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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`Allegiant Travel Co.,
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` Plaintiff
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` v.
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`R2 Solutions LLC,
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` Defendant
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`Case No. 2:22-cv-00828-CDS-BNW
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`Order Affirming Magistrate Judge’s Order
`and Denying Defendant’s Appeal
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`[ECF Nos. 52, 53]
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`Allegiant Travel Company sues R2 Solutions LLC, seeking a declaratory judgment that it
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`has not infringed seven of R2’s patents. Comp., ECF No. 1. Earlier this year, R2 filed a motion to
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`dismiss, which remains pending. Mot. to Dismiss, ECF No. 26. And last month, R2 moved to
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`stay discovery until its motion to dismiss is resolved. Mot. to Stay, ECF No. 44. The Honorable
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`United States Magistrate Judge Brenda Weksler recently denied R2’s motion to stay discovery.
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`Order Denying Mot. to Stay. ECF No. 52. The day after Judge Weksler issued her order, R2 filed
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`an emergency appeal of it, urging me to expeditiously rule on it because of the approaching
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`deadline by which Judge Weksler ordered R2 to file its disclosure of asserted claims and
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`infringement contentions. Emergency Appeal, ECF No. 53.1 I find that R2 has not demonstrated
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`that the magistrate judge’s order “is clearly erroneous or contrary to law,” so I affirm the order
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`and deny R2’s appeal of it. See LR IB 3-1. I thus direct R2 to comply with the October 25, 2022,
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`1 R2 classifies its response to Judge Weksler’s order as an objection, but because R2 disagrees with the
`final decision of a magistrate judge, it is considered an appeal, which is why I refer to it as such in this
`order. Compare LR IB 3-1 (addressing a district judge’s review of a magistrate judge’s order on non-
`dispositive motions, which occurs when a party appeals the magistrate judge’s final determination) and LR
`IB 3-2 (discussing review of a magistrate judge’s recommendation on a dispositive motion, which occurs
`when a party objects to the magistrate judge’s recommendation).
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`Case 2:22-cv-00828-CDS-BNW Document 59 Filed 10/20/22 Page 2 of 4
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`deadline by which it must serve its disclosure of asserted claims and infringement contentions
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`and responses. ECF No. 57.
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`I.
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`Legal standard
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`A district court’s review of a magistrate judge’s order on a pretrial matter is governed by
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`28 U.S.C. § 636. Magistrate judges are authorized to resolve pretrial matters as long as their
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`ruling is not “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ.
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`P. 72(a); LR IB 3-1(a) (“A district judge may reconsider any pretrial matter referred to a
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`magistrate judge . . . where it has been shown that the magistrate judge’s ruling is clearly
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`erroneous or contrary to law.”). A magistrate judge’s order is “clearly erroneous” if the court has
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`“a definite and firm conviction that a mistake has been committed.” See United States v. U.S. Gypsum
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`Co., 333 U.S. 364, 395 (1948); Burdick v. Comm’r IRS, 979 F.2d 1369, 1370 (9th Cir. 1992). “An order
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`is contrary to law when it fails to apply or misapplies relevant statutes, case law[,] or rules of
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`procedure.” United Health Grp., Inc. v. United Healthcare, Inc., 2014 WL 4635882, at *1 (D. Nev. Sept.
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`16, 2014).
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`II.
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`Discussion
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`Under Federal Rule of Civil Procedure 26(c), a court may stay discovery if the moving
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`party shows good cause, including when a potentially dispositive motion is pending. Fed. R. Civ.
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`P. 26(c). In her order denying R2’s motion for a discovery stay, Judge Weksler applied the
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`correct good-cause standard and conducted the three-part test known as the “preliminary peek”
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`test. ECF No. 52 at 2–8. Under this test, courts “ask[] whether (1) the pending motion is
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`potentially dispositive, (2) the potentially dispositive motion can be decided without additional
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`discovery, and (3) after the court takes a “preliminary peek” at the merits of the potentially
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`dispositive motion, it is “convinced” that the plaintiff cannot state a claim for relief.” ECF No. 53
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`at 3 (citing Kor Media Group, LLC v. Green, 294 F.R.D. 579, 581 (D. Nev. 2013)). Judge Weksler
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`reasoned that she is unconvinced that this court lacks subject-matter or personal jurisdiction
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`over this case, is unpersuaded that exercising jurisdiction under the Declaratory Judgment Act
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`would be improper, and is likewise uncertain that there is not a justiciable controversy between
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`these parties. ECF No. 52 at 7–8. She further concluded that she “does not find that the
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`‘likelihood of dismissal’ in this case is such that it outweighs the considerations embedded in
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`Rule 1” (Id. at 7), which are “to secure the just, speedy, and inexpensive determination of every
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`action and proceeding.” Fed. R. Civ. P. 1. She also found that R2 failed to demonstrate what
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`undue burden it would face if discovery were not stayed. Id. at 8. And she highlights a puzzling
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`contradiction in R2’s approach to this litigation: “If [R2] truly believed no dispute exists, then it
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`would simply agree to the declaratory relief [Allegiant] seeks. Otherwise, [R2] should provide
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`[Allegiant] with the needed information so this case can proceed.” Id.
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`Thus far, R2 is exercising neither option and provides minimal explanation as to why
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`not, other than stating that “each of these options assume that there is a justiciable case or
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`controversy in the first place.” ECF No. 53 at 2. In its appeal, R2 asserts that the magistrate
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`judge’s denial of its motion “is clearly erroneous,” in part because the magistrate judge disagrees
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`with R2’s argument that “engaging in discovery would ‘create a dispute where none exists.’”
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`ECF No. 53 at 7. R2’s position is that “if [it] agrees to the declaratory relief that Allegiant seeks,
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`it is submitting to the [c]ourt’s jurisdiction at the same time that it contends that the [c]ourt
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`lacks jurisdiction.” Id. And R2 continues that “if [it] takes a position on whether Allegiant
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`infringes R2’s patents by providing infringement contentions, [the court] is forcing R2 to create
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`a dispute between the parties when it contends no justiciable dispute exists.” Id.
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`But this runs contrary to Allegiant’s allegations in its complaint. ECF No. 1. Allegiant
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`alleges that R2 “has accused Allegiant of infringing the [p]atents-in[s]uit and has engaged in a
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`patent enforcement campaign resulting in 22 lawsuits.” Id. at ¶ 2. While Allegiant does not allege
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`that R2 has commenced litigation against it, it contends that it is “in reasonable apprehension of
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`a lawsuit against Allegiant regarding the alleged infringement of R2’s patents” because of other
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`similar lawsuits in which R2 is involved. Id. at ¶ 37. I find Judge Weksler’s reasoning persuasive
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`and adopt it here. Her point that R2 must “take a position” in this lawsuit is well-founded (ECF
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`Case 2:22-cv-00828-CDS-BNW Document 59 Filed 10/20/22 Page 4 of 4
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`No. 53 at 8), as R2 seems to want to have its cake—informing Allegiant that it has infringed
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`upon R2’s patents—and eat it, too—not explaining how such infringement has occurred and
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`instead insisting that no justiciable controversy exists. ECF No. 52 at 7. Because R2 has not
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`shown good cause to stay discovery and because the magistrate judge’s order was not clearly
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`erroneous or contrary to law, I deny R2’s appeal and affirm Judge Weksler’s order in full.
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`III.
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`Conclusion
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`IT IS THEREFORE ORDERED that the defendant’s appeal of the magistrate judge’s
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`order [ECF No. 53] is DENIED, and the magistrate judge’s order denying the defendant’s motion
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`to stay discovery [ECF No. 52] is AFFIRMED.
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`DATED: October 20, 2022
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`_________________________________
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` Cristina D. Silva
` United States District Judge
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