McEwan v. OSP Group, L.P. et al

Filing 52

ORDER Denying 46 Motion to Stay. Signed by Judge Roger T. Benitez on 11/2/2015. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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HONEY McEWAN, individually and on
behalf of others similarly situated,
Plaintiff,

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Case No.: 14-cv-2823-BEN (WVG)

ORDER DENYING MOTION TO
STAY

v.
OSP GROUP, L.P., a Delaware limited
partnership; et aI.,
Defendants.

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Before this Court is a Motion to Stay, filed by Defendants OSP Group, L.P., OSP

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Group Merchant, Inc., OSP Group, Inc., and OSP Group, LLC (collectively, "OSP").

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(Docket No. 46.) For the reasons stated below, the Motion is DENIED.

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BACKGROUND
Plaintiff initiated this putative class action in state court, alleging violations of the

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California Invasion of Privacy Act ("CIPA"). Defendants removed the matter to this

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Court on November 26, 2014. (Docket No.1.) On December 22, 2014, Plaintiff filed a

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First Amended Complaint. (Docket No. 18.) On July 2, 2015, the Court granted in part

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and denied in part Defendants' motion to dismiss.

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Defendants attest that they made a, Rule 68 offer to Plaintiff, which she declined.
As a result, they move to stay this action pending the United States Supreme Court's

14CV2823

1 decision in Campbell-Ewald Co. v. Gomez, 135 S. Ct. 2311 (2015). The Gomez Court
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will address two relevant questions: (1) whether a case becomes moot, and thus beyond

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the judicial power of Article III, when the plaintiff receives an offer of complete relief on

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his claim; and (2) whether the answer to the first question is any different when the

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plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives

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an offer of complete relief before any class is certified. (Mot. 5, Declaration of Brendan

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F. Hug, Ex. B at 12.)

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DISCUSSION

"[T]he power to stay proceedings is incidental to the power inherent in every court

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to control the disposition of the causes on its docket with economy of time and effort for

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itself, for counsel, and for litigants." Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). In

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determining whether to grant a stay, a court considers: (1) "possible damage which may

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result from the granting of a stay," (2) "the hardship or inequity which a party may suffer

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in being required to go forward," and (3) "the orderly course of justice measured interms

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of the simplifying or complicating of issues, proof, and questions oflaw which could be

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expected to result from a stay." CMAX, Inc. v. Hall, 300 F.2d 265,268 (9th Cir. 1962).

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First, Defendants argue that neither party will be damaged by a stay because this

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case is still in its infancy. (Mot. 6-7.) Plaintiff argues that further delay in her ability to

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conduct discovery will make it more difficult to proceed in the subsequent phases of

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litigation, such as class certification. (Opp'n 8.) Significant delays in discovery can

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certainly hinder a party's ability to formulate substantive motions. Notably, Plaintiff

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prays for injunctive relief. (FAC at 6.) Prolonging the resolution of the alleged privacy

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violations, and whether Plaintiff is entitled to injunctive relief, is not necessary. See

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Lockyer, 398 F.3d at 1112 (denying stay where plaintiff sought injunctive relief);

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Imagenetix, Inc. v. GNC Parent, LLC, No. 12-cv-89, 2012 WL 2923314, at *3 (S.D. Cal.

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July 18,2012). This factor therefore weighs against a stay.

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Second, Defendants argue that both parties will suffer hardship if forced to
continue litigation because they will incur "potentially avoidable costs" and struggle
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14CV2823

(

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through discovery disputes. (Mot. 7-8.) The Court agrees with Plaintiff that the ordinary

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hardship of litigation is not sufficient to warrant a stay. See Lockyer v. Mirant Corp., 398

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F.3d 1098, 1112 (9th Cir. 2005) ("[B]eing required to defend a suit, without more, does

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not constitute a 'clear case of hardship or inequity' within the meaning of Landis.").

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Defendants failed to present any legally cognizable hardship. Thus, the second factor

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also weighs against a stay.

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Third, Defendants argue that the Gomez decision will simplify, if not dispose of,

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this case. Plaintiff disagrees because the settlement offer here did not provide complete

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relief as in Gomez. Without assessing the merits of the Parties' arguments, the Supreme

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Court's decision in Gomez will likely have some impact in simplifying this case.

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Accordingly, the final factor weighs in favor of a stay.

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CONCLUSION

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As two out of three factors weigh against staying this case, the Court exercises its
discretion and DENIES Defendants' Motion.

IT IS SO ORDERED.

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Dated: November~015

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14CV2823