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September 28, 2015

Plead First; Discovery Second

In Becker v. Smith & Nephew, Inc., the District Court of New Jersey recently held that plaintiffs could not compel answers to pre-complaint discovery in order to form the basis of the complaint.

The plaintiffs sought to file FDA parallel violation claims (claims premised on alleged violations of the Food and Drug Cosmetic Act and “parallel” state laws that existed absent the Food and Drug Cosmetic Act). The plaintiffs contended they should be permitted to allege unspecified deviations from FDA requirements at the pleading stage and fill in the blanks through discovery.

The court disagreed. The court held that such a premature request for discovery directly conflicts with Rules 8 and 11(b) of the Federal Rules of Civil Procedure. The court noted it would be improper for it to rule that a plaintiff has a right to support a claim through discovery, as opposed to solely the allegations in the complaint.

What It Means to You

Especially in federal litigation, Becker is useful and should be relied upon when a plaintiff, no matter the cause of action, seeks pre-complaint discovery in order to form the basis of the allegations in the complaint. It is well-settled that federal pleading standards are very strict, and a plaintiff must have sufficient facts in its possession to survive a Motion to Dismiss. Plaintiffs are not allowed to engage in fishing expeditions, searching for answers to form the basis of the complaint during the pre-complaint discovery phase.