1 FILED IN THE 2 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON Aug 14, 2023 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 GLEN MORGAN, individually and on No. 2:22-cv-00122-MKD behalf of all others similarly situated, 8 ORDER GRANTING Plaintiff, DEFENDANT’S MOTION FOR 9 PROTECTIVE ORDER v. 10 ECF No. 44 TWITTER, INC., 11 Defendant. 12
13 Before the Court is Defendant’s Motion for Protective Order, ECF No. 44. 14 The Court has reviewed the record and is fully informed. For the reasons set forth 15 below, the Court grants Defendant’s Motion for Protective Order, ECF No. 44. 16 BACKGROUND 17 A. Procedural Posture 18 Plaintiff filed suit on May 3, 2022, in Spokane County Superior Court. ECF 19 20 1 No. 1 at 38-51.1 Defendant removed the action to federal court on May 19, 2022. 2 See ECF No. 1. On May 26, 2022, Plaintiff moved to remand the matter back to
3 state court. See ECF No. 8. In the Motion to Remand, Plaintiff advised why he 4 filed this action, when a nearly identical case—Gray v. Twitter, Inc., No. 2:20-cv- 5 01389-LK—was already pending in the Western District of Washington as of
6 September 21, 2020. ECF No. 8 at 5-7. On August 30, 2022, Plaintiff filed a 7 notice advising that the plaintiff in Gray v. Twitter voluntarily dismissed that 8 action. ECF Nos. 27, 27-1; Gray v. Twitter, Inc., No. 2:20-cv-01389-LK, ECF No. 9 36.
10 On February 21, 2023, without seeking leave, Plaintiff filed a first amended 11 complaint in this action. ECF No. 35. On May 2, 2023, the Court held a status 12 hearing in the above-captioned matter. See ECF Nos. 36, 38. At that hearing,
13 Defendant did not object to Plaintiff’s filing of an amended complaint. 14 On May 5, 2023, the Court denied Plaintiff’s Motion to Remand and ordered 15 Defendant to answer or otherwise respond to Plaintiff’s first amended complaint no 16 later than 30 days after the order’s issuance. ECF No. 39 at 35. On June 2, 2023,
17 18
19 1 Throughout this Order, the Court’s citations reference the page numbers included 20 in the digital stamp provided by CM/ECF. 1 Defendant filed a motion to dismiss2 and a motion for protective order. See ECF 2 Nos. 43, 44. Plaintiff objects to the protective order. See ECF No. 50.
3 B. Plaintiff’s Claims for Relief 4 Plaintiff brings this civil action pursuant to the Criminal Profiteering Act, 5 RCW 9A.82.010, 9A.82.100. ECF No. 35 at 4 ¶ 14. A plaintiff may bring a civil
6 suit under the Criminal Profiteering Act if the plaintiff “sustains injury to his or her 7 person, business, or property by an act of criminal profiteering that is part of a 8 pattern of criminal profiteering activity[.]” RCW 9A.82.100(1)(a). “Criminal 9 profiteering” is defined as “any act, including any anticipatory or completed
10 offense, committed for financial gain, that is chargeable or indictable under the 11 laws of the state in which the act occurred and . . . punishable as a felony and by 12 imprisonment for more than one year, regardless of whether the act is charged or
13 indicted.” RCW 9A.82.010(4). This includes the unauthorized sale or 14 procurement of telephone records in violation of RCW 9.26A.140. RCW 15 9A.82.010(4)(nn). 16 Plaintiff asserts two theories under which Defendant has violated RCW
17 9.26A.140. First, Plaintiff alleges that Defendant unlawfully obtained his and 18 other users’ cell phone numbers which he and other users register with a Twitter 19
20 2 Defendant’s Motion to Dismiss, ECF No. 43, will be addressed by separate order. 1 account. See ECF No. 35 at 20-21 ¶¶ 115-126. Second, he asserts that Defendant 2 sold that information to third-party advertisers from which Defendant illegally
3 profited. See ECF No. 35 at 21-23 ¶¶ 127-139. 4 LEGAL STANDARD 5 Fed. R. Civ. P. 26(c) provides the Court with “discretion to limit discovery
6 ‘for good cause . . . to protect a party or person from annoyance, embarrassment, 7 oppression, or undue burden or expense . . .’” Edmonds v. Amazon.com, Inc., No. 8 C19-1613JLR, 2020 WL 8996835, at *1 (W.D. Wash. Mar. 6, 2020) (quoting Fed. 9 R. Civ. P. 26(c)). Generally, a pending motion to dismiss does not constitute good
10 cause for staying discovery. See id.; see also Gray v. First Winthrop Corp., 133 11 F.R.D. 39, 40 (N.D. Cal. 1990) (“Had the Federal Rules contemplated that a 12 motion to dismiss under Fed. R. Civ. P. 12(b)(6) would stay discovery, the Rules
13 would contain a provision to that effect.”). However, a district court does “not 14 abuse its discretion by staying discovery pending the outcome of [a] dispositive 15 motion” when good cause is shown. In re Hayes, 465 F. App’x 684, 685 (9th Cir. 16 2012) (not reported); Dorian v. Amazon Web Servs., Inc., No. 2:22-CV-00269,
17 2022 WL 3155369, at *1 (W.D. Wash. Aug. 8, 2022) (citing Little v. City of 18 Seattle, 863 F.2d 681, 685 (9th Cir. 1988)) (“District courts have broad discretion 19 to stay discovery pending resolution of potentially dispositive motions.”); see
20 DiMartini v. Ferrin, 889 F.2d 922, 926 (9th Cir. 1989), amended by, 906 F.2d 465 1 (9th Cir. 1990). 2 “A party seeking a stay of discovery carries the heavy burden of making a
3 ‘strong showing’ why discovery should be denied.” Gray, 133 F.R.D. at 40 4 (quoting Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).” Good 5 cause may exist to stay discovery when there are “no factual issues require
6 immediate exploration and the motions to dismiss present purely questions of law.” 7 In re Hayes, 465 F. App’x at 685. A stay of discovery is generally only warranted 8 “when the dispositive motion in question raises preliminary ‘threshold’ issues that 9 may preclude a court from reaching the merits of a claim.” Dorian, 2022 WL
10 3155369, at *1; see, e.g., Little, 863 F.2d at 685 (immunity of a defendant); Jeter v. 11 President of the United States, 670 F.App’x 493, 494 (9th Cir. 2016) (jurisdiction) 12 (not reported); Zeiger v. Hotel California by the Sea LLC, No. C21-1702-TL-SKV,
13 2022 WL 1499670, at *2 (W.D. Wash. May 12, 2022) (enforceability of an 14 arbitration clause); Ahern Rentals Inc. v. Mendenhall, No. C20-0542-JCC, 2020 15 WL 8678084, at *1 (W.D. Wash. July 9, 2020) (venue). 16 Some district courts in the Ninth Circuit apply a two-part test when
17 “deciding whether to impose a stay pending disposition of a motion.” Dorian, 18 2022 WL 3155369, at *1 (citing Roberts v. Khounphixay, No. C18-0746-MJP- 19 BAT, 2018 WL 5013780, at *1 (W.D. Wash. Oct. 16, 2018)). “First, the pending
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1 FILED IN THE 2 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON Aug 14, 2023 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 GLEN MORGAN, individually and on No. 2:22-cv-00122-MKD behalf of all others similarly situated, 8 ORDER GRANTING Plaintiff, DEFENDANT’S MOTION FOR 9 PROTECTIVE ORDER v. 10 ECF No. 44 TWITTER, INC., 11 Defendant. 12
13 Before the Court is Defendant’s Motion for Protective Order, ECF No. 44. 14 The Court has reviewed the record and is fully informed. For the reasons set forth 15 below, the Court grants Defendant’s Motion for Protective Order, ECF No. 44. 16 BACKGROUND 17 A. Procedural Posture 18 Plaintiff filed suit on May 3, 2022, in Spokane County Superior Court. ECF 19 20 1 No. 1 at 38-51.1 Defendant removed the action to federal court on May 19, 2022. 2 See ECF No. 1. On May 26, 2022, Plaintiff moved to remand the matter back to
3 state court. See ECF No. 8. In the Motion to Remand, Plaintiff advised why he 4 filed this action, when a nearly identical case—Gray v. Twitter, Inc., No. 2:20-cv- 5 01389-LK—was already pending in the Western District of Washington as of
6 September 21, 2020. ECF No. 8 at 5-7. On August 30, 2022, Plaintiff filed a 7 notice advising that the plaintiff in Gray v. Twitter voluntarily dismissed that 8 action. ECF Nos. 27, 27-1; Gray v. Twitter, Inc., No. 2:20-cv-01389-LK, ECF No. 9 36.
10 On February 21, 2023, without seeking leave, Plaintiff filed a first amended 11 complaint in this action. ECF No. 35. On May 2, 2023, the Court held a status 12 hearing in the above-captioned matter. See ECF Nos. 36, 38. At that hearing,
13 Defendant did not object to Plaintiff’s filing of an amended complaint. 14 On May 5, 2023, the Court denied Plaintiff’s Motion to Remand and ordered 15 Defendant to answer or otherwise respond to Plaintiff’s first amended complaint no 16 later than 30 days after the order’s issuance. ECF No. 39 at 35. On June 2, 2023,
17 18
19 1 Throughout this Order, the Court’s citations reference the page numbers included 20 in the digital stamp provided by CM/ECF. 1 Defendant filed a motion to dismiss2 and a motion for protective order. See ECF 2 Nos. 43, 44. Plaintiff objects to the protective order. See ECF No. 50.
3 B. Plaintiff’s Claims for Relief 4 Plaintiff brings this civil action pursuant to the Criminal Profiteering Act, 5 RCW 9A.82.010, 9A.82.100. ECF No. 35 at 4 ¶ 14. A plaintiff may bring a civil
6 suit under the Criminal Profiteering Act if the plaintiff “sustains injury to his or her 7 person, business, or property by an act of criminal profiteering that is part of a 8 pattern of criminal profiteering activity[.]” RCW 9A.82.100(1)(a). “Criminal 9 profiteering” is defined as “any act, including any anticipatory or completed
10 offense, committed for financial gain, that is chargeable or indictable under the 11 laws of the state in which the act occurred and . . . punishable as a felony and by 12 imprisonment for more than one year, regardless of whether the act is charged or
13 indicted.” RCW 9A.82.010(4). This includes the unauthorized sale or 14 procurement of telephone records in violation of RCW 9.26A.140. RCW 15 9A.82.010(4)(nn). 16 Plaintiff asserts two theories under which Defendant has violated RCW
17 9.26A.140. First, Plaintiff alleges that Defendant unlawfully obtained his and 18 other users’ cell phone numbers which he and other users register with a Twitter 19
20 2 Defendant’s Motion to Dismiss, ECF No. 43, will be addressed by separate order. 1 account. See ECF No. 35 at 20-21 ¶¶ 115-126. Second, he asserts that Defendant 2 sold that information to third-party advertisers from which Defendant illegally
3 profited. See ECF No. 35 at 21-23 ¶¶ 127-139. 4 LEGAL STANDARD 5 Fed. R. Civ. P. 26(c) provides the Court with “discretion to limit discovery
6 ‘for good cause . . . to protect a party or person from annoyance, embarrassment, 7 oppression, or undue burden or expense . . .’” Edmonds v. Amazon.com, Inc., No. 8 C19-1613JLR, 2020 WL 8996835, at *1 (W.D. Wash. Mar. 6, 2020) (quoting Fed. 9 R. Civ. P. 26(c)). Generally, a pending motion to dismiss does not constitute good
10 cause for staying discovery. See id.; see also Gray v. First Winthrop Corp., 133 11 F.R.D. 39, 40 (N.D. Cal. 1990) (“Had the Federal Rules contemplated that a 12 motion to dismiss under Fed. R. Civ. P. 12(b)(6) would stay discovery, the Rules
13 would contain a provision to that effect.”). However, a district court does “not 14 abuse its discretion by staying discovery pending the outcome of [a] dispositive 15 motion” when good cause is shown. In re Hayes, 465 F. App’x 684, 685 (9th Cir. 16 2012) (not reported); Dorian v. Amazon Web Servs., Inc., No. 2:22-CV-00269,
17 2022 WL 3155369, at *1 (W.D. Wash. Aug. 8, 2022) (citing Little v. City of 18 Seattle, 863 F.2d 681, 685 (9th Cir. 1988)) (“District courts have broad discretion 19 to stay discovery pending resolution of potentially dispositive motions.”); see
20 DiMartini v. Ferrin, 889 F.2d 922, 926 (9th Cir. 1989), amended by, 906 F.2d 465 1 (9th Cir. 1990). 2 “A party seeking a stay of discovery carries the heavy burden of making a
3 ‘strong showing’ why discovery should be denied.” Gray, 133 F.R.D. at 40 4 (quoting Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).” Good 5 cause may exist to stay discovery when there are “no factual issues require
6 immediate exploration and the motions to dismiss present purely questions of law.” 7 In re Hayes, 465 F. App’x at 685. A stay of discovery is generally only warranted 8 “when the dispositive motion in question raises preliminary ‘threshold’ issues that 9 may preclude a court from reaching the merits of a claim.” Dorian, 2022 WL
10 3155369, at *1; see, e.g., Little, 863 F.2d at 685 (immunity of a defendant); Jeter v. 11 President of the United States, 670 F.App’x 493, 494 (9th Cir. 2016) (jurisdiction) 12 (not reported); Zeiger v. Hotel California by the Sea LLC, No. C21-1702-TL-SKV,
13 2022 WL 1499670, at *2 (W.D. Wash. May 12, 2022) (enforceability of an 14 arbitration clause); Ahern Rentals Inc. v. Mendenhall, No. C20-0542-JCC, 2020 15 WL 8678084, at *1 (W.D. Wash. July 9, 2020) (venue). 16 Some district courts in the Ninth Circuit apply a two-part test when
17 “deciding whether to impose a stay pending disposition of a motion.” Dorian, 18 2022 WL 3155369, at *1 (citing Roberts v. Khounphixay, No. C18-0746-MJP- 19 BAT, 2018 WL 5013780, at *1 (W.D. Wash. Oct. 16, 2018)). “First, the pending
20 motion must be dispositive of the entire case.” Roberts, 2018 WL 5013780, at *1 1 (citing Ministerio Roca Solida v. U.S. Dep’t of Fish & Wildlife, 288 F.R.D. 500, 2 503 (D. Nev. 2013)). Second, the district court “must consider whether the
3 pending motion can be decided without additional discovery.” Id. When a district 4 court applies this test, it “take[s] a preliminary peek at the merits of the dispositive 5 motion to assess whether a stay is warranted.” Id. The purpose of so-called
6 “preliminary peek” is to determine whether the motion can be decided as a matter 7 of law. Id.; Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981) (noting the 8 district court has the authority to stay discovery “when it is convinced that the 9 plaintiff will be unable to state a claim for relief” (emphasis added)).
10 DISCUSSION 11 Defendant argues that a stay of discovery is appropriate here for two 12 reasons. First, this action is substantially similar to Gray v. Twitter and the
13 magistrate judge recommended dismissing that action with prejudice. ECF No. 44 14 at 6; Gray v. Twitter, Inc., No. 2:20-cv-01389-LK, ECF No. 22. The Report and 15 Recommendation indicates that there was not enough information before the court 16 for it to determine that Defendant is a telecommunications company or that a
17 telephone number is a telephone record. Id. at 12-14-17. As mentioned above, the 18 plaintiff voluntarily dismissed that action before a district court judge could 19 address the Report and Recommendation. Second, Defendant’s motion to dismiss
20 “raises pure questions of law” which “can be fully resolved without discovery.” 1 ECF No. 44 at 6. Given Defendant’s argument, the Court applies the two-part test 2 discussed above.
3 A. Dispositive Nature 4 In Defendant’s motion to dismiss, Defendant argues that Plaintiff’s claims 5 fail as a matter of law. See ECF No. 43 at 11-24. If Defendant’s motion prevails,
6 the case will be terminated. Accordingly, Defendant’s motion may be dispositive 7 of the above-captioned matter, and the first prong has been satisfied. 8 B. Preliminary Peek 9 The Court has taken a preliminary peak at the merits of Defendant’s motion
10 to dismiss to assess whether it can be decided as a matter of law. The Court finds 11 that it can. 12 Defendant argues that Plaintiff’s allegations “‘fails as a matter of law,’
13 because the conduct that ‘Plaintiff accuses [Defendant] of here falls well outside 14 the conduct that Section 140 prohibits.” ECF No. 44 at 13 (quoting ECF No. 43 at 15 7-8). Defendant’s assertion is based in part on the rationale and conclusion in the 16 Report and Recommendation issued in Gray v. Twitter. ECF No. 44 at 6, 9. The
17 Court notes that there was substantial litigation surrounding that Report and 18 Recommendation—including a motion to certify questions to the State Supreme 19 Court—and questions were left unanswered when the plaintiff voluntarily
20 dismissed the action. See Gray v. Twitter, Inc., No. 2:20-cv-01389-LK, ECF Nos. 1 24, 25, 26, 27, 28, 29. However, the Court finds that the Report and 2 Recommendation is instructive given the substantial similarity between the two
3 actions and the motions for the limited purpose at this stage of whether discovery 4 should be stayed pending the disposition of the motion to dismiss. Compare ECF 5 No. 44 with Gray v. Twitter, Inc., No. 2:20-cv-01389-LK, ECF No. 17. Given
6 Defendant’s motion to dismiss asserts that Plaintiff’s claims fail as a matter of law, 7 no additional fact should be necessary for the Court’s assessment of Defendant’s 8 arguments. 9 CONCLUSION
10 For the reasons discussed above, the Court finds good cause under Fed. R. 11 Civ. P 26(c) to issue a protective order in this matter. 12 Accordingly, IT IS ORDERED:
13 1. Defendant’s Motion for Protective Order, ECF No. 44, is 14 GRANTED. All discovery and discovery deadlines in this case are 15 stayed pending this Court’s resolution of Defendant’s Motion to 16 Dismiss.
17 IT IS SO ORDERED. The District Court Executive is directed to file this 18 19
20 1 order and provide copies to the parties. 2 DATED August 14, 2023.
3 s/Mary K. Dimke 4 MARY K. DIMKE UNITED STATES DISTRICT JUDGE 5
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