Flex Marketing Group, LLC v. Lapin
- Analisa Torres
- 1:22-cv-06179
- U.S. District Court · Southern District of New York
- 3
In Flex Marketing Group v. Lapin, Judge Gorenstein granted a discovery stay and postponed the scheduling conference while a dismissal motion was pending.
Flex Marketing Group, LLC and Joshua Lapin; the stay also limits discovery affecting potential third parties until further proceedings.
What happened
Flex Marketing Group, LLC asked the court to pause discovery and postpone a scheduling conference in its lawsuit against Joshua Lapin. Lapin, who was representing himself, had filed a motion to dismiss the complaint.
Flex said discovery could be extensive and burdensome, especially for third parties, and that early motions might resolve the case before discovery was needed. The court also noted that Lapin was seeking discovery while arguing that the case should be dismissed based on the existing record.
Magistrate Judge Gabriel W. Gorenstein granted Flex’s application to stay discovery. He also adjourned the September 22, 2022 scheduling conference without setting a new date. The court said Lapin could notify Flex directly about materials that should be preserved and could later seek sanctions if relevant materials were willfully destroyed.
The detailed version
- Flex Marketing Group, LLC v. Lapin · No. 1:22-cv-06179
- Analisa Torres
- Sept. 13, 2022
Background
Flex Marketing Group, LLC sued Joshua Lapin seeking a court declaration concerning claims Lapin had asserted or threatened to assert based on alleged receipt of commercial email. The opinion states that Lapin had filed a motion to dismiss Flex’s complaint and that Flex expected to file a motion for judgment on the pleadings after Lapin filed an answer.
Flex moved to stay discovery until at least after the pleadings were complete and the early motions were resolved. It also asked to postpone the Rule 16 conference, which was scheduled for September 22, 2022. Flex argued that Lapin intended to seek extensive discovery, including discovery from third parties, and that the case might be resolved by an early motion.
The court had previously denied Lapin’s request for expedited discovery and vacated subpoenas he had sought. It also barred the parties from taking third-party discovery without the court’s permission. Lapin opposed the motion to stay. The opinion says he raised issues concerning preservation of evidence.
Court’s analysis
The court treated Flex’s request to stay discovery as a concession that Flex did not plan to seek discovery of its own to oppose Lapin’s motion to dismiss. The court stated that Lapin was not entitled to discovery to pursue a motion that he had filed himself. It concluded that allowing discovery while Lapin was asserting that the case should be dismissed on the current record was unnecessary and not prudent.
The court also addressed preservation of evidence. It stated that Flex had a duty to preserve documents and electronically stored information that it knew or should have known were relevant to Lapin’s defense. Lapin could tell Flex directly, without court involvement, what types of materials he believed should be preserved and that were within Flex’s control. The court stated that, if the case resumed and relevant material had been willfully destroyed, Lapin could apply for sanctions for destruction of evidence.
Ruling
Magistrate Judge Gabriel W. Gorenstein granted the application to stay discovery. He adjourned the September 22, 2022 conference without setting a new date. The order did not decide Lapin’s motion to dismiss or the merits of the underlying dispute.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.