Previously, we explored the merits of the summary judgment as a responsive pleading to a Complaint in trademark and copyright lawsuits. Let’s look at the other side of the coin. Why would you not file a summary judgment and instead opt for a rule 12b6 motion? I think the main reason is if you have a client that is reticent about discovery. However, even if that is the case, I could argue summary judgment is the way to go because a rule 56d request is tough and the plaintiff does not have a lot of time to put together such a motion.
Rule 56d provides in part that “if the non-moving party shows by declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: defer considering the motion or deny it; allow time to take discovery; or issue any other appropriate order.”
Notice that discovery under rule 56d is not mandatory. The requesting party must show: that it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; the facts sought exist and the sought after facts are essential to oppose summary judgment. Grant v. Unifund CCR Partners, 842 F.Supp.2d 1234, 1242 (C.D.Cal.2012) (citing State of Cal. v. Campbell, 138 F.3d 772, 779 (9th Cir.1998). This is a pretty tough hurdle to overcome on a legally deficient complaint. Even if discovery is allowed, it is likely to be very narrow and eliminate much of the typical motion to compel practice.