United States District Court

for the

Southern District of Florida

Kenneth C. Griffin, Plaintiff,

v.

Internal Revenue Service and U.S. 

Department of the Treasury, 

Defendants.

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)

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Civil Action No. 22-24023-Civ-Scola

Order Denying Stay

The Government, the Defendant in this case, asks the Court for a limited

stay of discovery pending the Court’s resolution of its motion to dismiss. (Def.’s 

Mot., ECF No. 68.) The Plaintiff, Kenneth C. Griffin, opposes the stay, arguing 

the Government has not shown either (1) that its motion to dismiss is so clearly 

meritorious or entirely case dispositive such that a stay would be warranted; or 

(2) a sufficient undue prejudice or burden associated with discovery in this 

case. (Pl.’s Resp., ECF No. 73.) The Government has, in turn, replied to Griffin’s 

opposition. (Def.’s Reply, ECF No. 76.) For the reasons that follow, the Court 

denies the Government’s motion for a stay of discovery (ECF No. 68). 

District courts are given “broad discretion over the management of pretrial activities, including discovery and scheduling.” Johnson v. Bd. of Regents 

of Univ. of Ga., 263 F.3d 1234, 1269 (11th Cir. 2001). As a general rule, 

preliminary motions which may likely dispose of an entire suit should be 

resolved as soon as practicable to obviate avoidable discovery costs. See 

Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1368 (11th Cir. 1997) (“If 

the district court dismisses a nonmeritorious claim before discovery has begun, 

unnecessary costs to the litigants and to the court system can be avoided.”). 

However, “[a] request to stay discovery pending a resolution of a motion is 

rarely appropriate unless resolution of the motion will dispose of the entire 

case.” See McCabe v. Foley, 233 F.R.D. 683, 685 (M.D. Fla. 2006).

To evaluate whether there is a strong likelihood “the motion [to dismiss]

will be granted and entirely eliminate the need for such discovery,” the district 

court must take a “preliminary peek” at its merits. Feldman v. Flood, 176 

F.R.D. 651, 652–53 (M.D. Fla. 1997) (cleaned up). The court must also weigh 

“the harm produced by a delay in discovery” against “the likely costs and 

burdens of proceeding with discovery.” Id. at 652 (cleaned up). Both concerns 

are important—while a defendant should not be forced to expend substantial 

resources answering discovery when the plaintiff’s claims clearly lack merit, the 

delay and protraction of discovery can also create case management and 

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scheduling problems and unfairly hold up the prosecution of the case. See 

Chudasama, 123 F.3d at 1368-69; Feldman, 176 F.R.D. at 652-53. Ultimately, 

the proponent of the stay, here the Government, bears the burden of 

demonstrating its necessity, appropriateness, and reasonableness. McCabe, 

233 F.R.D. at 685. 

The Court has taken a preliminary peek at the merits of the 

Government’s motion to dismiss and “cannot say that this case,” at least as to 

count one, “is surely destined for dismissal.” Ray v. Spirit Airlines, Inc., 12-

61528-CIV, 2012 WL 5471793, at *2 (S.D. Fla. Nov. 9, 2012) (Scola, J.). While 

the Government’s argument that it is immune from suit may certainly have 

some merit, its motion does not appear, upon the Court’s “admittedly 

incomplete and preliminary review,” to be the kind of “slam-dunk,” resulting in 

the dismissal of an especially dubious claim, that ordinarily warrants a stay. 

Montoya v. PNC Bank, N.A., 14-20474-CIV, 2014 WL 2807617, at *2 (S.D. Fla. 

June 20, 2014) (Goodman, Mag. J.). At the same time, the Court acknowledges 

that the Government’s motion as to count two does appear likely to succeed: 

Griffin’s vague allegations as to damages, upon the Court’s preliminary review, 

appear insufficiently pleaded.1

Accordingly, there does not “appear[] to be an immediate and clear 

possibility” that the Government’s motion will end this litigation altogether. 

Simpson v. Specialty Retail Concepts, Inc., 121 F.R.D. 261, 263 (M.D.N.C. 

1988). Nor has the Government made a sufficient showing that “the likely costs 

and burdens of proceeding with discovery” outweigh “the harm produced by a 

delay in discovery.” Feldman, 176 F.R.D. at 652. In short, the Government has 

not convinced the Court of the stay’s “necessity, appropriateness, and 

1 The Court notes that, on the last page of his twenty-four-page response, Griffin requests leave 

to amend his complaint, again, should the Court dismiss any of his claims. (Pl.’s Resp. at 24.) 

But requesting leave to amend in this manner, as an afterthought and without any support, is 

both procedurally and substantively defective. See Newton v. Duke Energy Florida, LLC, 895 

F.3d 1270, 1277 (11th Cir. 2018) (“[W]here a request for leave to file an amended complaint 

simply is imbedded within an opposition memorandum, the issue has not been raised 

properly.”); Avena v. Imperial Salon & Spa, Inc., 740 F. App’x 679, 683 (11th Cir. 2018) (“[W]e’ve 

rejected the idea that a party can await a ruling on a motion to dismiss before filing a motion 

for leave to amend.”) (noting also that “a motion for leave to amend should either set forth the 

substance of the proposed amendment or attach a copy of the proposed amendment”) (cleaned 

up). This is especially so where the deadline to amend has passed, rendering such a request 

also untimely. Accordingly, Griffin is forewarned that, should the Court grant the Government’s 

motion, or any part of it, any dismissal (or partial dismissal) will be without leave to amend.

Case 1:22-cv-24023-RNS Document 79 Entered on FLSD Docket 12/22/2023 Page 2 of 3
reasonableness.” The Court thus denies the motion (ECF No. 68.)

Done and ordered, at Miami, Florida, on December 22, 2023.

________________________________

Robert N. Scola, Jr.

United States District Judge

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