In re Nexus 6P Products Liability Litigation

Filing 84

ORDER GRANTING 41 DEFENDANTS' JOINT MOTION TO STAY DISCOVERY. Signed by Judge Beth Labson Freeman on 8/18/2017. (blflc2S, COURT STAFF) (Filed on 8/18/2017)

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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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In re NEXUS 6P PRODUCTS LIABILITY
LITIGATION.

Case No. 17-cv-02185-BLF
ORDER GRANTING DEFENDANTS’
MOTION TO STAY DISCOVERY

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United States District Court
Northern District of California

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Presently before the Court is the joint motion to stay discovery brought by Defendants

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Huawei Device USA, Inc. (“Huawei”) and Google Inc. (“Google”) (collectively, “Defendants”).

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Mot., ECF 41. On May 23, 2017, Plaintiffs filed a Consolidated Amended Complaint (“Compl.”)

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on behalf of a nationwide putative class and 12 separate state putative classes of consumers

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against Defendants alleging twenty-three causes of action related to their sale and marketing of

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allegedly defective Nexus 6P smartphones. ECF 28. Defendants have filed respective motions to

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dismiss Plaintiffs’ Consolidated Amended Complaint, which are each scheduled for a hearing on

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November 16, 2017. ECF 38, 39. Both motions to dismiss are fully briefed. The present motion

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to stay discovery is also fully briefed. ECF 46, 47. The Court heard oral argument on August 17,

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2017. The Court has considered the parties’ briefing and oral argument presented at the hearing.

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For the reasons stated on the record and below, the Court GRANTS the request to stay discovery

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until the hearing on Defendants’ motions to dismiss on November 16, 2017.

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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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United States District Court
Northern District of California

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133 F.R.D. at 40 (citation omitted).
Courts in this district have applied a two-pronged test to determine whether discovery

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should be stayed pending resolution of a dispositive motion. See, e.g., Gibbs v. Carson, No. C-13-

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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 and Huawei initially appear to request a stay of discovery “pending resolution of

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their respective Motions to Dismiss,” which they define as “at least until there is an operative

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complaint.” Mot. 6. However, they later clarify that they are requesting a stay of discovery at least

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until the hearing on the motions to dismiss on November 16, 2017. Reply 7-8. Plaintiffs argue

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that no stay of discovery in this case is warranted, particularly because the discovery Plaintiffs

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have served thus far is “straightforward and targeted at the core issues in the case.” Opp’n 1.
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Google disagrees, and argues that Plaintiffs’ twelve document requests are overbroad and may

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“fall out altogether or be significantly limited after the Court rules on the motion to dismiss.”

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Reply 6.
The Court has taken a “preliminary peek” at the merits of the underlying motions to

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dismiss in considering whether a limited stay is warranted in this case. Tradebay, 278 F.R.D. at

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602. Google and Huawei move to dismiss the Consolidated Amended Complaint on different

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grounds, thus the Court must consider the dispositive nature of their arguments for dismissal

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separately. Huawei has a threshold personal jurisdictional challenge to Plaintiffs’ claims that

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could be dispositive of, or drastically alter, Huawei’s continued involvement in this case.
Although the Court notes that there could be a distinction with respect to Huawei’s claim-related

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United States District Court
Northern District of California

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contacts with California in this case in comparison to the defendant’s contacts with California in

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Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., the Court need not

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determine whether it has personal jurisdiction over Huawei at this stage. 137 S.Ct. 1773, 1778

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(2017).1 Rather, the Court is satisfied that the personal jurisdiction argument is potentially

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dispositive of the entire case as to Huawei. See Pac. Lumber Co., 220 F.R.D. at 351 (citation

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omitted).

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Turning to the claims against Google, although there does not appear to be a “silver bullet”

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defense, Google’s motion to dismiss presents strong arguments for dismissal of Plaintiffs’ express

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warranty claims. Plaintiffs allege that Google’s public statements and advertisements about the

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Nexus 6P give rise to either express warranties or actionable misrepresentations. However,

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Google has requested judicial notice of Google’s Terms of Sale for Devices which are

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incorporated by reference into the complaint and contain an express warranty disclaimer. Mot. 4.

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These claims could prove difficult for Plaintiffs to overcome, even with leave to amend freely

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given. Thus, the Court finds that Google’s motion to dismiss could be potentially dispositive of

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the express warranty claims, which in turn would limit the scope of discovery.

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Moreover, the Supreme Court expressly left open the question of whether its decision in BristolMyers applies in federal courts or to class actions. 137 S. Ct. at 1784, 1789 n.4.
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The Court also notes that the pending motions to dismiss are fully briefed, and can be

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decided without additional discovery. Pac. Lumber Co., 220 F.R.D. at 352. Therefore, the Court

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finds that under Ninth Circuit law and the two-pronged approach applied by courts in this district,

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Defendants have satisfied their burden to obtain a limited stay of discovery in this case until the

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hearing on their respective motions to dismiss on November 16, 2017.

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To put this limited stay in context, discovery will be stayed for approximately three months
until the hearing on Google and Huawei’s motions to dismiss. Although the trial date in this

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matter has not yet been set, the Court’s schedule requires that the trial be set for no earlier than the

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fall of 2020, over three years from now. Therefore, this limited stay of discovery does not unduly

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prejudice Plaintiffs, and allows all parties to commence discovery with a better understanding of

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United States District Court
Northern District of California

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which claims, if any, they must answer. Moreover, Huawei’s future in this case hinges on this

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Court’s resolution of the personal jurisdiction analysis. The Court does not anticipate granting

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successive stays of discovery upon expiration of this limited discovery stay after the hearing on

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the motions to dismiss. The Court anticipates that it will be able to provide significant guidance to

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the parties about the scope of the pleadings that will be allowed to go forward at the time of the

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November 16, 2017 hearing. At that point, the parties will be expected to cooperate with respect

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to discovery and other pre-trial matters.

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For the reasons set forth above and on the record, Defendants’ motion to stay discovery is

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hereby GRANTED. Discovery in this case is STAYED until the hearing on Google and Huawei’s

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pending motions to dismiss on November 16, 2017.

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IT IS SO ORDERED.

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Dated: August 18, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge

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