Mooney v. The Boeing Company ( 2020 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MATTHEW B. MOONEY,
C.A. No. K20C-04-025 WLW
Plaintiff,
V.
THE BOEING COMPANY,
Defendant.
Submitted: July 27, 2020
Decided: September 1, 2020
ORDER
Upon Defendant’s Motion to Stay and
For a Protective Order.
Granted.
Mr. Matthew B. Mooney, pro se.
Blake Rohrbacher, Esquire, Kelly E. Farnan, Esquire, Matthew D. Perri, Esquire
and Ryan D. Konstanzer, Esquire of Richards Layton & Finger, P.A., Wilmington,
Delaware; attorney for Defendant.
Witham, R.J.
Matthew B. Mooney v. The Boeing Co.
C.A. No. K20C-04-025 WLW
September 1, 2020
Upon consideration of the Motion to Stay and for a Protective Order filed by
the Defendant, The Boeing Company (Boeing), the opposition of said motion by
the Plaintiff, Matthew B. Mooney (Mooney), the record of the case, and upon
hearing the arguments presented by both sides, it appears to the Court that:
1. This is a civil action brought by Mooney alleging fraudulent
misrepresentation, fraudulent concealment and fraud by omission on the part of
Boeing. Mooney, as an investor of Boeing, alleges that Boeing misrepresented the
qualities, characteristics, costs, value, and safety of its 737 Max airplane to the
Federal Aviation Association (FAA), its customers, and its investors. !
2. By agreement, the parties stipulated on June 9, 2020 that Boeing file a
motion, answer, or any other response on or before July 31, 2020. Boeing filed a
Motion to Stay and for a Protective Order on July 2, 2020, and then filed a Motion
to Dismiss and/or Stay on July 31, 2020. A response to the July 2 Motion to Stay
and for a Protective Order was filed by the Plaintiff on July 10, 2020. Oral
arguments were heard via Zoom on July 23, 2020.
FACTS PERTAINING TO STAY
3. Both parties have submitted briefs along with their respective pleadings.
Mooney opposes the Motion to Stay, claiming he will be prejudiced by any delay
in discovery asserting that this is a delay tactic. Mooney has served Boeing with
twenty-three (23) requests for admission, one (1) interrogatory, and three (3)
requests for production, specifically targeted, presumably, to gather misleading
information alleged in his complaint.
4. Boeing admits that there is pending litigation in other courts, including in
' Compl. Para. 343,357,367 (Trans. ID. 65595241.
Matthew B. Mooney v. The Boeing Co.
C.A. No. K20C-04-025 WLW
September 1, 2020
this State, where similar information is requested and thus the Plaintiff claims the
discovery would not be burdensome. However, Boeing argues that the discovery
requests were served before Boeing had the opportunity to advise of its formal
position given the extensive nature of both the complaint and the requests -- two
(2) years of board minutes as well as emails from current and prior Chief
Executive Officers.
5. Additionally, Boeing contends that the Motion to Dismiss will be case
dispositive. The Plaintiff has not sought this case to be expedited. The litigation-
hold procedures in place will preserve all potentially relevant discovery material as
claimed by Boeing.
RULE ABOUT COURT'S DISCRETION
6. Superior Court Civil Rule 28 (c) authorizes the Court to regulate
discovery and permits the Court to ‘make any order which justice requires to
protect a party or person from undue burden or expense.’? In this case the Motion
for a Stay and a Protective Order is timely.? A stay of discovery should not be
granted automatically, and the filing of a dispositive motion does not automatically
stay discovery.’ A Court should permit discovery to go forward absent a showing
by the movant that the Court should exercise its discretion and stay it.> However, a
stay would be appropriate where a “potentially case dispositive motion is pending
and there is no prejudice to the non-moving party.° It should be especially noted
* Super Ct. Civ. R. 26 (c).
> Huber Baking Co. V. Frank C Sparks Co., 46 Del. 153, 81 A.2nd 132 (1951).
* Gatz v Ponsokit, 2005 WL 820604 (Del Ch).
° Anderson v Airco, Inc., et al. 2004 WL 2828208 (Del. Super.).
° ABB Fakt, Inc. V. National Union Fire Ins. Co. 731A.2d 811.815 (Del. 1999).
Matthew B. Mooney v. The Boeing Co.
C.A. No. K20C-04-025 WLW
September 1, 2020
that otherwise, a stay should only be imposed for exceptional circumstances.”
CLAIM OF DELAY
7. Mooney makes the claim that the Motion for a Stay should be denied on
the basis that the ruling on the Motion to Dismiss is not imminent. This Court has
ruled in the past that, when a Motion to Dismiss is to be decided in a relatively
short period of time after the commencement of discovery, then a stay of discovery
can be determined appropriate.’ Mooney raises in his response to the Motion to
Stay that deciding Boeing's Motion to Dismiss could “take many months to a year
to fully litigate.” However, in Mooney's response emphasizing imminence, his
citations do not provide any guidance as to how to determine imminence other than
to quote from Del. DOT v. Amec E&I, Inc., “comprehensive briefs were filed and
the motion [to dismiss] is ready for oral argument...the time from then to decision
”? Here, this Court has a brief schedule which concludes no
will not be prolonged.
later than September 2, 2020, and oral arguments will be shortly thereafter. There
is no reason to believe that a decision on Boeing's Motion to Dismiss should be
“prolonged.”
PREJUDICE TO PLAINTIFF'S CASE
8. Mooney offered no explanation in his response as to why a grant of this
Motion to Stay and for Protective Order would prejudice his case. In Mooney's
response, he spends merely two sentences with no legal backing for his assertions
as to why his case would be prejudiced.
’ Boxer v. Husky Oil Co., 1981 WL 88233 (Del Ch).
8 Anderson, 2004 WL 2828208 at *1.
” Delaware Dep't of Transportation vy. Amec E&I Inc., 2012 WL 1409307 at *2 (Del.
Super. Ct. 2012).
Matthew B. Mooney v. The Boeing Co.
C.A. No. K20C-04-025 WLW
September 1, 2020
9. In Anderson v. Airco, Inc., this Court ruled that any undue cost borne by a
party in complying with discovery when already enmeshed in similar litigation
requiring similar discovery efforts will outweigh the risk of prejudice.!° In this
case, Boeing is facing a very similar class action in the Northern District of Illinois
where much of the same information sought by Mooney will be sought by the
1
certified class.'' As was the case in Anderson, these factors lend to this Court's
conclusion that granting the stay of discovery will not prejudice the non-moving
party.
CONCLUSION
10. Boeing has filed a lengthy Motion to Dismiss contending that it is case
dispositive or would at least narrow the issues to be litigated between the parties.
The Court does not doubt that answering the assertions in the lengthy complaint
require a careful and perhaps lengthy motion to dismiss. The Court has previously
set an answer and briefing schedule on July 15, 2020."
11. The Court intends to currently address the Motion to Stay Discovery
pending a resolution of the Motion to Dismiss. While the length of the briefing
schedule stretches the time somewhat, the Court believes it would be useful and
helpful if the temporary stay is continued until the outcome of the decision on the
Motion to Dismiss. Needless and extensive document production may be avoided,
especially if the issues can be narrowed. Conservation of the parties’ resources
outweighs any risk of prejudice to the Plaintiff, particularly since a document hold
is apparently in place for the other similar litigation for the Defendant. Obviously,
'° Anderson, 2004 WL 2828208 at *2,
'! Alison Frankel, Thomson Reuters, Alison Frankel's On the Case, November 18, 2019.
'2 (Transaction No. 65775126).
Matthew B. Mooney v. The Boeing Co.
C.A. No. K20C-04-025 WLW
September 1, 2020
if the situation changes for either party, appropriate relief may be requested.
12. Accordingly, The Motion to Stay Discovery and for a Protective Order
pending resolution of the Motion Dismiss is GRANTED.
IT IS SO ORDERED.
/s/ William L. Witham, Jr.
Resident Judge
WLW/dmh