When you file a motion to dismiss in the District of Delaware, the case case go one of two ways, depending on the judge. Most of our current judges do not require discovery to move forward if a motion to dismiss is filed, at least absent action from the parties. Some District of Delaware judges, though, have required discovery to move forward pending a motion to dismiss. Former Chief Judge Stark made this explicit in his procedures, for example, and Judge Burke has also adopted this practice.
This seemingly minor difference in policy can make a huge difference in how a case proceeds. A complicated motion to dismiss can sometimes take a busy court anywhere from …
