United States District Court, D. Utah, Central Division
Nuffer District Judge.
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT SOUTH
JORDAN CITY'S MOTION TO BIFURCATE DISCOVERY (ECF NO.
J. Furse Magistrate Judge.
South Jordan City (“South Jordan”) moves to
bifurcate discovery regarding the pending Monell
claim asserted against it into two phases: first, whether a
constitutional violation caused the allege harm, and then
second, whether the South Jordan bears responsibility for
that harm, i.e. whether such violations occurred as a matter
of custom, policy, or practice. (ECF No. 141.) South Jordan
cites Federal Rule of Civil Procedure 42(b) as the basis for
its Motion, which allows for bifurcation of trial “in
furtherance of convenience or to avoid prejudice, or when
separate trials will be conducive to expedition and
economy.” South Jordan does not seek to bifurcate
trial, only discovery. Bifurcation under Rule 42 is not
“‘the norm or even a common
occurrence.'” Bonham v. GEICO Cas. Co.,
No. 15-CV-02109-MEH, 2016 WL 26513, at *1 (D. Colo. Jan. 4,
2016) (unpublished) (quoting The Marianist Province of
the United States, Inc. v. Ace USA, No.
08-cv-01760-WYD-MEH, 2010 WL 2681760, at *1 (D. Colo. July 2,
2010) (unpublished) (citing Fed.R.Civ.P. 42(b) advis. comm.
notes (noting that bifurcation should not be routinely
plaintiffs maintain pending claims both against municipal
employees and municipalities for constitutional violations,
courts will sometimes bifurcate the portion of discovery
concerning whether the municipality has a custom, policy, or
practice of violating a certain constitutional right and
proceed to summary judgment to permit a decision on qualified
immunity issues as soon as possible. Prior to Pearson v.
Callahan, 555 U.S. 223, 236 (2009), resolution of the
qualified immunity question required decision of
whether the plaintiff's constitutional rights were
violated. Thus bifurcation frequently allowed for resolution
of both the qualified immunity decision at the earliest
possible point in the litigation as required,
Pearson, 555 U.S. at 232, and eliminated the
Monell claim because the alleged constitutional
violation was determined not to violate the Constitution.
Some cases did not follow that formula because while the
individual employee actions did not violate the Constitution,
“the cumulative effect of what the[ employees] did
pursuant to the practice or policy of the County could be a
violation, and . . . Monell does not require that a
jury find an individual defendant liable before it can find a
local governmental body liable.” Garcia v. Salt
Lake Cty., 768 F.2d 303, 310 (10th Cir. 1985).
post-Pearson era, many claims against municipalities
go forward without any claims against individuals because
courts regularly skip the question of whether a
constitutional violation occurred and move straight to the
question of whether the alleged constitutional right was
clearly established at the time of the assumed violation.
See Gadd v. Campbell, 712 Fed.Appx. 796, 799 (10th
Cir. 2017) (unpublished) (skipping to the second prong to
dismiss the individuals based on qualified immunity). In this
case, the municipal employees have either been dismissed or
prohibited from being added to the case. Thus the only
remaining claim involving state action is the Monell
claim against South Jordan.
Court finds South Jordan has failed to meet its burden to
show bifurcation of discovery will increase convenience,
avoid prejudice, or be conducive to expedition and economy.
See Sensitron, Inc. v. Wallace, 504 F.Supp.2d 1180,
1186 (D. Utah 2007) (noting the burden falls on the movant to
prove the propriety of bifurcation). First, while the parties
could avoid some discovery by bifurcation if South Jordan
prevails on its early summary judgment motion, the Court
anticipates numerous disputes and motions regarding where to
draw the line of relevant discovery. See Ecrix Corp. v.
Exabyte Corp., 191 F.R.D. 611, 614 (D. Colo. 2000)
(refusing to bifurcate discovery despite having bifurcated
trial because of anticipated disputes regarding overlap).
Second, the Court finds that overlap exists in the discovery
needs on the constitutional violation and custom, policy or
practice prongs given the way Mr. Gadd states his claim. This
overlap makes drawing the line between what discovery is
relevant at this stage particularly difficult, and as noted
above, bifurcation would likely lead to a multiplication of
discovery disputes on this issue. Third, if South Jordan does
not prevail on the constitutional violation prong, discovery
will recommence requiring re-deposition of those previously
deposed once South Jordan produces additional documents,
which certainly would not promote judicial economy in this
already three-year-old case. Fourth, additional discovery
conducted after an initial summary judgment motion may reveal
supplementary evidence that would permit South Jordan to
assert a different argument on the constitutionality prong in
a subsequent summary judgment motion in addition to a motion
on custom, policy, or practice. This district generally
disfavors multiple summary judgment motions,
DUCivR-56-1(b)(1), and multiple summary judgments motions
would further delay resolution of this case, which poses a
significant concern given the age of the case. Fifth, to the
extent Mr. Gadd seeks burdensome discovery from South Jordan,
the Court finds that discovery orders will more precisely
address this issue than bifurcation of discovery. Finally,
this case is already over three years old due to motion
practice revolving around qualified immunity that went up to
and came back from the Tenth Circuit, and as this Court
previously expressed in its Order denying South Jordan's
Motion to Stay, the more time that passes prior to discovery
beginning, the more risk for lost evidence due to fading
memories and other effects of the passage of time. (ECF No.
134.) Put simply, this case is an ordinary case that does not
require bifurcation for the convenience of the parties, to
promote efficiency, or to avoid prejudice. Therefore, the
Court DENIES South Jordan's motion to bifurcate
the Court's ruling from the Bench, South Jordan moved to
stay the discovery it seeks to bifurcate until it can object
to this Court's Order and obtain a decision on that
objection. South Jordan agrees to file any objection to this
Order on or before December 14, 2018. The Court granted that