The Partial Motion To Dismiss and the Defendant's ... - Lawyers

the instant partial motion to dismisswould not dispose of the entire case.Because the parties will have to conductdiscovery regardless of the outcome ofthe instant motion, it would be prematureto bar plaintiff at this early stagefrom [proceeding].40. See Chudasama v. Mazda Motor Corp., 123F.3d 1353, 1367 (11th Cir. 1997) (“Facialchallenges to the legal sufficiency of a claimor defense, such as a motion to dismissbased on failure to state a claim for relief,should … be resolved before discoverybegins.”) (footnote omitted).41. Id. at 1368.42. In most jurisdictions, the filing of a motionto dismiss under Rule 12(b) does not automaticallystay discovery pending resolutionof the motion. See In re Sulfuric Acid,Antitrust Litig., 231 F.R.D. 331, 336 &n.5 (N.D. Ill. 2005). Nevertheless, “suchstays are granted with substantial frequency,”id. at 336, and are clearly appropriate“where the likelihood that such motionmay result in a narrowing … of discoveryoutweighs the likely harm to be producedby the delay.” 19th Street Baptist Church v.St. Peters Episcopal Church, 190 F.R.D.345, 349 (E.D. Pa. 2000) (internal quotationmarks and citation omitted).43. See Godlewski, 210 F.R.D. at 572 (“[T]heminority approach has the advantage ofpreventing a party from using a partialRule 12(b) motion to delay adjudication ofthe remaining portion of the action.”);Cagan, supra note 11, at 204 (“[R]equiringa defendant to answer the unchallengedcounts discourages the filing of a partialmotion to dismiss solely as a dilatory tactic,and encourages expedient discovery.”).44. See Cagan, supra note 11, at 204 (“A partialmotion to dismiss often has the practicaleffect of impeding, often paralyzing, theprogress of discovery, and the Rules contemplatea steady—if not swift—discoverypace.”); cf. Washington v. City of Evanston,535 F. Supp. 638, 639 n.2 (N.D. Ill.1982) (“Like the large majority of [Rule]12(b)(6) motions, in principal part this onehas accomplished little except to delay thereal commencement of litigation.”).45. Indeed, the filing of a motion to dismisssuspends the time for answering only if aspecific time for doing so is not otherwise“fixed by court order.” FED.R.CIV.P.12(a)(4). Thus, a court clearly could avoidany prejudicial delay simply by requiringthe defendant to file an answer despite itssubmission of a partial motion to dismiss.See, e.g., In re Longhorn Secs. Litig., 573 F.Supp. 255, 263 (W.D. Okla. 1983) (“Toexpedite this litigation, … the Court hasrequired the defendants to answer thecomplaints even though their pre-answermotions were still under consideration.”).46. See, e.g., Godlewski, 210 F.R.D. at 572-73([“[A]ny potential abuses or dilatory tacticswhich the minority approach seeks to preventcan … be guarded against under thewww.myazbar.org SEPTEMBER 2006 ARIZONA ATTORNEY 61