
20, 2018 (dkt. 1). Defendants responded with two dismissal
motions on October 31, 2019 (dkts. 20 & 22), which
prompted a November 29, 2018 amended complaint (dkt. 29) that
mooted the dismissal motions. In the parties' joint Rule
26(f) report (dkt.28), defendants reported their intent to
file new dismissal motions and to request a discovery stay.
As a result, at the November 30, 2018 telephonic preliminary
pretrial conference, the court set a September 20, 2019
deadline for plaintiffs' class certification motion and
set jury selection and trial for October 5, 2020, but did not
set the other usual dates, such as a deadline to file
dispositive motions (which ordinarily would be six months
before trial in a class action) or a discovery cutoff date
(which ordinarily would be about six or seven weeks before
trial). See dkt. 36. As they predicted, defendants
promptly filed dismissal motions (dkts. 41 & 43) and a
motion to strike the class allegations (dkt. 47). They did
not, however, move to stay discovery.
Taylor Mayr, a worker injured in the incident, filed his own
lawsuit against the same two defendants on November 7, 2018,
although he subsequently dropped his claim against HEI.
See Case No 18-cv-917-wmc, dkts. 1, 4 and 23. On
March27, 2019, SRC filed a motion to dismiss in Mayr
(dkt. 26), which went UA to the court on April 29, 2019 (dkt.
40). At the April 30, 2019 telephonic preliminary pretrial
conference, the court set a schedule that included an April
30, 2020 discovery cutoff, a June 1, 2020 deadline to file
dispositive motions, and a November 2, 2020 trial date. Dkt.
42. Notably, the court stayed discovery “until the
court rules on the pending motion to dismiss or until July
15, 2019, whichever comes first.” Id. at
The court imposed this dichotomous discovery stay pursuant to
a tweak in the court's civil scheduling templates in
early 2019. This tweak had not been in place when the court
held the preliminary pretrial conference in the instant case.
approach is the court's attempt to balance the
parties' competing views about how to proceed in the face
of early-filed dismissal motions, and it takes into account
all of the competing case law cited by the parties in their
briefs on defendants' motion to stay. As a starting
point, the court agrees that defendants usually should
receive some front-end shelter from discovery while certain
types of dismissal motions are pending, but only if the
motions are filed before the court sets the schedule. If the
motions are filed before the court sets the schedule at the
preliminary pretrial conference, then the court will impose a
discovery stay that will end about two months after the
defendant files its reply brief on dismissal. The length of
the stay is based on the judges' intent to rule on
dispositive motions within two months after the they come
under advisal to the court. To ensure that neither side is
prejudiced by such a stay, the court accounts for it by
setting a schedule that is at least two months longer than
otherwise would be the case. That's why the court does
not usually stay discovery when a defendant files a
dismissal motion after the preliminary pretrial conference: a
stay would interfere with both sides' ability timely to
take the discovery they need for motions practice, which is
tightly scheduled in this court.
also why the discovery stay is an either/or proposition: the
judges in this court are very busy, so they don't always
rule on dispositive motions within two months. At that point,
the court allows discovery to begin anyway, because the court
does not intend to move the other dates it set at the
preliminary pretrial conference. Therefore, in the
Mayr lawsuit, the discovery stay ended on July 15,
2019 even though the presiding judge has not yet ruled on
SRC's dismissal motion.
instant case, the court eschewed setting a full schedule in
light of defendants' announcement that they intended to
file a motion to stay discovery. The court set a few
important dates-the September 20, 2019 class certification
motion deadline and the October 5, 2020 trial-as
placeholders, anticipating that the dismissal motions would
have been resolved in the ordinary course. Defendants then
filed their motions to dismiss, but they never filed a motion
to stay discovery. Therefore, discovery has never been stayed
in this lawsuit. Not ever.
the court had stayed discovery, either on its own motion or
on a timely filed motion by defendants, it would have
employed the procedure that it used in Mayr:
discovery would have been stayed for two months following the
submission of defendants' reply brief in support of
dismissal. Such a hypothetical stay would have ended on or
about April 4, 2019. As matters stand now, defendants have
benefitted from an informal six month discovery. That ends
court intends to keep the October 5, 2020 trial date,
although it probably cannot salvage the September 20, 2019
deadline to file class certification motions. In light of
this, all parties must attend to their discovery obligations
promptly and in good faith.
time, the court is not going to address SRC's specific
challenges to plaintiffs' discovery requests. Instead,
the parties have one week, until August 20, 2019 to meet, to
confer and to agree on how discovery shall proceed. The court
will referee any remaining discovery disputes at a telephonic
hearing on August 22, 2019 at 3:30 p.m., at which Rule 37(a)
cost shifting will occur and Rule 37(b) sanctions will be
imposed if the court determines that a party has not
adequately fulfilled its obligations as set forth in this
Defendant SRC's motion to stay discovery is DENIED.
later than August 20, 2019, the parties shall meet, confer,