Weschler v. Quad-C
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. ORIGINAL CHANCERY OF TtiL STATE O F DI:LAWARE COURT OF L4 September 1.2,2000 Thomas P. Preston, Esquire Reed Smith Shaw & McClay LLP 1201 Market Street, Suitse 1500 Wilmington, DE 19801-0195 Samuel A. Nolen, Esquire Richards, Layton & Finger One Rodney Square P.O. Box 551 Wilmington, DE 19899 Re: R. Ted Weschler v. Quad-C, Lnc. And Terrence 1). Daniels V ActionNo. 18118 Gentlemen: Pending is the defendants motion to stay discovery pending the disposition of their motion to dismiss for failure to make a demand or plead demand futility, for lack of personal jurisdiction, for improper venue, and for failure to state a claim on which relief can be granted. The motion is potentially case dispositive, Absent special circumstances, discovery will normally be stayed pending the determination of a motion to dismiss the complaint. Special circumstances Thomas P. Preston, Esquin: Samuel A. Nolen, Esquire September 152000 Page 2 have been found to include situations where (i) the motion does not offer a reasonable expectation of avoiding further litigation, (ii) the plaintiff has requested interim relief, and (iii) the plaintiff will be prejudiced because the information may be tmavailable at a later time. In this case the plaintiff does not seek interim relief, nor does he claim that a brief delay of discovery would be prejudicial. Rather, the plaintiffs position is that the motion, regardlless of its outcome, does not offer a reasonable expectation of avoiding further litigation because: (i) if venue is found to be improper, he will refile the suit in a jurisdiction where venue is proper, (ii) if the complaint is found to be defective, he will amend it to cure its defects, This position, if accepted, would doom any motion to stay discovery to failure, because any pl,aintiff opposing the motion could merely promise to refile his lawsuit or curativefy amend his complaint. That is not what the noreasonable-expectation-of-avoiding future litigation exception is about. That exception is designed primarily to cover the situations where the dismissal motion, -- mnsnanv. H&&s, Del. Ch., CA. Nes, 15459,15461, Jacobs, V.C. (Feb. 10, 1998)(citing In Re McCro~, Del. Ch., C.A. No. 12006, Allen, C. (July 3, 1991)). *Briefing on the dismissal motion will be completed in approximately four weeks. Thomas P. Preston, Esquire Samuel A. Nolen, Esquire September l&2000 Page 3 even if granted, would leave at least one or more claims against one or more parties still pending. Discovery procedures are not available to uncover the basis of claims not yet asserted or of lawsuits not yet filed? The motion to stay discoveryis therefore granted. IT IS SO ORDERED. cc: Register in Chance,ry a Weinberaer v-Palm Beach. I!&, Del. Ch., C.A. No. 7696, Berger, V.C. (July 9, 1985); Qimes v. Do&, Del. Supr., 673 A.2d 1207, 1218, n. 22 (1996).
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