After my post regarding the heightened pleading requirements in effect after the U.S. Supreme Court decision in Bell Atlantic v. Twombly, someone wrote and asked me what would happen if you knew some facts, perhaps enough to state a claim under the old pleading rules, but didn't know enough to survive a motion to dismiss under the pleading requirements in effect since Bell Atlantic. That is a most interesting question.

It would appear that the solution would be to file the complaint, alleging what you know.  Then, when the defendant makes the inevitable motion to dismiss, you respond to the court with a request to take limited discovery prior to filing your response to the motion to dismiss.  It would be prudent to tell the court why you need the discovery, such as that the facts are in the exclusive control of the defendant and cannot be discovered unless you have access to procedures under the discovery rules.  Once you have the discovered facts, you can move to amend your complaint.  The court should be amenable to an amended complaint since it will have granted you discovery for just that purpose.

Some jurisdictions also have a procedure called a "Complaint for Discovery."  In such jurisdictions, you can file the complaint requesting only the necessary discovery, then filing a suit based upon the real complaint once all the facts are known.  If you are in such a jurisdiction, and that jurisdiction begins to follow Bell Atlantic (at this point there is simply no way to know how the state courts are going to interpret their rules, most of which are identical to Federal Rule 8), then the complaint for discovery process would seem to be tailor made for just this situation.

This is going to be an evolving area for quite some time and you are likely to see more 12(b)(6) motions being made than we did before.

~Tim