Pimental v. Google, Inc. et al

Filing 34

MOTION to Stay Discovery, filed by Google, Inc., Slide, Inc.. Responses due by 10/31/2011. (Attachments: # 1 Declaration, # 2 Proposed Order)(Wilson, Bobbie) (Filed on 10/26/2011) Modified on 10/27/2011 (jlm, COURT STAFF).

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1 2 3 4 PERKINS COIE LLP BOBBIE J. WILSON (Bar No. 148317) JOSHUA A. REITEN (Bar No. 238985) Four Embarcadero Center, Suite 2400 San Francisco, CA 94111-4131 Telephone: (415) 344-7000 Facsimile: (415) 344-7050 E-mail: bwilson@perkinscoie.com 5 6 7 8 9 DEBRA R. BERNARD (Pro hac vice) 131 S. Dearborn St., Suite 1700 Chicago, Il 60603 Telephone: (312) 324-8559 Facsimile: (312) 324-9559 E-mail: dbernard@perkinscoie.com Attorneys for Defendants GOOGLE INC. and SLIDE, INC. 10 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 OAKLAND DIVISION 14 15 16 NICOLE PIMENTAL and JESSICA FRANKLIN, individually and on behalf of all others similarly situated, 17 18 19 Plaintiffs, v. Case No. 11-cv-02585-SBA DEFENDANTS’ ADMINISTRATIVE MOTION FOR A TEMPORARY STAY OF DISCOVERY Place: Judge: Courtroom 1, 4th Floor Hon. Saundra Brown Armstrong GOOGLE INC., a Delaware corporation, and SLIDE, INC., a Delaware corporation, 20 Defendants. 21 22 This Document Relates to All Actions. 23 24 25 26 27 28 ADMINISTRATIVE MOTION FOR TEMPORARY STAY OF DISCOVERY Case No. 11-cv-02585-SBA 1 2 INTRODUCTION Currently pending before the Court is Defendants’ motion to dismiss Plaintiffs’ 3 Consolidated Class Action Complaint (the “Complaint”). That motion may dispose of this 4 putative class action in its entirety: it attacks not only the sufficiency of Plaintiffs’ allegations, but 5 also demonstrates that the Telephone Consumer Protection Act (“TCPA”)—under which 6 Plaintiffs bring their single claim—cannot be constitutionally interpreted to prohibit the 7 noncommercial text messages at issue here. This motion turns on questions of law and may be 8 decided without any discovery. As a result, Plaintiffs have no need for discovery at this time—in 9 fact, they have not asked for any in order to respond to the motion. 10 These circumstances justify the issuance of a temporary stay of discovery in this case 11 pending resolution of the motion to dismiss. Indeed, as the Ninth Circuit has recognized, “[t]he 12 purpose of [Rule] 12(b)(6) is to enable defendants to challenge the legal sufficiency of complaints 13 without subjecting themselves to discovery.” Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 14 729, 738 (9th Cir. 1987) (citations omitted). “[I]f the allegations of the complaint fail to establish 15 the requisite elements of the cause of action, our requiring costly and time consuming discovery 16 and trial work would represent an abdication of our judicial responsibility. It is sounder practice 17 to determine whether there is any reasonable likelihood that plaintiffs can construct a claim 18 before forcing the parties to undergo the expense of discovery.” Id. (citations and quotation 19 marks omitted). 20 If and when the appropriate time comes, Defendants will comply with their discovery 21 obligations, to the full extent that the law requires. In the meantime, however, Defendants should 22 not have to bear the burden and expense of responding to discovery given the potentially 23 dispositve motion to dismiss that is pending. Defendants therefore respectfully request that this 24 Court temporarily postpone discovery until Plaintiffs have satisfied the Court that they can state a 25 valid claim. 26 27 28 -1ADMINISTRATIVE MOTION FOR TEMPORARY STAY OF DISCOVERY Case No. 11-cv-02585-SBA 1 RELEVANT BACKGROUND 2 A. 3 This case centers on Defendants’ Disco service, which provides a platform for its users to This Action. 4 send group text messages to their friends and invite potential new users to the service. Text 5 messaging groups within Disco are created by the users themselves—not Defendants. These 6 groups are created when users provide the mobile phone numbers of the individuals they would 7 like to be group members. According to the Complaint, upon creation of a Disco group 8 Defendants send several unsolicited text messages to group members about how to use Disco, 9 including how to quit the service. Plaintiffs claim that they each received multiple such messages, even though they never 10 11 consented to receive any text messages through Disco or from Defendants. Plaintiffs contend that 12 Defendants’ transmission of these text messages violates the TCPA. On October 14, 2011, Defendants filed a motion to dismiss Plaintiffs’ action, on two 13 14 grounds. First, Plaintiffs failed to plead facts establishing that Defendants used an “automatic 15 telephone dialing system” to send the subject text messages, which is an essential element under 16 the TCPA. Second, the TCPA cannot be interpreted to reach the text messages at issue here 17 without violating the First Amendment. If granted, this motion would dispose of this action in its 18 entirety. 19 B. 20 On August 26, 2011, Defendants’ counsel and counsel for Plaintiff Pimental met and 21 conferred on case management topics, including how discovery should proceed in this case. 22 Defendants explained their position that discovery should not proceed at all unless/until the 23 pleadings are settled. Plaintiff Pimental preferred instead that discovery proceed without delay. 24 Those positions were set forth in the initial joint case management statement (Dkt. 15), and 25 reiterated in the further joint case management statement (Dkt. 27).1 Meet And Confer Efforts. 26 27 1 28 In the further joint case management statement, the parties agreed to exchange initial disclosures on November 1, 2011, in the event no stay of discovery issues. -2ADMINISTRATIVE MOTION FOR TEMPORARY STAY OF DISCOVERY Case No. 11-cv-02585-SBA 1 On October 20, 2011, Defendants’ counsel and counsel for Plaintiffs Pimental and 2 Franklin met and conferred again regarding a discovery stay. Defendants sought Plaintiffs’ 3 agreement that no discovery would proceed until the pleadings are settled. Plaintiffs declined to 4 agree. Although Plaintiffs have not yet served any discovery requests on Defendants, counsel for 5 Plaintiffs have indicated an intent to do so. Unable to secure an agreement to temporarily 6 postpone discovery, Defendants make this motion. 7 ARGUMENT 8 9 10 I. THE COURT SHOULD TEMPORARILY STAY DISCOVERY PENDING RESOLUTION OF DEFENDANTS’ DISPOSITIVE MOTION TO DISMISS. District courts have “broad discretion to stay discovery in a case while a dispositive 11 motion is pending.” Orchid Biosciences, Inc. v. St. Louis Univ., 198 F.R.D. 670, 672 12 (S.D.Cal.2001) (citing Data Disc, Inc. v. Sys. Tech. Associates, Inc., 557 F.2d 1280 (9th 13 Cir.1977)); see also Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (“The [D]istrict 14 [C]ourt has wide discretion in controlling discovery. Such rulings will not be overturned unless 15 there is a clear abuse of discretion.”) (citation omitted). 16 In deciding whether to stay discovery while dispositive pending motions are resolved, 17 courts consider two factors: “First, a pending motion must be potentially dispositive of the entire 18 case, or at least dispositive on the issue at which discovery is directed. Second, the court must 19 determine whether the pending dispositive motion can be decided absent additional discovery.” 20 Hanni v. American Airlines, Inc., No. 08-cv-00732-CW, 2009 WL 1505286, at *7 (N.D. Cal. 21 May 27, 2009) (granting motion to stay discovery pending disposition of motion to dismiss class 22 action) (quoting Pac. Lumber Co. v. Nat’l Union Fire Ins. Co., 220 F.R.D. 349, 351-52 (N.D. 23 Cal. 2003)); see also Qwest Commc’ns Corp. v. Herakles, LLC, No. 7-cv-00393, 2007 WL 24 2288299, at *2 (E.D. Cal. 2007). Here, both factors are readily satisfied. 25 First, Defendants’ pending motion to dismiss aims to dispose of this action entirely: it 26 asserts that the TCPA should be interpreted to permit the noncommercial, informational text 27 messages alleged here because any other interpretation would unconstitutionally restrict 28 noncommercial speech initiated by users of Defendants’ text messaging platform. As explained -3ADMINISTRATIVE MOTION FOR TEMPORARY STAY OF DISCOVERY Case No. 11-cv-02585-SBA 1 in the motion to dismiss, the defects in the Complaint cannot be cured by amendment. For 2 example, if the Court agrees with Defendants that the noncommercial, informational text 3 messages at issue here cannot be proscribed by the TCPA without violating the First Amendment, 4 then further allegations from Plaintiffs will not likely save their claim. 5 Second, this motion may be decided without any discovery; indeed, Plaintiffs have not 6 requested any discovery on the motion. Given the broad scope of the motion and its lack of need 7 for any discovery, this case readily satisfies the “two part” test often used by federal courts in 8 California when deciding whether to stay discovery pending a motion to dismiss. Hanni, 2009 9 WL 1505286, at *7 (N.D. Cal. May 27, 2009). 10 11 II. TEMPORARILY STAYING DISCOVERY WILL AVOID UNNECESSARY BURDEN AND EXPENSE AND WILL NOT PREJUDICE PLAINTIFFS. 12 Discovery in this putative class action, like so many others, threatens to be time 13 consuming and expensive. Indeed, Plaintiffs seek to certify at least one nationwide class and one 14 nationwide subclass; and they seek relief against two defendants, one of which—Defendant 15 Slide—has the majority of its witnesses, documents, and other evidence located overseas. But 16 requiring the parties to incur the substantial and expensive burden necessarily associated with 17 discovery—including multiple depositions abroad; propounding and responding to discovery 18 requests; document collection, analysis, and review; meet and confer efforts; and discovery 19 motions—is not warranted given that there is a pending motion to dismiss, the resolution of 20 which may end this case. 21 Furthermore, a temporary stay of discovery will not prejudice Plaintiffs. If Plaintiffs can 22 convince this Court in the future that they can state a valid claim as a matter of law, they may 23 then proceed to obtain all documents and other discovery to which they are entitled. See Orchid 24 Biosciences, 198 F.R.D. at 675 (“Should Defendant prevail on its motion to dismiss, any effort 25 expended in responding to merits-related discovery would prove to be a waste of both parties’ 26 time and resources. Should Defendant’s motion be denied, however, Plaintiff will still have 27 ample time and opportunity to conduct discovery on the merits.”). 28 -4ADMINISTRATIVE MOTION FOR TEMPORARY STAY OF DISCOVERY Case No. 11-cv-02585-SBA 1 This is not a case in which there is any concern that evidence will disappear or that 2 witnesses will die, flee the country, or otherwise abscond with key evidence, or that any other 3 legally cognizable prejudice may befall Plaintiffs if discovery does not occur immediately. If 4 Plaintiffs are convinced that they can state a valid claim, they should have little concern that they 5 will eventually obtain the discovery to which they are entitled. But, if Defendants are correct that 6 Plaintiffs cannot, this Court can save the parties (and itself) the considerable time and expense of 7 the burdensome discovery process.2 8 CONCLUSION 9 10 For all the foregoing reasons, Defendants respectfully request that the Court issue an order staying all discovery and mandatory disclosures pending resolution of the pleadings in this case. 11 12 DATED: October 26, 2011 PERKINS COIE LLP 13 By: /s/ Bobbie J. Wilson BOBBIE J. WILSON 14 15 Attorneys for Defendants GOOGLE INC. and SLIDE, INC. 16 17 18 19 20 21 22 23 24 25 26 2 27 28 To the extent Plaintiffs argue that issuing a stay would unnecessarily delay this action, Defendants are willing to stipulate to advance the hearing date on the motion to dismiss, if the Court’s calendar permits. The hearing on the motion is currently scheduled for February 28, 2012 (which was the earliest available hearing date). Defendants have no interest in prolonging resolution of that motion. -5ADMINISTRATIVE MOTION FOR TEMPORARY STAY OF DISCOVERY Case No. 11-cv-02585-SBA

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