Desoer v. Capital One Financial Corporation

1 THE HONORABLE MICHELLE L. PETERSON [6] 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 MICHELE DESOER, Case No.: 2:19-cv-01223-MLP 10 Plaintiff, STIPULATED MOTION AND ORDER 11 v. TO STAY 12 CAPITAL ONE FINANCIAL CORPORATION; AMAZON WEB SERVICES, INC., [13] Defendants. [15] 16 STIPULATION 17 Pursuant to LCR 7(d)(1) and LCR 10(g), the parties hereby request that the Court stay all 18 proceedings and deadlines in this action pending resolution of the motions for transfer and 19 consolidation under 28 U.S.C. § 1407 that are currently pending before the Judicial Panel on 20 Multidistrict Litigation (“JPML”). The JPML will hear oral argument on the Section 1407 motions 21 on September 26, 2019, and Defendants Amazon Web Services, Inc. (“Amazon”) and Capital One 22 Financial Corporation (“Capital One”) anticipate an order regarding transfer and consolidation of 23 this case and other related cases to be issued shortly thereafter. Counsel for Plaintiff has advised 24 that Plaintiff agrees to the requested stay. 25 This case is one of over 50 putative class actions filed in connection with the cyber incident 26 that Capital One announced on July 29, 2019. Plaintiff filed the Complaint in this case on 27 August 5, 2019; Amazon was served on August 7, 2019; and Amazon’s deadline to answer or 1 On July 31, 2019, plaintiffs in a related case pending in this District, Fadullon v. Capital 2 One Financial Corporation, et al., Case No. 2:19-cv-01189 (W.D. Wash., filed July 30, 2019), 3 filed a motion for consolidation and transfer under 28 U.S.C. § 1407 with the JPML in In re Capital 4 One Consumer Data Breach Litigation, MDL No. 2915 (J.P.M.L. July 31, 2019) (“In re Capital 5 One”). See In re Capital One, Dkt. No. 1. That motion seeks to have related actions arising out 6 of the Capital One cyber incident, including this case, consolidated with the Fadullon case and 7 transferred to this District for pretrial proceedings. Subsequently, plaintiffs in other related cases 8 have filed briefs in the In re Capital One matter that support transfer and consolidation, but seek 9 other transferee courts, including the Eastern District of Virginia, the District for the District of 10 Columbia, and the Northern District of California. Numerous notices of related actions have also 11 been filed in In re Capital One, and additional related cases continue to be filed and are in the 12 process of being noticed to the JPML as potential tag-along actions. 13 Given that over 50 putative class actions have been filed, all related to the same underlying 14 event and asserting the same or substantially similar factual allegations, the JPML is highly likely 15 to grant the motions for transfer and consolidation. If it does, to conserve the parties’ resources 16 and promote judicial economy, this case will be consolidated with the other putative class actions 17 for centralized pretrial proceedings in a single transferee court. Under these circumstances, 18 “[c]ourts frequently grant stays pending a decision by the MDL Panel regarding whether to transfer 19 a case.” Good v. Prudential Ins. Co. of Am., 5 F.Supp.2d 804, 809 (N.D. Cal. 1998); see Short v. 20 Hyundai Motor Am. Inc., No. C19-0318JLR, 2019 WL 3067251 (W.D. Wash. July 12, 2019) 21 (granting stay pending JPML’s resolution of Section 1407 motion); Gonzalez v. Merck & Co., No. 22 CV-07-3034-LRS, 2007 WL 2220286 , at *2 (E.D. Wash. Aug. 2, 2007) (granting defendant’s 23 motion to stay pending transfer decision and noting that “well settled case law . . . dictates a stay 24 should be granted to promote judicial economy”); Rivers v. Walt Disney Co., 980 F. Supp. 1358 , 25 1362 (C.D. Cal. 1997) (granting stay pending JPML’s ruling because “a majority of courts have 26 concluded that it is often appropriate to stay preliminary pretrial proceedings while a motion to 27 transfer and consolidate is pending with the MDL Panel”); Bonefant v. R.J. Reynolds Tobacco Co., 1 for courts to stay an action pending a transfer decision by the JPML.”). In fact, Capital One has 2 already successfully moved to stay over 20 cases related to the cyber incident. See, e.g., Heath, et 3 al. v. Capital One Financial Corp., et al., 3:19-cv-555-JAG, Dkt. No. 14 (E.D. Va. Aug. 16, 2019) 4 (order staying nine related cases pending decision from the JPML); Hilker v. Capital One 5 Financial Corp., et al., No. 1:19-cv-995-RDA-JFA Dkt. No. 15 (E.D. Va. Aug. 16, 2019) (order 6 staying related case pending decision from the JPML); Francis v. Capital One Financial Corp., 7 No. 8:19-cv-1898 (M.D. Fla. Aug. 21, 2019), ECF No. 11 (same); Berger v. Capital One Financial 8 Corp., No. 1:19-cv-2298 (D.D.C. Aug. 22, 2019) (same). Motions to stay are currently pending 9 in other cases, and Capital One—along with AWS in the cases where it is named as a defendant— 10 will continue to seek stays in additional related cases. 11 Here, too, a short stay of proceedings until the JPML resolves the pending Section 1407 12 motions will promote judicial economy and sound judicial administration, avoid duplicative 13 pretrial proceedings and potentially inconsistent pretrial rulings, and prevent prejudice to all 14 parties. The stipulated stay is not intended to prevent this District Court from relating or 15 coordinating this action with other related matters filed in this District of its own volition during 16 the pendency of the JPML proceedings. 17 IT IS SO STIPULATED. 18 DATED this 28th day of August, 2019 Respectfully submitted, [19] By: s/ Jeffrey A. Ware 20 Jeffrey A. Ware, WSBA No. 43779 21 FENWICK & WEST LLP 1191 Second Avenue, 10th Floor 22 Seattle, WA 98101 Tel: (206) 389-4510 23 Fax: (206) 389-4511 Email: jware@fenwick.com [24] Attorneys for Amazon Web Services, Inc. [27] 1 Stipulation agreed to by: 2 By: s/Steven A. Miller Steven A. Miller, WSBA No. 30388 3 By: s/Daniel J. Oates Daniel J. Oates, WSBA No. 39334 4 By: s/Kellen A. Hade Kellen A. Hade, WSBA No. 44535 [5] MILLER NASH GRAHAM & DUNN LLP 6 Pier 70, 2801 Alaskan Way, Suite 300 Seattle, WA 98121-1128 7 Tel: (206) 624-8300 Fax: (206) 340-9599 8 Email: steve.miller@millernash.com dan.oates@millernash.com 9 kellen.hade@millernash.com 10 Attorneys for Capital One Financial Corporation [11] By: s/ Amanda M. Steiner [12] Amanda M. Steiner, WSBA #29147 [13] TERRELL MARSHALL LAW GROUP PLLC 14 936 North 34th Street, Suite 300 Seattle, Washington 98103 15 Tel: (206) 816-6603 Email: asteiner@terrellmarshall.com [16] 17 Laurence D. King, (admitted pro hac vice) lking@kaplanfox.com 18 Matthew George, (admitted pro hac vice) mgeorge@kaplanfox.com 19 Mario M. Choi, (admitted pro hac vice) mchoi@kaplanfox.com [20] KAPLAN FOX & KILSHEIMER LLP 21 350 Sansome Street, Suite 400 San Francisco, California 94104 22 Tel: (415) 772-4700 Fax: (415) 772-4707 [23] Marc A. Wites, (admitted pro hac vice) [24] mwites@witeslaw.com 25 WITES LAW FIRM 4400 North Federal Highway 26 Lighthouse Point, Florida 33064 Tel: (954) 933-4400 [27] Attorneys for Plaintiff and the proposed Class and 1 ORDER GRANTING STIPULATED MOTION TO STAY [2] 3 IT IS SO ORDERED. 4 Dated this 29th day of August, 2019. [5] 6 A 7 MICHELLE L. PETERSON United States Magistrate Judge