Council v. Target Corporation

Filing 26

ORDER. Target's Motion to Stay Proceedings 15 is GRANTED. This case is STAYED until such time as the JPML resolves the request to transfer this action into a multidistrict litigation. The parties shall file a status report within five days o f the date the JPML issues its ruling on the motion to transfer this action to an MDL. Joint Motion for Extension of Time for Briefing Schedule, Hearing on Motion for Protective Order, and Scheduling Conference 16 is GRANTED. The reply to the Mo tion for Protective Order shall be filed no later than ten days of a ruling on by the JPML, in the event the JPML does not transfer this case to an MDL. The Scheduling Conference and motion hearing set for 4/8/2014, and all deadlines associated with the Scheduling Conference are VACATED, by Magistrate Judge Kathleen M. Tafoya on 3/5/14.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 13–cv–03479–CMA–KMT

BRYAN P COUNCIL, as an individual and on behalf of all others similarly situated,
Plaintiff,
v.
TARGET CORPORATION, a Minnesota corporation,
Defendant.

ORDER

This matter is before the court on “Target’s Motion to Stay Proceedings” (Doc. No. 15,
filed January 21, 2014).
Defendant Target Corporation seeks a stay of these proceedings pending a decision by
the Judicial Panel on Multidistrict Litigation (JPML) on requests to transfer this action, and at
least 64 other substantially similar actions (together with this action, the “Actions”), into a
multidistrict litigation (“MDL”).
The Actions all arise out of Target’s announcement on December 19, 2013, that it
detected unauthorized access to payment card data, potentially impacting guests who made credit
or debit card purchases in Target’s U.S. stores from November 27 to December 15, 2013. As of
the date of the motion to stay, at least 64 other similar putative class actions are currently
pending in 27 district courts across the country. (See Motion, Ex. A.) The gravamen of the

claims in each of the Actions is virtually identical—that Target failed properly to safeguard guest
financial data and failed properly to disclose the data breach to those guests who might be
affected. The plaintiffs in the Actions all assert some combination of claims for breach of
contract, negligence, negligent misrepresentation and concealment, invasion of privacy, violation
of the Federal Stored Communications Act, violation of state law consumer protection statutes,
and violation of state law data breach statutes, and related equitable claims.
“The Court has broad discretion to stay proceedings as incidental to its power to control
its own docket.” Lundy v. C.B. Fleet Co., Inc., No. 09–cv–00802–WYD–KLM, 2009 WL
1965521, at *1 (D. Colo. July 6, 2009) (citations omitted); see also String Cheese Incident, LLC
v. Stylus Shows, Inc., No. 02–cv–01934–LTB–PAC, 2006 WL 894955, at *2 (D. Colo. Mar. 30,
2006). “As a general rule, ‘courts frequently grant stays pending a decision by the MDL panel
regarding whether to transfer a case.’” See Lundy, 2009 WL 1965521, at *1 (quoting Good v.
Prudential Ins. Co. of America, 5 F. Supp. 2d 804, 809 (C.D. Cal. 1998)).
The court concludes that stay of proceedings is appropriate here. The court first
considers whether the interests of the parties would be served by a stay. See String Cheese, 2006
WL 894955, at *2 (balancing prejudice of stay to the non-moving party, the plaintiff, against any
undue burden of going forward on defendant). Here, Defendant argues that, without a stay, it
would be burdened by being required to engage in duplicative litigation, and there is a serious
risk of inconsistent or contradictory decisions. Plaintiff argues that that a stay “poses a
significant hardship and inequity to Plaintiff and members of the putative Class.” (Doc. No. 20, ¶
10.) In support, he identifies only one source of potential prejudice—that a stay will prevent the
Court from ruling on his motion for a protective order. (Doc. No. 20, ¶ 10.) Plaintiff argues that,

2

absent a ruling on that motion, “relevant admissible evidence is at risk of not being adequately
preserved.” (Id.) In reply, Defendant argues that Plaintiff has not identified any actual risks to
such evidence. Defendant also argues it has taken steps to ensure potentially discoverable
information is appropriately retained. Defendant also argues that the JPML hearing will take
place on March 27, 2014, and that a decision on the transfer will happen shortly thereafter.
Finally, Defendant argues that courts in other Actions have rejected similar arguments that
protective orders or expedited discovery are necessary to prevent prejudice to plaintiffs or
putative class members.
The court agrees that the burden on Defendant in proceeding with this case outweighs
any prejudice to Plaintiff by a brief stay of this matter pending ruling by the JPML. The court
notes that briefing on Plaintiff’s Motion for Protective Order is not complete, and the hearing on
the motion is not set until April 8, 2014. The court also notes that in the parties’ joint motion to
reset the hearing on the Motion for Protective Order, the parties requested that the hearing on the
Motion for Protective Order be reset to April 22, 2014. Plaintiff, therefore, did not oppose
waiting on a ruling on that motion until a later date. Moreover, it is likely the JPML will have
made a decision on the request to transfer this action before or soon after April 22, 2014.
The court also considers its own convenience, the interests of nonparties, and the public
interest in general. See String Cheese, 2006 WL 894955, at *2. None of these factors prompts
the court to reach a different result. The court finds that granting the stay will promote judicial
economy and efficiency. See Lundy, 2009 WL 1965521, at *1–2 (concluding “judicial economy
. . . best served by granting a stay pending the MDL Panel’s decision”); Lilak v. Pfizer Corp.,
Inc., No. 08–cv–02439–CMA–KLM, 2008 WL 4924632, at *3 (D. Colo. Nov. 13, 2008)

3

(reasoning stay pending transfer to MDL appropriate because judicial economy best served by
case being considered as part of MDL); Franklin v. Merck & Co., Inc., No. 06–cv–02164–
WYD–BNB, 2007 WL 188264, at *2 (D. Colo. Jan. 24, 2007) (finding that pending transfer to
MDL “granting a stay would promote judicial economy and help insure consistent pretrial
rulings”). Because the court finds that a stay will not prejudice the plaintiff and the court agrees
that awaiting a ruling from the MDL panel will conserve judicial resources and avoid the
issuance of rulings on discovery and substantive motions inconsistent with those issued by other
federal courts, the court will enter the stay. See Rivers v. Walt Disney Co., 980 F.Supp. 1358,
1360–62 (C.D. Cal.1997) (granting stay where motion to transfer and consolidate cases into
MDL proceeding pending before MDL Panel and noting that “a majority of courts” have
concluded that such a stay appropriate and conserves judicial resources). The court does not find
that any compelling nonparty or public interests require a different result.
Accordingly, it is
ORDERED that the “Target’s Motion to Stay Proceedings” (Doc. No. 15) is
GRANTED. This case is STAYED until such time as the JPML resolves the request to transfer
this action into a multidistrict litigation. The parties shall file a status report within five days of
the date the JPML issues its ruling on the motion to transfer this action to an MDL. It is further
ORDERED that the “Joint Motion for Extension of Time for Briefing Schedule, Hearing
on Motion for Protective Order, and Scheduling Conference” (Doc. No. 16, filed January 23,
2014) is GRANTED. The reply to the Motion for Protective Order shall be filed no later than
ten days of a ruling on by the JPML, in the event the JPML does not transfer this case to an

4

MDL. The Scheduling Conference and motion hearing set for April 8, 2014, and all deadlines
associated with the Scheduling Conference are VACATED.
Dated this 5th day of March, 2014.

5