United States District Court

EASTERN DISTRICT OF TEXAS

Behavior Analyst Certification Board

Plaintiffs

v.

Dr. Michael Moates, Misty Kiesch ick, and the

Global Institute for Behavior Practitioners and

Examiners

Defendants

Case No.: 4:23-cv-00194-ALM

JURY TRIAL DEMANDED

FILED

JUN 2 0 2023

Clerk, U.S. District Court

Eastern District of Texas

RESPONSE TO THE DEFENDANTS REPLY

RESPONSE TO MOTION TO STAY

DEADLINES

Case 4:23-cv-00194-ALM Document 30 Filed 06/20/23 Page 1 of 3 PageID #: 165
Defendant Misty Kieschnick respectfully submits its Reply to the ESPONSE TO MOTION TO

STAY DEADLINES and, as grounds therefor, states the following:

1. It is the position of Defendant Kieschnick that the motion to dismiss submitted by the

defendant, Kieschnick, should be ruled on first before addressing Plaintiffs reply to the

motion to stay. This argument finds support in the procedural rules and case law

governing the order of motions and the efficient resolution of legal disputes.

2. Rule 12 of the Federal Rules of Civil Procedure allows a party to file a motion to dismiss

for various reasons, including lack of subject matter jurisdiction, insufficient service of

process, failure to state a claim upon which relief can be granted, and more. When a

motion to dismiss is filed, it seeks a determination from the court as to whether the

plaintiffs claims are legally sufficient to proceed with the case.

3. In certain circumstances, courts have recognized that resolving dispositive motions, such

as motions to dismiss, should take precedence over other pending motions. This approach

serves the interest of the judicial economy and promotes the early resolution of cases

where a motion to dismiss has the potential to dispose of the entire litigation. The

rationale behind this approach is to avoid unnecessary litigation and conserve judicial

resources.

4. The Supreme Court, in Bell Atlantic Corp. v. Twombly, emphasized the importance of

evaluating the plausibility of a complaint's allegations at the pleading stage [Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007)]. This requirement ensures that the plaintiffs

claims meet a certain threshold of legal sufficiency and have a reasonable chance of

success. Resolving the motion to dismiss before addressing other matters such as a

motion to stay, allows for an early determination of whether the plaintiff has alleged

sufficient facts to support a viable claim.

5. Lower courts have also acknowledged the priority iven to motions to dismiss. In Doe v.

Harvard Pilgrim Health Care, Inc., the court ruled that the threshold question of whether

the complaint states a claim upon which relief can be granted should be resolved before

considering other motions, such as a motion to stay Doe v. Harvard Pilgrim Health Care,

Inc., 192 F. Supp. 3d 234 (D. Mass. 2016). This pproach ensures that the court focuses

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on the dispositive issues that can potentially dispose of the case before addressing other

procedural matters.

6. Therefore, based on the Supreme Court's guidance and the approach taken by lower

courts, the motion to dismiss should be ruled on before addressing the plaintiffs reply to

the motion to stay. This approach promotes judicial efficiency and allows for an early

determination of the viability of the plaintiffs claims.

7. In addition, given the fact that Plaintiff alleges not only a civil cause of action but one

that could be charged under criminal law per Section 43.02 of the Texas Penal Code, all

Defendants have the right to refuse to tallc to them under the Fifth Amendment of the

United States Constitution. At this time, Defendant Kieschnick elects not to communicate

with them and asks that this court exempt her from the rule as it would violate her

Constitutional Right to Due Process and right not to speak under the concepts outlined in

Miranda v Arizona (1996).

Thank you for your consideration,

/ / Misty Kieschnick, Pro Se

9448 Castlewood Drive

Fort Worth, Texas 76131

817-657-7224

m.kieschnick@att.net

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Case 4:23-cv-00194-ALM Document 30 Filed 06/20/23 Page 3 of 3 PageID #: 167