United States District Court, W.D. Washington, Seattle
NATHAN OUELLETTE, JESI AN E. RODRIGUEZ, GREGG STAPPAS, AND CB HOME, INC., individually and on behalf of all those similarly situated, Plaintiffs,
CAPITAL ONE FINANCIAL CORPORATION, CAPITAL ONE, N.A., CAPITAL ONE BANK USA, N.A., AMAZON.COM, INC., and AMAZON WEB SERVICES, INC., Defendants.
A. Miller, WSBA No. 30388 Daniel J. Oates, WSBA No. 39334
Kellen A. Hade, WSBA No. 44535 MILLER NASH GRAHAM & DUNN
LLP Attorneys for Capitol One Defendants
Jeffrey A. Ware, WSBA No. 43779 FENWICK & WEST LLP
Attorneys for Amazon, Inc., and Amazon Web Services, Inc.
TOUSLEY BRAIN STEPHENS PLLC Kim D. Stephens, WSBA #11984
Jason T. Dennett, WSBA #30686 Kaleigh N.B. Powell, WSBA
#52684 James J. Pizzirusso, admitted pro hac vice Swathi
Bojedla, admitted pro hac vice Theodore F. DiSalvo, admitted
pro hac vice HAUSFELD LLP Adam J. Levitt, admitted pro hac
vice Amy E. Keller, admitted pro hac vice DICELLO LEVITT
GUTZLER LLC Andrew N. Friedman, admitted pro hac vice COHEN
MILSTEIN SELLERS & TOLL PLLC E. Michelle Drake, admitted
pro hac vice BERGER MONTAGUE, PC Daniel L. Warshaw, admitted
pro hac vice Matthew A. Pearson, admitted pro hac vice
PEARSON, SIMON & WARSHAW, LLP Counsel for Plaintiffs and
STIPULATED MOTION AND ORDER TO STAY
ALICE THEILER UNITED STATES MAGISTRATE JUDGE.
to LCR 7(d)(1) and LCR 10(g), the parties hereby request that
the Court stay all proceedings and deadlines in this action
pending resolution of the motions for transfer and
consolidation under 28 U.S.C. § 1407 that are currently
pending before the Judicial Panel on Multidistrict Litigation
(“JPML”). The JPML will hear oral argument on the
Section 1407 motions on September 26, 2019, and Defendants
Capital One Financial Corporation, Capital One, N.A., and
Capital One Bank (USA), N.A. (collectively, “Capital
One”) anticipate an order regarding transfer and
consolidation of this case and other related cases to be
issued shortly thereafter. All the other parties in this
action, including Plaintiffs and Defendants Amazon.com, Inc.
and Amazon Web Services, Inc., agree to the requested stay.
case is one of over 45 putative class actions filed in
connection with the cyber incident that Capital One announced
on July 29, 2019. Plaintiffs filed the Complaint in this case
on August 1, 2019; Capital One was served on August 5, 2019;
and Capital One's deadline to answer or respond to the
Complaint is currently August 26, 2019.
31, 2019, plaintiffs in a related case pending in this
District, Fadullon v. Capital One Financial
Corporation, et al., No. 2:19-cv-01189 (W.D. Wash.,
filed July 30, 2019), filed a motion for consolidation and
transfer under 28 U.S.C. § 1407 with the JPML in In
re Capital One Consumer Data Breach Litigation, MDL No.
2915 (J.P.M.L. July 31, 2019) (“In re Capital
One”). See In re Capital One, Dkt. No. 1. That motion
seeks to have related actions arising out of the Capital One
cyber incident, including this case, consolidated with the
Fadullon case and transferred to this District for pretrial
proceedings. Subsequently, plaintiffs in other related cases
have filed briefs in the In re Capital One matter that
support transfer and consolidation, but seek other transferee
courts, including the Eastern District of Virginia,
Alexandria Division (id. at Dkt. Nos. 5 and 7) and
the District of the District of Columbia (id. at
Dkt. No. 8). Numerous notices of related actions have also
been filed in In re Capital One, and additional related cases
continue to be filed and are in the process of being noticed
to the JPML as potential tag-along actions.
that over 45 putative class actions have been filed, all
related to the same underlying event and asserting the same
or substantially similar factual allegations, the JPML is
highly likely to grant the motions for transfer and
consolidation. If it does, to conserve the parties'
resources and promote judicial economy, this case will be
consolidated with the other putative class actions for
centralized pretrial proceedings in a single transferee
court. Under these circumstances, “[c]ourts frequently
grant stays pending a decision by the MDL Panel regarding
whether to transfer a case.” Good v. Prudential
Ins. Co. of Am., 5 F.Supp.2d 804, 809 (N.D. Cal. 1998);
see Short v. Hyundai Motor Am. Inc., No.
C19-0318JLR, 2019 WL 3067251 (W.D. Wash. July 12, 2019)
(granting stay pending JPML's resolution of Section 1407
motion); Gonzalez v. Merck & Co., No.
CV-07-3034-LRS, 2007 WL 2220286, at *2 (E.D. Wash. Aug.
2, 2007) (granting defendant's motion to stay pending
transfer decision and noting that “well settled case
law . . . dictates a stay should be granted to promote
judicial economy”); Rivers v. Walt Disney Co.,
980 F.Supp. 1358, 1362 (C.D. Cal. 1997) (granting stay
pending JPML's ruling because “a majority of courts
have concluded that it is often appropriate to stay
preliminary pretrial proceedings while a motion to transfer
and consolidate is pending with the MDL Panel”);
Bonefant v. R.J. Reynolds Tobacco Co., No.
07-60301-CIV, 2007 WL 2409980, at * 1 (S.D. Fla. July 31,
2007) (“[I]t is common practice for courts to stay an
action pending a transfer decision by the JPML.”). In
fact, Capital One has already successfully moved to stay
numerous cases related to the cyber incident, and to date no
court has denied a request to stay a case related case. See,
e.g., Heath, et al. v. Capital One Financial Corp., et
al., 3:19-cv-555-JAG, Dkt. No. 14 (E.D. Va. Aug. 16,
2019) (order staying nine related cases pending decision from
the JPML); Hilker v. Capital One Financial Corp., et al.,
No. 1:19-cv-995-RDA-JFA Dkt. No. 15 (E.D. Va. Aug. 16,
2019) (order staying related case pending decision from the
too, a short stay of proceedings until the JPML resolves the
pending Section 1407 motions will promote judicial economy
and sound judicial administration, avoid duplicative pretrial
proceedings and potentially ...