TCPA Defendant wants to stay discovery pending 12(b)(6) motion

TCPA defendants HATE discovery and almost reflexively file 12(b)(6) motions to dismiss. Then they frequently try to stay discovery while the 12(b)(6) motion is pending. Will it work? Should it work?

Lets look at it through some cases in the ninth circuit, starting with a 2011 case that has reverberated through many opinions in the years since, Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597. Tradebay sued Ebay over alleged trademark infringement, and Ebay filed a FRCP 12(b)(6) motion to dismiss on the basis of subject matter jurisdiction, and then moved to stay discovery pending the motion's outcome.

The motion to stay said that Ebay's motion to dismiss was meritorious, potentially dispositive of the entire case eliminating the need for discovery, and given all that, staying discovery would save time and resources [a fancy way of saying it would save money].

Let's get to the bad news up front. A stay of discovery could happen.

The purpose of Federal Rule of Civil Procedure 12(b)(6) is to enable defendants to challenge the legal sufficiency of a complaint without subjecting themselves to discovery. Rutman Wine Co. v. E & J Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987). The Ninth Circuit has held that discovery at the pleading stage is only appropriate where factual issues are raised by a Rule 12(b) motion, and a pending Rule 12(b) motion to dismiss is sufficient cause for granting a protective order. Wagh v. Metris Direct, Inc., 363 F.3d 821, 829 (9th Cir. 2003), overruled on other grounds, Odom v. Microsoft Corp., 486 F.3d 541, 551 (9th Cir. 2007) (en banc).

That said, discovery in most telephone consumer protection act cases isn't stayed at the filing of a 12(b) motion.

It is well-established that a party seeking a stay of discovery carries the heavy burden of making a strong showing why discovery should be denied. Turner Broadcasting System, Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)). A showing that discovery may involve some inconvenience and expense does not suffice to establish good cause for issuance of a protective order. Id.; Twin City Fire Insurance v. Employers Ins. of Wasau, 124 F.R.D. 652, 653 (D. Nev. 1989). Rather, a party seeking a protective order must show a particular and specific need for the protective order, and broad or conclusory statements concerning the need for protection are insufficient. Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. Cal. 1990).

The Tradebay court noted that the federal rules of civil procedure do not provide for a blanket stay of discovery after potentially dispositive motions are filed. See Skellerup Indus. Ltd. v. City of L.A., 163 F.R.D. 598, 600-01 (C.D. Cal 1995) (stating that if the Federal Rules contemplated a motion to dismiss under Rule 12(b)(6) would stay discovery, the Rules would contain such a provision, and finding that a stay of discovery is directly at odds with the need for expeditious resolution of litigation). And pointed to two district court rulings finding that a court may stay discovery only when it is convinced that the Plaintiff will be unable to state a claim for relief.

In fact, at the time of the Tradebay opinion, the Ninth Circuit had held a district court may abuse its discretion if it prevents discovery relevant to a potentially dispositive motion.

See Alaska Cargo Transport, Inc. v. Alaska R.R., Corp., 5 F.3d. 378, 383 (9th Cir. 1993) (stating the district court would have abused its discretion in staying discovery if the discovery was relevant to whether or not the court had subject matter jurisdiction); Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (holding district court did not abuse its discretion in denying discovery when the complaint did not raise factual issues requiring discovery to resolve); Kamm v. Cal City Dev. Co., 509 F.2d 205, 210 (9th Cir. 1975) (holding the propriety of a class action cannot be determined in some cases without discovery, and to deny discovery in such cases is an abuse of discretion); Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1313 (9th Cir. 1977) (stating that the better and more advisable practice is for the district court to allow litigants an opportunity to present evidence concerning whether a class action is maintainable, and that such an opportunity requires "enough discovery to obtain the material").

This puts district courts generally in a position where they might be successfully appealed if they stay discovery and that is going to generally bias some of them away from doing it. That said, the Tradebay court noted that some district courts take a preliminary look at the motion to dismiss to see if they think it will be granted, and stay or don't stay discovery accordingly. And a middle approach is to stay discovery when there are no factual issues in need of further immediate exploration, and the issues before the Court are purely questions of law that are potentially dispositive."

Tradebay_ LLC v. eBay_ Inc._278 F.R.D. 597.Pdf

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How does this all help you if your telephone consumer protection act defendant is moving to stay discovery? First is look at other cases in your district and see which of the three standards the court is applying. And look at the pending motion to dismiss, are there facts you could learn in discovery that would aid you in fighting it off? Point them out to the court!

For example in Oregon district court, see Ciuffitelli v. Deloitte & Touche LLP, 2016 U.S. Dist. LEXIS 163546, 2016 WL 6963039. The plaintiffs served discovery on the defendants, and the defendants wanted to push discovery till after the motions to dismiss were ruled on.

Collectively, the Defendants have filed seven motions to dismiss (ECF Nos. 74, 78, 80, 81, 85, 95, and 113), asserting multiple reasons to support their contention that Plaintiffs have failed to state a claim against each of them. The motions to dismiss assert Plaintiffs' complaint should be dismissed for legal and factual deficiencies. If granted based on some of the claimed legal deficiencies, Plaintiffs' claims against one or more of the Defendants could be dismissed with prejudice, but Plaintiffs likely would be allowed to attempt to cure factual deficiencies through an amended complaint. The motions to dismiss are pending and fully briefed, will be heard on December 21, 2016, and will be taken under advisement on that date.

This plaintiff made a smart argument Plaintiffs propose a compromise: the Accounting Firms would produce audit workpapers for the years each firm acted as auditor to any Aequitas companies. Plaintiffs point out that even if the court granted the Accounting Firms' respective motions to dismiss in their entireties and the Accounting Firms no longer were parties to this lawsuit, these workpapers still would be discoverable as third-party evidence. Never turn down the opportunity to make a smart argument like this.

The Ciuffitelli court went on to pick the middle ground, case specific discovery route, and future motion to stay cases in this Oregon District Court have a decent chance of going this direction as well, but one factor the Ciuffitelli court weighed was the expected length of the case, which it expected to be measured in years. A shorter case might have pushed the court to not stay discovery at all.

Ciuffitelli v. Deloitte _ Touche LLP_2016 U.S. Dist. LEXIS 163546.Pdf

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Contrast this with T.S. v. Body Contour Ctrs., LLC, 2025 U.S. Dist. LEXIS 78380, 2025 WL 1194023 which had somewhat similar facts - lawsuit initiated and a potentially case dispositive motion to dismiss filed, and the defendant wanted to stay discovery.

Courts typically consider two factors in evaluating whether good cause exists to issue a stay: "First, the pending motion must be potentially dispositive of the entire case, or at least on the issue to which discovery is directed. Second, the court must determine if the pending dispositive motion can be decided without additional discovery." Ahern Rentals Inc. v. Mendenhall, C20-0542-JCC, 2020 U.S. Dist. LEXIS 120948, 2020 WL 8678084, at *1 (W.D. Wash. July 9, 2020); Wilmington Tr. Co. v. Boeing Co., No. C20-0402-RSM-MAT, 2020 U.S. Dist. LEXIS 190642, 2020 WL 6060434 (W.D. Wash. Oct. 14, 2020). Assessment of these factors entails a "preliminary peek" at the pending motion to dismiss. Travelers Prop. Cas. Co. of Am. v. H.D. Fowler Co., C19-1050-JCC, 2020 U.S. Dist. LEXIS 29306, 2020 WL 832888, (W.D. Wash. Feb. 20, 2020) (quoting Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 603 (D. Nev. 2011)). "The 'preliminary peek,' however, is not intended to prejudge the outcome of the motion." Zeiger v. Hotel Cal. by the Sea LLC, No. C21-1702-TL-SKV, 2022 U.S. Dist. LEXIS 86376, 2022 WL 1499670, (W.D. Wash. May 12, 2022). Among other factors that may be relevant in a particular case, a court may consider whether "it is convinced that the plaintiff will be unable to state a claim for relief," Wenger v. Monroe, 282 F.3d 1068, 1077 (9th Cir. 2002), and whether "a stay of discovery would unnecessarily delay litigation," Edmonds v. Amazon.com, Inc., No. C19-1613-JLR, 2020 U.S. Dist. LEXIS 39577, 2020 WL 8996835, at *2 (W.D. Wash. Mar. 6, 2020).

The Western District of Washington court denied the motion to stay because it felt that a blanket stay would simply delay the case.

T.S. v. Body _tour Ctrs._ LLC_2025 U.S. Dist. LEXIS 78380.Pdf

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There are situations where the court grants motions to stay pending the resolution of the MTD and a wily TCPA defendant might cite to a lot of them, but usually there is a reason. Take Gossage v. Office of Personnel Mgmt., 2025 WL 437752, (W.D. Wash. Feb. 7, 2025):

Defendants’ pending motion to dismiss could dispose of the entire case . . . Defendants assert that the Court lacks subject matter jurisdiction for some claims, that certain claims have been previously litigated by Mr. Gossage and are barred by issue or claim preclusion, and that still other claims have not been exhausted administratively, are time-barred, or otherwise moot [the judge is saying the defendant's MTD is likely to be granted or substantially granted which is a substantial factor in the outcome of a motion to stay] . . . Even “[i]f resolution of the motion to dismiss does not dispose of the [entire] case, it will focus the scope of discovery” on the remaining claims . . . the motion to dismiss can be decided without additional discovery because it presents purely legal issues . . . Any damage from granting a stay of discovery is also minimal. Mr. Gossage does not mention any damage he would suffer if the stay was granted . . . That the events at issue occurred over twenty years ago likely also mitigates any damage that a temporary delay of discovery would have [I've seem this reasoning in the outcome of other motions to stay - a case litigated on old facts is more likely to be stayed] . . . Not granting a stay would also impose hardship on Defendants. As Defendants describe, “Plaintiff has brought discrimination claims regarding actions he alleged happened over 20 years ago, involving a myriad of government agencies . . . Indeed, “Plaintiff has . . . already issued premature discovery requests to Defendants even though the Court’s deadline for a Rule 26(f) conference is not for several weeks.” [breaking the rules is rarely rewarded] “Thus, Defendant[s] may suffer harm in being required to go forward with discovery at this stage, particularly given the breadth of Plaintiff’s requests.” . . . Finally, staying discovery pending resolution of the motion to dismiss is more likely to simplify the issues “even if the motion does not result in dismissal of all claims . . . [as] the Parties will have a greater understanding of the claims as they engage in discovery.”

Gossage v. Office of Personnel Mgmt., 2025 WL 437752.pdf

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This Gossage reasoning came from an anti-trust lawsuit Subspace Omega, LLC v. Amazon Web Servs., Inc., No. 2:23-cv-01772-TL, (W.D. Wash. Oct. 9, 2024)

Significantly, Plaintiff went out of business by May 31, 2022, and then did not file its original Complaint for another year and a half and its Amended Complaint for almost two years. Plaintiff also did not serve its first discovery requests until August 14, 2024, nearly four months after the Amended Complaint was filed. Plaintiff's significant delays in prosecuting its case indicate that any possible harm from a stay is greatly diminished here. [lesson: if you dilly dally yourself, it is harder to argue against more delays] Indeed, Plaintiff does not identify any new or ongoing harm that would result from a stay, such as loss of particular discovery; indeed, all alleged harm (i.e., going out of business) appears to be fixed in the past . . . Moreover, contrary to Plaintiff's contention, a stay will not shorten or otherwise prejudice Plaintiff's ability to complete discovery, as the Court will allow the Parties to request a new case schedule, if appropriate, [this was a bad argument for the plaintiff to make] after its ruling on the Motion to Dismiss is issued . . . On the other hand, "[i]n antitrust cases [a stay of discovery pending a Rule 12(b)(6) motion] especially makes sense because the costs of discovery in such actions are prohibitive." . . . And even if the motion does not result in complete dismissal of all claims, the issues are more likely to be simplified than complicated, and the Parties will have a greater understanding of the claims as they engage in discovery.

In another case where the court granted a motion to stay Silbaugh v. Chao, No. C17-1759RSM, (W.D. Wash. May 22, 2018), again the pending motion to dismiss was strong.

Defendant has filed a Motion to Dismiss under Rule 12(b)(1) based on Plaintiff Alisha R. Silbaugh's alleged failure to file this complaint naming the correct defendant within the applicable statutory time limit . . . If Defendant's procedural facts and arguments are correct, this case cannot proceed [the court is saying it found the pending motion to dismiss to be likely granted] . . . Plaintiff argues that discovery should not be stayed because Plaintiff may be able to obtain discovery to aid her in responding to the pending Motion to Dismiss. However, Plaintiff does not explain what facts or records she hopes to obtain in discovery. Her statement of facts appears complete and does not raise any questions that could be answered by further discovery . . . Defendant has raised a threshold question of subject matter jurisdiction that should be answered before proceeding with discovery.

So nothing really new here. The ninth circuit has not issued a lot of guidance in this area, meaning it hasn't been the source of many appeals. Find out how similar cases to yours were handled in your district, have similar expectations, and make similar arguments.

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Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.

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