Gurminder Singh v. Google, Inc.

Filing 41

ORDER DENYING 33 MOTION FOR STAY OF DISCOVERY. Signed by Judge Beth Labson Freeman on 11/4/2016. (blflc2S, COURT STAFF) (Filed on 11/4/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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GURMINDER SINGH,

Case No. 16-cv-03734-BLF

Plaintiff,
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v.

ORDER DENYING MOTION FOR
STAY OF DISCOVERY

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GOOGLE, INC.,

[Re: ECF 33]

Defendant.
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United States District Court
Northern District of California

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Defendant Google, Inc. (“Google”) filed a motion for a stay of discovery pending

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resolution of Defendants’ motion to dismiss. Mot., ECF 33. For the reasons set forth below,

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Defendants’ request for a stay of discovery is DENIED.

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Plaintiff Gurminder Singh is an advertiser in Google’s AdWords program. On September

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9, 2016, Plaintiff filed a First Amended Complaint (“FAC”) on behalf of a putative class of

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AdWords advertisers, alleging that Google failed to prevent invalid clicks on unspecified

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AdWords advertisements. See generally First Am. Compl., ECF 14. Google filed a motion to

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dismiss on October 24, 2016, and simultaneously filed the instant motion to stay discovery

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pending the outcome of the motion to dismiss. ECF 32, 33. Singh’s opposition to the motion to

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dismiss is due November 28, 2016, and Google’s reply is due December 19, 2016. ECF 38.

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“The Federal Rules of Civil Procedure do not provide for automatic or blanket stays of

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discovery when a potentially dispositive motion is pending.” Tradebay, LLC v. eBay, Inc., 278

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F.R.D. 597, 600 (D. Nev. 2011). “Had the Federal Rules contemplated that a motion to dismiss

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under Fed. R. Civ. Pro. 12(b)(6) would stay discovery, the Rules would contain a provision to that

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effect. In fact, such a notion is directly at odds with the need for expeditious resolution of

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litigation.” Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. Cal. 1990). However, a

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district court does have “wide discretion in controlling discovery,” Little v. City of Seattle, 863

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F.2d 681, 685 (9th Cir. 1988), and that discretion extends to staying discovery upon a showing of

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“good cause,” see Fed. R. Civ. P. 26(c)(1)(A). Good cause for staying discovery may exist when

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the district court is “‘convinced that the plaintiff will be unable to state a claim for relief.’”

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Wenger v. Monroe, 282 F.3d 1068, 1077 (9th Cir. 2002) (quoting Wood v. McEwen, 644 F.2d 797,

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801 (9th Cir. 1981)); see also Tradebay, 278 F.R.D. at 601 (“Staying discovery when a court is

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convinced that the plaintiff will be unable to state a claim for relief furthers the goal of efficiency

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for the court and the litigants.”). Under Ninth Circuit law, “[a] party seeking a stay of discovery

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carries the heavy burden of making a ‘strong showing’ why discovery should be denied.” Gray,

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133 F.R.D. at 40 (citation omitted).

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Courts in this district have applied a two-pronged test to determine whether discovery
should be stayed pending resolution of a dispositive motion. See, e.g., Gibbs v. Carson, No. C-13-

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United States District Court
Northern District of California

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0860, 2014 WL172187, at *3 (N.D. Cal. Jan. 15, 2014); Hamilton v. Rhoads, No. C 11-0227

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RMW (PR), 2011 WL 5085504, at *1 (N.D. Cal. Oct. 25, 2011); Pac. Lumber Co. v. Nat’l Union

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Fire Ins. Co. of Pittsburgh, PA, 220 F.R.D. 349, 351 (N.D. Cal. 2003). First, a pending motion

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must be potentially dispositive of the entire case, or at least dispositive on the issue at which

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discovery is directed. Pac. Lumber Co., 220 F.R.D. at 351 (citation omitted). Second, the court

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must determine whether the pending motion can be decided absent discovery. Id. at 352 (citation

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omitted). “If the Court answers these two questions in the affirmative, a protective order may

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issue. However, if either prong of this test is not established, discovery proceeds.” Id. In

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applying this two-factor test, the court must take a “preliminary peek” at the merits of the pending

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dispositive motion to assess whether a stay is warranted. Tradebay, 278 F.R.D. at 602.

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Google seeks a stay of discovery to spare the parties from “needless discovery burdens”

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before the legal sufficiency of the FAC has been tested, and to spare the Court from having to

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address possible discovery disputes in a case that may never proceed past the motion to dismiss

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stage. Mot. 3. Google also contends that because Plaintiff has not alleged that he pursued his

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claims in Google’s claim process as required by the AdWords Agreement, he cannot proceed in

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this action. Id. Therefore, a stay is appropriate here.

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Plaintiff contends, however, that Google has failed to meet its burden of showing why a
stay should be imposed. See generally Opp’n, ECF 36. Singh makes three arguments regarding
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why Defendant’s motion should be denied: First, Google offers no particular or specific facts to

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support its assertion that a stay of discovery is necessary to spare the parties from the burdens of

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discovery. Opp’n 2. Second, the Court should not be asked to weigh the merits of Defendant’s

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motion to dismiss before Singh has had the opportunity to respond to it, and because Google has

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not shown that the purported deficiencies could not be cured by amendment. Id. at 3–4. Finally, a

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stay of discovery would prejudice Plaintiff. Id. at 4.

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The Court does not find merit in Defendant’s motion for two reasons. First, Defendant

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assumes that even if the Court finds that all of the claims are deficient for Plaintiff’s failure to

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allege that he pursued his claims in Google’s claims process, as purportedly required by the
AdWords agreement, the Court would not grant Plaintiff leave to amend. Additionally, Plaintiff

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United States District Court
Northern District of California

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has not yet responded to the motion to dismiss and thus, the Court cannot, by a “preliminary

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peek,” assess the merits of the motion. Thus, even if Defendant were correct that Plaintiff’s

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claims must be dismissed as alleged, the Court would consider whether leave to amend should be

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granted, rendering Google’s motion not dispositive. See Nat’l Union Fire Ins. Co. of Pittsburgh,

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PA v. Res. Dev. Servs., Inc., No. C 10-1324, 2010 WL 3746290, at *1 (N.D. Cal. Sept. 18, 2010)

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(denying motion to stay discovery where defendant assumed that the court would not grant

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plaintiff leave to amend any deficient claims).

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Additionally, Google has not demonstrated that denial of the stay would be burdensome.

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Plaintiff correctly states that Google fails to identify any discovery burdens, and offers no

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particular or specific facts to support its assertion that a stay would be necessary to spare the

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parties or the Court from the “burden” of discovery. Opp’n 2; see Mot. 3.

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For the reasons set forth above, Defendants’ request for a stay of discovery is DENIED.

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IT IS SO ORDERED.

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Dated: November 4, 2016
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BETH LABSON FREEMAN
United States District Judge

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