A “Motion to Stay Discovery” Pending Ruling on Motion to Dismiss is a Motion for Protective Order

In a recent case, the Defendants moved to dismiss a copyright infringement claim. Plaintiff issued discovery; Defendants answered; and, Plaintiff moved to compel.

One defendant “asks to delay this motion until after resolution of the pending motion to dismiss. This request is effectively a request to stay discovery.”  Sadeghpour v. Nakamoto, 2026 WL 2267345 (E.D. La. Aug. 6, 2026).

The court wrote that:

[N]o federal or local rule, statute, or binding case law automatically stays discovery pending a ruling on a motion to dismiss. Nor is a stay of discovery permitted merely because defendant believes it will prevail on its motion to dismiss: “[H]ad the Federal Rules contemplated that a motion to dismiss under FED. R. CIV. P. 12(b)(6) would stay discovery, the Rules would contain a provision to that effect.”

It added: “As a matter of federal procedure, the request to stay discovery is considered a motion for protective order under Rule 26(c)(1)(A)-(B).” [emphasis added].

That holding is important because it sets the governing “good cause” standard: “Good cause may exist when the party from whom discovery is sought shows that it would suffer ‘annoyance, embarrassment, oppression or undue burden or expensive’ [sic] absent a stay. Courts are accorded the discretion to stay discovery where the disposition of a motion to dismiss might preclude the need for discovery entirely.”

However, there must be a “particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.”  Therefore: “In determining whether a stay of discovery is appropriate, courts are to balance any harm produced by a stay against the possibility that a motion to dismiss would be granted and eliminate the need for any discovery.”

Further: “A stay of discovery while dispositive motions are pending is more the exception than the rule. Although the exception, courts have issued protective orders to stay discovery pending disposition of a motion to dismiss and/or motion for summary judgment when the party seeking such protection proves its necessity, such as when the dispositive motion raises a purely legal issue. But a stay of discovery is not appropriate when it could prevent a party from having a sufficient opportunity to develop a factual basis to defend against the dispositive motion.”

On the facts presented: “Nakamoto has failed to particularly and specifically demonstrate good cause as necessary to establish that a protective order staying discovery is appropriate in this case. Accordingly, the request to delay resolution of this motion [to compel discovery] until after a decision on the pending motion to dismiss is denied.”

For additional information, please see:

• Request for Expedited Discovery Granted; Motion to Stay Discovery Denied (May 28, 2026)(“courts in this district have followed two guiding principles when examining discovery stays: (1) as a general rule, courts have not been inclined to grant such motions; and (2) courts have imposed a ‘high bar’ where a stay of discovery may be appropriate ‘only in special circumstances,’ where the motion to dismiss is based on qualified or absolute immunity, or lack of jurisdiction.”);
• Motion to Dismiss Does Not Stay Discovery (Nov. 8, 2025)(“Federal Rule of Civil Procedure 26(c) states ‘[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” Fed. R. Civ. P. 26(c)(1). Defendants, as the parties seeking a stay of all discovery, bear the burden of showing good cause for such a protective order.”);
• Should Discovery be Stayed Pending Ruling on Dispositive Motion?(Apr. 3, 2025)(court applied “a two-part test to determine if delaying discovery is appropriate: (1) whether the pending motion is potentially dispositive of the case, or at least would render unnecessary the discovery at issue; and (2) the pending motion can be decided absent additional discovery.”);
• Discretionary Stay of Discovery Pending Decision on Dispositive Motion(Mar. 13, 2025)(“In this Circuit, district courts assess the following considerations when determining whether a stay is appropriate: ‘(1) the interests of judicial economy; (2) hardship and equity to the moving party if the action is not stayed; [and,] (3) potential prejudice to the non-moving party.’” [citations omitted]).