User Name: Julianna Wade

Date and Time: Dec 19, 2015

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Job Number: 27306181

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Drive Sunshine Inst. v. High Performance Transp. Enter., 2014 U.S. Dist. LEXIS 158723
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Drive Sunshine Inst. v. High Performance Transp. Enter.

United States District Court for the District of Colorado
November 10, 2014, Decided; November 10, 2014, Filed
Civil Action No. 14-cv-00844-REB-KMT
Reporter
2014 U.S. Dist. LEXIS 158723

DRIVE SUNSHINE INSTITUTE, and CLIFF SMEDLEY,

Plaintiffs,
v.
HIGH
PERFORMANCE
TRANSPORTATION
ENTERPRISE,
MICHAEL
CHEROUTES, ESQ., in his capacity as Director of
HPTE and as an individual, TIM GAGEN, in his capacity
as Chair of the HPTE Board of Directors and as an
individual, KATHY GILLILAND, in her capacity as
Vice-Chair (and at times Acting Chair) of the HPTE
Board of Directors and as an individual, DOUG ADEN,
HPTE Board Member, as an individual, BRENDA
SMITH, HPTE Board Member, as an individual, DON
MARISTICA, HPTE Board Member, as an individual,
GARY REIFF, ESQ., HPTE Board Member, as an
individual, TREY ROGERS, ESQ., HPTE Board
Member, as an individual, JANE HICKEY, in her capacity
as Secretary of the HPTE Board and as an individual,
JOHN SUTHERS, ESQ., in his capacity as Colorado
State Attorney General and as an individual, KATHRYN
E. YOUNG, ESQ., in her capacity as First Assistant
Attorney General and counsel for HPTE and as an
individual, JOHN DOE 1, ESQ., in his capacity within
the Colorado Solicitor General's Office and as an
individual, JORDAN CHASE, ESQ., in his capacity as
Assistant Attorney General and counsel for HPTE and
as an individual, KUTAK ROCK LLP, in its capacity as
counsel for HPTE and as an individual, MICHAEL
THOMAS, ESQ., as counsel for HPTE and as an
individual, THOMAS WEIHE, ESQ., as counsel for
HPTE and as an individual, HOGAN LOVELLS US LLP,
in its capacity as counsel for HPTC and as an individual,
MIKE MATHEOU, ESQ., as counsel for HPTE and as
an individual, DAVID SCOTT, ESQ., as counsel for
HPTE and as an individual, COLORADO
TRANSPORTATION COMMISSION, COLORADO
DEPARTMENT OF TRANSPORTATION, AMY FORD,
in her capacity as HPTE Communications Director and
as an individual, GOLDMAN, SACHS & CO., BANK OF
NEW YORK MELLON TRUST COMPANY, N.A., FITCH
RATINGS, INC., and PLENARY ROADS DENVER LLC,
Defendants.

Prior History: Drive Sunshine Inst. v. High Performance Transp. Enter., 2014 U.S. Dist. LEXIS 142536
(D. Colo., Oct. 7, 2014)

Core Terms
discovery, qualified
proceedings

immunity,

motion

to

stay,

Counsel: [*1] For Drive Sunshine Institute, Cliff

Smedley, Plaintiffs: Karen Ann Hammer, LEAD
ATTORNEY, Karen A. Hammer, Attorney at Law,
Denver, CO.
For High Performance Transportation Enterprise,
Michael Cheroutes, in his capacity as Director of HPTE,
Michael (I) Cheroutes, as an individual, Tim Gagen, in
his capacity as Chair of HPTE, Tim (I) Gagen, as an
individual, Kathy Gilliland, in her capacity as Vice-Chair
(and at times Acting-Chair) of the HPTE Board of
Directors, Kathy (I) Gilliland, as an individual, Doug (I)
Aden, as an individual, Brenda (I) Smith, as an
individual, Don (I) Marostica, as an individual, Gary (I)
Reiff, as an individual, Trey (I) Rogers, as an individual,
Jane Hickey, in her capacity as Secretary of the HPTE
Board, Jane (I) Hickey, in her capacity as an individual,
John Suthers, in his capacity as Colorado State Attorney
General, John (I) Suthers, as an individual, Kathyrn E.
Young, in her capacity as First Assistant Attorney
General and counsel for HPTE, Kathyrn (I) E. Young, as
an individual, John Doe 1, in his capacity within the
Solicitor's General's Office and as an individual, Jordan
(I) Chase, as an individual, Jordan Chase, in his capacity
as Assistant Attorney [*2] General and counsel for
HPTE, Colorado Transportation Commission, Colorado
Department of Transportation, Amy Ford, in her capacity
as HPTE Communications Director, Amy (I) Ford, as an
individual, Defendants: Patrick L. Sayas, LEAD
ATTORNEY, Skippere Stewart Spear, Colorado Attorney
General's Office, Denver, CO.

Julianna Wade

Page 2 of 4
2014 U.S. Dist. LEXIS 158723, *3
For Kutak Rock LLP, in its capacity as counsel for
HPTE, Kutak Rock LLP (I), as an individual, Michael
Thomas, Esq., as counsel for HPTE, Michael (I)
Thomas, as an individual, Thomas Weihe, Esq., as
counsel for HPTE, Thomas (I) Weihe, as an individual,
Defendants: Stephen C. Peters, LEAD ATTORNEY,
Peters Mair Wilcox, Denver, CO.
For Mike Matheou, Esq., as counsel for HPTE, Mike (I)
Matheou, as an individual, Hogan Lovells US LLP, in its
capacity as counsel for HPTE, Hogan Lovells US LLP
(I), as an individual, David Scott, Esq., as counsel for
HPTE, David (I) Scott, as an individual, Defendants:
Tamera Dietrich Westerberg, LEAD ATTORNEY,
Michael L. O'Donnell, Wheeler Trigg O'Donnell, LLP,
Denver, CO.
For Goldman, Sachs & Co., Defendant: Bruce A.
Featherstone, LEAD ATTORNEY, Featherstone
DeSisto, LLC, Denver, CO; Aaron Mark Bell, Aaron M.
Bell, Attorney at Law, Denver, CO.
For Fitch [*3] Ratings, Inc., Defendant: Robert James
Zavaglia, Jr., LEAD ATTORNEY, Katharine Anne
Jensen, Treece Alfrey Musat, P.C., Denver, CO.

2014); "Goldman Sachs' Motion to Stay Discovery

Pending Qualified Immunity Determination and Joinder"
(Doc. No. 53, filed Sept. 30, 2014); and the "State
Defendants' Motion to Stay Proceedings Pending
Determination of Immunity and Standing Issues" (Doc.
No. 71, filed Oct. 14, 2014). Plaintiffs did not file a
response to any of the motions to stay.1 For the following
reasons, the motions to stay are GRANTED.
In their Amended Complaint (Doc. No.4, filed Mar. 24,
2014), Plaintiffs assert three claims against 27
defendants, pursuant to 42 U.S.C. 1983, for violations
of their rights to due process, petition the government,
and free speech under the United States Constitution,
as well as five state law claims for similar violations of
the Colorado Constitution and a number of state
statutes. Plaintiffs' claims are largely premised on
alleged irregularities and improprieties occurring at a
February 19, 2014 public meeting of the board of
Defendant High Performance Transportation Enterprise
("HPTE"), at which bonds designed to finance the
expansion of U.S. Highway 36 between Denver and
Boulder, Colorado were discussed.

ORDER

On September 15, 2014, Defendants Kutak Rock LLP,

Michael Thomas, and Thomas Weihe (the "Kutak Rock
Defendants") arguing, inter alia, that they are entitled to
qualified immunity from Plaintiff's 1983 claims.
Similarly, on September 17, 2014, Defendants HPTE,
Ceroutes, Gagen, Gilliland, Ford, Aden, [*5] Smith,
Marostica, Reiff, Rogers, Hickey, Suthers, Young,
Chase, the Colorado Transportation Committee (CTC),
and the Colorado Department of Transportation (CDOT)
(hereinafter the "State Defendants") filed a separate
Motion to Dismiss, which also argues, inter alia, that
Plaintiff's 1983 claims are properly dismissed based
on Eleventh Amendment and qualified immunity. In the
motions to stay, the State and Kutak Rock Defendants,
as well as Defendant Goldman, Sachs & Co. ("Goldman
Sachs") move for a stay of discovery in this action until
it is determined, by way of a ruling on their motions to
dismiss, whether the State and Kutak Rock Defendants
are entitled to qualified immunity.

This matter is before the court on "Defendant Kutak

Rock LLP, Michael Thomas, and Thomas Weihe's
Partially Unopposed Motion to Stay Pending Qualified
Immunity Determination" (Doc. No. 46, filed Sept. 29,

Immunity provisions, whether qualified, absolute or

pursuant to the Eleventh Amendment, are meant to free
officials from the concerns of litigation, including
avoidance of disruptive discovery. See Ashcroft v. Iqbal,

For Plenary Roads Denver LLC, Defendant: Ronald L.

Fano, LEAD ATTORNEY, Spencer Fane Britt & Browne,
LLP-Denver, Denver, CO.
For The Bank of New York Mellon Trust Company, N.A.,
Defendant: Dale C. Christensen, Jr., LEAD ATTORNEY,
Brian Paul Maloney, Seward & Kissel, New York, NY.
Judges: Kathleen M. Tafoya, United States Magistrate
Judge.
Opinion by: Kathleen M. Tafoya

Opinion

Plaintiffs' Response to the State Defendants' Motion to Stayi.e. the most recently-filed motion to staywas [*4] due no
later than November 7, 2014. See D.C.COLO.LCiv 7.1(d); Fed. R. Civ. P. 6(d). Despite representing to the State Defendants
that they opposed a stay of discovery, Plaintiffs did not file a response on or before that date.

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Page 3 of 4
2014 U.S. Dist. LEXIS 158723, *5
556 U.S. 662, 685, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) (citing Siegert v. Gilley, 500 U.S. 226, 236, 111 S.
Ct. 1789, 114 L. Ed. 2d 277 (1991) (Kennedy, J.,
concurring in judgment)); see also Workman v. Jordan,
958 F.2d 332, 335 (10th Cir. 1992) (noting that qualified
immunity, if successful, protects an official both from
liability and the ordinary burdens of litigation, including
far-ranging discovery) (citing Harlow v. Fitzgerald, 457
U.S. 800, 817-18, 102 S. Ct. 2727, 73 L. Ed. 2d 396
(1982)). As explained by the Court in Iqbal, there are
serious and legitimate reasons for this protection:
If a Government official is [*6] to devote time to his
or her duties, and to the formulation of sound and
responsible policies, it is counterproductive to
require the substantial diversion that is attendant to
participating in litigation and making informed
decisions as to how it should proceed. Litigation,
though necessary to ensure that officials comply
with the law, exacts heavy costs in terms of
efficiency and expenditure of valuable time and
resources that might otherwise be directed to the
proper execution of the work of the Government.
The costs of diversion are only magnified when
Government officials are charged with responding
to [the burdens of litigation discovery].
Id. at 685.
The Federal Rules of Civil Procedure do not expressly
provide for a stay of proceedings. See String Cheese
Incident, LLC v. Stylus Shows, Inc., 02-CV-01934-LTB
-PA, 2006 U.S. Dist. LEXIS 97388, 2006 WL 894955, at
*2 (D. Colo. March 30, 2006). Fed. R. Civ. P. 26 does,
however, provide that
[a] party or any person from whom discovery is
sought may move for a protective order in the court
where the action is pending . . . . The court may, for
good cause, issue an order to protect a party or
person
from
annoyance,
embarrassment,
oppression, or undue burden or expense . . . .
Fed. R. Civ. P. 26(c). Moreover,
[t]he power to stay proceedings is incidental to the
power inherent [*7] in every court to control the
disposition of the causes on its docket with economy
of time and effort for itself, for counsel, and for
litigants. How this can best be done calls for the
exercise of judgment, which must weigh competing
interests and maintain an even balance.

Landis v. N. Am. Co., 299 U.S. 248, 254-55, 57 S. Ct.

163, 81 L. Ed. 153 (1936) (citing Kansas City S. Ry. Co.
v. United States, 282 U.S. 760, 763, 51 S. Ct. 304, 75 L.
Ed. 684 (1931)). An order staying discovery is thus an
appropriate exercise of this court's discretion. Id.
Additionally, "a court may decide that in a particular
case it would be wise to stay discovery on the merits
until [certain challenges] have been resolved." 8A
Charles Alan Wright, Arthur R. Miller & Richard L.
Marcus, Federal Practice and Procedure 2040, at 198
(3d ed. 2010). Although a stay of all discovery is
generally disfavored, see Bustos v. U.S., 257 F.R.D.
617, 623 (D. Colo. 2009), a stay may be appropriate if
"resolution of a preliminary motion may dispose of the
entire action." Nankivil v. Lockheed Martin Corp., 216
F.R.D. 689, 692 (M.D. Fla. 2003). See also Vivid Techs.,
Inc. v. American Science & Eng'g, Inc.., 200 F.3d 795,
804 (Fed. Cir. 1999) ("When a particular issue may be
dispositive, the court may stay discovery concerning
other issues until the critical issue is resolved"). When
considering a stay of discovery, this court considers: (1)
the plaintiff's interests in proceeding expeditiously with
the civil action and the potential prejudice to plaintiff of a
delay; (2) the burden on the defendants; (3) the
convenience [*8] to the court; (4) the interests of persons
not parties to the civil litigation; and (5) the public
interest. See String Cheese Incident, 2006 U.S. Dist.
LEXIS 97388, 2006 WL 894955, at *2 (citing FDIC v.
Renda, No. 85-2216-O, 1987 U.S. Dist. LEXIS 8305,
1987 WL 348635, at *2 (D. Kan. 1987)).
Because Plaintiffs did not respond to the motions to
stay, their interest in proceeding expeditiously with this
matter does not weigh heavily in the court's analysis. In
any event, the court finds that this interest is overcome
by the burden the State and Kutak Rock Defendants
might face if they were forced to proceed with discovery
in spite of well-established precedent supporting a stay
when an immunity defense has been raised. Further,
although qualified immunity is a potential defense only
as to Plaintiffs' individual-capacity claims under 1983,
see Rome v. Romero, 225 F.R.D. 640, 643-644 (D.
Colo. 2004), the Supreme Court has recognized:
It is no answer to these concerns [of avoiding
disruptive discovery] to say that discovery can be
deferred while pretrial proceedings continue for
other defendants. It is quite likely that, when
discovery as to the other parties proceeds, it would
prove necessary for petitioners and their counsel to
participate in the process to ensure the case does

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Page 4 of 4
2014 U.S. Dist. LEXIS 158723, *8
not develop in a misleading or slanted way that
causes prejudice to their position. Even if petitioners
are [*9] not yet themselves subject to discovery
orders, then, they would not be free from the
burdens of discovery.
Iqbal, 556 U.S. at 685. As such, proceeding with
discovery as to claims that are not subject to the
assertion of qualified immunity is not a permissible
alternative. Additionally, discovery should be stayed in
the case as a whole even though only some of the
defendants are asserting qualified immunity as a
defense.
The third String Cheese factor also favors a stay.
Although the court has an interest in managing its
docket by seeing cases proceed expeditiously, any
inconvenience that might result from rescheduling the
docket is outweighed by the potential waste of judicial
and party resources that would result from allowing
discovery to proceed, only to have the case dismissed
in its entirety on the grounds raised in the motions to
dismiss. See Nankivil, 216 F.R.D. at 692 (a stay may be
appropriate if "resolution of a preliminary motion may
dispose of the entire action.").
Finally, neither the interest of nonparties nor the public
interest in general prompt the court to reach a different

result. Accordingly, on balance, the court finds that a

stay of discovery is appropriate in this case. Therefore,
it is
ORDERED that the "Defendant [*10] Kutak Rock LLP,
Michael Thomas, and Thomas Weihe's Partially
Unopposed Motion to Stay Pending Qualified Immunity
Determination" (Doc. No. 46); "Goldman Sachs' Motion
to Stay Discovery Pending Qualified Immunity
Determination and Joinder" (Doc. No. 53); and the
"State Defendants' Motion to Stay Proceedings Pending
Determination of Immunity and Standing Issues" (Doc.
No. 71) are GRANTED. All discovery in this matter is
hereby STAYED and the Scheduling Conference set for
November 18, 2014 is VACATED. The parties shall file
a Joint Status Report within ten days of a ruling on the
motions to dismiss, if any portion of the case remains
pending, to advise if the Scheduling Conference should
be set.
Dated this 10th day of November, 2014.
BY THE COURT:
/s/ Kathleen M. Tafoya
Kathleen M. Tafoya
United States Magistrate Judge

Julianna Wade