United States District Court, W.D. Washington, Seattle
MICHAEL HOSKINSON-SHORT, KASSANDRA MCKOWN, PATRICK SOTO, MICHAEL J. HAUSER, DOROTHY E. HAUSER, JULIO VERA, BRENDY WOLFRAM, ERNESTO DE LA FE, TIMOTHY M. HAYDEN, NECROTIZING FASCIITIS FOUNDATION, LINDSAY WELCH, and JUAN HERNANDEZ, individually and on behalf of 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 Capital One Financial Corporation, Capital
One, N.A., and Capital One Bank (USA), N.A.
Jeffrey A. Ware, WSBA No. 43779 FENWICK & WEST LLP
Attorneys for Amazon.com, Inc. and Amazon Web Services, Inc.
M. Townsend, WSBA #25525 Breskin Johnson & Townsend PLLC
Joshua H. Grabar Grabar Law Office Marc H. Edelson Edelson
& Associates, LLC Attorneys for Plaintiffs
STIPULATED MOTION AND ORDER TO STAY
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT 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”) and Defendants Amazon.com, Inc. and Amazon Web
Services, Inc. (collectively, “Amazon”)
anticipate an order regarding transfer and consolidation of
this case and other related cases to be issued shortly
thereafter. Plaintiffs agree 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. On July 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 consolidated with the
Fadullon case and transferred to this District for pretrial
proceedings. Subsequently, numerous plaintiffs in other
related cases have filed briefs in the In re Capital
One matter supporting transfer and consolidation, but
seeking 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
30 cases related to the cyber incident. See, e.g.,
Ouellette v. Capital One Fin. Corp.,
2:19-cv-01203-MAT, Dkt. No. 32 (W.D. Wash. Aug. 29, 2019)
(order staying related case pending decision from the JPML);
Desoer v. Capital One Fin. Corp., 2:19-cv-01223-MLP,
Dkt. No. 19 (W.D. Wash. Aug. 29, 2019) (same); Hilker v.
Capital One Fin. Corp., No. 1:19-cv-995-RDA-JFA, Dkt.
No. 15 (E.D. Va. Aug. 16, 2019) (same); Francis v.
Capital One Fin. Corp., No. 8:19-cv-1898 (M.D. Fla. Aug.
21, 2019), Dkt. No. 11 (same); Berger v. Capital One Fin.
Corp., No. 1:19-cv-2298 (D.D.C. Aug. 22, 2019) (same);
Heath v. Capital One Fin. Corp., 3:19-cv-555-JAG,
Dkt. No. 14 (E.D. Va. Aug. 16, 2019) (order staying nine
related cases pending decision from the JPML). 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
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.