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Zachary
Zachary, Attorney
Category: Personal Injury Law
Satisfied Customers: 3634
Experience:  Lead Personal Injury Trial Lawyer
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i have a federal case, and everyone has been served and all

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i have a federal case, and everyone has been served and all answered, but one submitted a motion to dismiss. I have answered the motion to dismiss 2 weeks ago. However, there has been no movement in the case, and I'm worried the court is waiting for me to do something. They had answered back on September, 20. I have yet to do anything about discovery, as I was told that the Court sets the date for the case management conference. But clerks have been wrong before to my detriment. Should I start discovery on my own or wait for the Court to do something? The Clerks have given me differing advice. thank you
Submitted: 1 year ago.
Category: Personal Injury Law
Expert:  Zachary replied 1 year ago.
Hi,

Thank you for your question. Assuming your case is a civil case, you are in what is commonly referred to as the 12(b)(6) stage, which I'm sure you know by now having composed your response. The court indeed takes this motion at its own pace. You do not have to do anything further at this point on the motion to dismiss unless you would like to supplement your argument.

The next thing you need to do is governed by Federal Rule of Civil Procedure 26, which requires that the parties "confer" (i.e., call each other on the phone and have a discussion) and then make the disclosures discussed in this rule. (Can be found at: http://www.law.cornell.edu/rules/frcp/rule_26). You cannot conduct any discovery until this disclosure statement has been made and the "conference" has been done.

Now, even if you do this, the other side may object to the discovery and state that it is premature based on the fact that the court has not ruled on the 12b6 motion. At that point, you would file a motion to compel arguing that discovery is not prohibited by rule 12b6.

The best thing you can do is familiarize yourself with all the rules of civil procedure regarding pre-trial matters.

Please let me know if you need further information.

-ZDN
Customer: replied 1 year ago.

as to the confer part, I am the plaintiff, I assume I am the one that needs to call the defendants? Or need I wait for the court to set the conference? a clerk did tell me the court sets the conference date,but in a different lawsuit plaintiff was supposed to. I just dont want them stating that I have been too slow to set it.

Expert:  Zachary replied 1 year ago.
I understand your confusion, and in fact, it can go either way. If you look at the rules in 26, it has specific time limits in which the conference is supposed to occur. If the court has not issued a "scheduling order" which gives you a time limit, it is probably a good idea to contact each of the parties in writing and suggest a few dates on which you all could have the Rule 26 conference. That puts the ball in the defendants' court. If they don't respond to you. Then you send the letter again requesting the conference and stating that if you don't hear back from them, you will make a unilateral Rule 26 disclosure and will begin discovery.

Please let me know if you need further information on this issue.

-ZDN
Zachary, Attorney
Satisfied Customers: 3634
Experience: Lead Personal Injury Trial Lawyer
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