Gwynne E. Birzer

On motions to stay pending an MDL transfer decision, Birzer follows the District of Kansas rule that the case is NOT automatically stayed (MDL Rule 1.5) and applies the three-factor test (prejudice to nonmovant / hardship to movant / judicial economy). Practical lesson: filing an MDL transfer motion will not buy a discovery pause in front of her -- especially where the disputed discovery must be produced regardless of forum, she will keep the case moving.

“The pendency of a motion ... before the Panel concerning transfer ... of an action pursuant to 28 U.S.C. 1407 does not affect or suspend orders and proceedings in the district court ... Where conducting the relevant discovery, which would be beneficial in either forum, enhances judicial economy ... the Court DENIES the Motion to Stay.”

Birzer enforces the District of Kansas meet-and-confer rule (D. Kan. R. 37.1/37.2) strictly: a discovery motion filed without a genuine conferral effort 'remains denied' on that ground alone even when she grants relief on the merits in part. She also backs discovery orders with concrete, escalating sanctions ($1,000 per defendant per day) when a party has repeatedly resisted court-ordered production. Practical lesson: confer before filing, and do not slow-roll production she (or another judge) has already ordered.

“Since parties failed to confer, the Motion remains denied for failure to properly confer under D. Kan. R. 37.1. ... For each day Defendants fail to produce discovery past the December 17th deadline, each Defendant will be subject to a sanction of $1,000 per day until such discovery is produced.”

On place-of-trial designation under 28 U.S.C. 1404(a), Birzer gives real weight to the plaintiff's chosen forum and demands that the movant carry the burden with specifics. Generic witness-convenience arguments fail if the movant omits his own location and the materiality of the witnesses' testimony, particularly where depositions were videotaped and can substitute for live appearance.

“Defendant has conveyed neither the location of Defendant himself, nor the quality, materiality or the importance of the non-party witnesses' testimony, and that which can be presented via video or deposition transcript. Based on the foregoing, the Court finds ... the balance ... weighs in favor of Plaintiff.”

On requests for appointed counsel in civil forfeiture, Birzer reads 18 U.S.C. 983(b)(1) as making standing the threshold question: a claimant who has not responded to the Forfeiture Notice or stated a claim cannot get counsel appointed yet. The denial is without prejudice and premature, signaling the proper sequence (establish standing first) rather than refusing counsel on the merits.

“The first requirement for the Court to consider under 18 U.S.C. 983(b)(1) for appointment of counsel in civil forfeiture proceedings is 'the person's standing to contest the forfeiture.' Here, the Movant has yet to establish standing to contest the forfeiture by responding to the Forfeiture Notice and stating a claim.”

Birzer will stay a Section 1983 case's dispositive deadlines, though not necessarily discovery, when a parallel state or municipal criminal prosecution against the same plaintiff is pending and resolving it first would risk inconsistent rulings under Younger/Heck abstention -- particularly where the plaintiff's federal claims (e.g. wrongful arrest, malicious prosecution) would require invalidating the still-pending criminal charge. She let discovery finish rather than freezing the case entirely, to avoid evidence loss, but froze everything past that point. Practical lesson: a pending related criminal case is a real basis to expect a stay of merits deadlines here, but not necessarily of discovery itself.

“The Court declines to step on the important state interests in the municipal criminal trespass proceedings and stays the case, in its discretion, until the municipal proceeding is final per Younger.”