United States District Court, W.D. Washington, Seattle
Jeffrey A. Ware, FENWICK & WEST LLP Attorneys for Amazon
Web Services, Inc.
A. Miller, Daniel J. Oates, Kellen A. Hade, MILLER NASH
GRAHAM & DUNN LLP Attorneys for Capital One Financial
M. Steiner, TERRELL MARSHALL LAW GROUP PLLC, Laurence D.
King, (admitted pro hac vice) Matthew George, (admitted pro
hac vice) Mario M. Choi, (admitted pro hac vice) KAPLAN FOX
& KILSHEIMER LLP Marc A. Wites, (admitted pro hac vice)
WITES LAW FIRM Attorneys for Plaintiff and the proposed Class
STIPULATED MOTION AND ORDER TO STAY
Michelle L. Peterson 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
Amazon Web Services, Inc. (“Amazon”) and Capital
One Financial Corporation (“Capital One”)
anticipate an order regarding transfer and consolidation of
this case and other related cases to be issued shortly
thereafter. Counsel for Plaintiff has advised that Plaintiff
agrees to the requested stay.
case is one of over 50 putative class actions filed in
connection with the cyber incident that Capital One announced
on July 29, 2019. Plaintiff filed the Complaint in this case
on August 5, 2019; Amazon was served on August 7, 2019; and
Amazon's deadline to answer or respond to the Complaint
is currently August 28, 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, the District for the District of Columbia, and
the Northern District of California. 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 50 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 over
20 cases related to the cyber incident. 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 JPML);
Francis v. Capital One Financial Corp., No.
8:19-cv-1898 (M.D. Fla. Aug. 21, 2019), ECF No. 11 (same);
Berger v. Capital One Financial Corp., No.
1:19-cv-2298 (D.D.C. Aug. 22, 2019) (same). Motions to stay
are currently pending in other cases, and Capital One-along
with AWS in the cases where it is named as a defendant- will
continue to seek stays in additional related cases.
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 inconsistent pretrial rulings,
and prevent prejudice to all parties. The stipulated stay is
not intended to prevent this District Court from relating or
coordinating this action with other related matters filed in
this District of its own volition during the pendency of the