Should You Always Get a Stay of Discovery When You File a Motion to Dismiss?

Parties always think their positions have merit, as opposed to that swill being peddled by the other side.

That's why the position that all discovery should be stayed pending disposition of a motion to dismiss is such a slippery slope.

Parties would be encouraged to file a motion to dismiss in every case, and the rules of civil procedure would essentially be abrogated while everyone waits for a ruling.

That doesn't seem to make much sense, as Judge Scola in a well-reasoned opinion points out:
Nor will it grant a wholesale stay of discovery either. Dismissal of the case with prejudice is not a foregone conclusion. Spirit muses that Plaintiffs’ RICO claims are “untested” and “comprised of allegations that have never been sustained against an airline,” and regulation of airline price advertising falls into the exclusive domain of the Department of Transportation. Mot. at 5. The problem is, these arguments do no more than rehash Spirit’s position, made in its motion to dismiss, that it should win. While the Court must conduct a “preliminary peek” at the motion and the Complaint to see whether the Plaintiffs’ claims are likely baseless or dubious, Feldman, 176 F.R.D. at 652-53, the Court is not required to move Spirit’s dismissal motion to the front of the line, ahead of other cases with pending motions, and fully adjudicate it on the spot. Such a requirement would be unfair to other parties, as well as to the Court.
But Judge Scola recognizes that there can be a time and place for such extraordinary relief -- just not in every single case that comes across your desk, especially when there are more targeted ways to deal with the issue:
In the interim, nothing herein should be construed as a blank check for Plaintiffs to burden or harass Spirit with ridiculous discovery requests. Should that come to pass, the multitude of tools provided by the discovery rules remain at Spirit’s disposal. Any appropriate motions seeking protection or relief from discovery may be addressed by the Magistrate Judge, under this Court’s automatic reference of such matters. That will allow particularized discovery issues to be addressed and resolved on a case-by-case basis, which is a more prudent approach than an indiscriminate blanket stay of discovery.
Happy Veteran's Day!

And how was your weekend?


  1. At a minimum, discovery should be stayed where it is a certainty that a claim will not survive a motion to dismiss. All civil RICO cases fail to survive motions to dismiss. Therefore, the case should have been stayed.

    Tell me where I'm wrong?

  2. A certainty? Stop smelling your own bullshit.

  3. Despite numerous attempts, I've never been successful in getting a judge to stay discovery pending a ruling on a motion to dismiss. Fortunately, in most of those cases, the judges have ruled on the motions relatively quickly, before discovery expenses begin to mount (in one of those instances, the court later denied the motion to dismiss, so, fine, discover away). But judges really must make it a priority to rule on motions to dismiss quickly. Given that you're dealing only with the complaint and the briefs, and given that you're trying only to decide whether the complaint states a claim under the applicable pleading standard, these motions really should be decided within a month or so of being fully briefed. Waiting six months or more -- and, yes, this happens not infrequently in this district -- is not only disappointing, but it's unfair (and can be insanely expensive) to the parties. That's just not right.

  4. How do Dubai's Airline Attorneys take care of their flyers then?

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