This is not the first time we have posted about Gallego v. Tandem Diabetes Care, Inc.  About six weeks ago we told you all about the excellent preemption decision that dismissed the entire case with prejudice except for a piece of the negligent design claim.  On that, plaintiff was given thirty days to file an amended complaint that sufficiently alleged both an FDA requirement and facts supporting a violation of that requirement.  On day twenty-eight, plaintiff moved for “pre-answer discovery” and an extension of the filing deadline.  Gallego, 2025 U.S. Dist. LEXIS 103545, *2 (E.D.N.Y. May 31, 2025). What plaintiff was actually asking for was “pre-complaint” discovery.  What the court said was: No.

Rather than file the more specific amended complaint the court ordered, plaintiff asked the court to compel defendant to produce no less than thirteen categories of documents ranging from broad policies and procedures to complaint reports to testing documents to the complete design files. Id. at * 4-5.  Perhaps putting the cart before the horse is too narrow an analogy.  This plaintiff was looking to fling open the corral doors and let all the horses run wild.  The scope of this “pre-complaint” discovery was virtually every type of document you would except a plaintiff to request after they pass TwIqbal—certainly not before. 

But scope barely factored into the court’s decision.  That is because it is a solidly established legal principle that “a plaintiff must allege facts supporting a plausible claim before being entitled to discovery.” Id. at *8 (citing numerous cases for this proposition).  Plaintiff’s complaint was dismissed for failure to state a plausible claim; therefore, he is not entitled to discovery unless and until that failure is remedied. While plaintiff claimed he could not “fully articulate” a claim without access to defendant’s documents, he cited no legal authority that circumvents the plausible pleading before discovery rule. 

While plaintiff tried to base his motion on “inconsistencies” in publicly available information, he neither specified the inconsistencies nor offered any explanation for why he believed the requested materials would resolve them.  Id. at *10-11.  He also argued there was information omitted from public reports, but again offered the court no specifics as to what was omitted or how it would aid in re-pleading his design defect claim.  Id. at *11.   In other words, plaintiff’s motion for “pre-complaint” discovery was just as vague as his original complaint. 

And yes, even if plaintiff had mustered a colorable argument for why discovery should be permitted, the proposed broad document requests were hardly tailored to be proportional to the needs of the case.  Id.  Indeed, it is difficult to understand how a court could apply the Federal Rules relevance and proportionality standards without a pending claim to know what the discovery is relevant and proportional to.

Plaintiff’s discovery requests were denied and he was given two weeks to file the amended complaint.  That two weeks is up soon. So, stay tuned to see if we have Gallego Part III.