We posted late last month about how Judge Williams issued orders across at least 10 of his cases directing the parties to commence discovery pending resolution of motions to dismiss, and about how that can have a big impact on a case.
This week, visiting Judge Barker granted a "motion to commence discovery" and to compel the defendant to hold a Rule 26(f) conference (which normally triggers the start of discovery).
In the case, the defendant had moved to dismiss back in July. The Court did not issue an order directing the parties to start the scheduling process after the motion, which is not unusual.
According to the plaintiff, after the filing of the motion to dismiss, counsel for the defendant refused to meet-and-confer on the schedule (i.e., to hold a Rule 26(f) conference) or to agree that discovery could commence under Rule 26(d)(1).
Plaintiff then moved, in September, for the Court to order discovery to commence. Last week, it did so:
“Matters of docket control and conduct of discovery are committed to the sound discretion of the district court.” Elfar v. Twp. of Holmdel, No. 24-01353, 2025 WL 671112, at *5 (3d Cir. May 3, 2025) (unpublished) (cleaned up) . . . . District courts are free to require discovery to proceed while a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is pending. Allied World Ins. Co. v. Keating, No. 22-01996, 2023 WL 1463391, at *4 (3d Cir. Feb. 2, 2023) (unpublished). Analyzing the briefing and issues presented, the court finds that commencing discovery is not premature. . . . Thus, plaintiff’s . . . motion to commence discovery . . . is granted.
Seakeeper Inc. v. Dometic Corporation, C.A. No. 25-484-JCB, D.I. 114 (D. Del. Nov. 12, 2025).
Why does this warrant a post? Judge Barker is handling a fair number of District of Delaware cases right now, and patent cases are very frequently subject to motions to dismiss (an effect I tend to think is driven, in part, by the fact that a legitimate motion to dismiss often results in a free six-month-plus stay of the entire case—even if it is denied).
Whichever side of the case you are on, it is good to know that a motion to commence discovery in a Judge Barker action may get the case going even while a motion to dismiss is pending.
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