Ouellette v. Capital One Financial Corporation

W.D. Washington

Ouellette v. Capital One Financial Corporation

District Court, W.D. Washington·Decided August 29, 2019·No. 2:19-cv-01203·Unknown

Opinion

UNITED STATES DISTRICT COURT AT SEATTLE NATHAN OUELLETTE, JESI AN E. RODRIGUEZ, GREGG STAPPAS, AND Case No. 2:19-cv-01203 CB HOME, INC., individually and on behalf of all those similarly situated, STIPULATED MOTION AND ORDER TO STAY Plaintiffs, vs. CAPITAL ONE FINANCIAL CAPITAL ONE BANK (USA), N.A., AMAZON.COM, INC., and AMAZON WEB SERVICES, INC., Defendants. Pursuant to LCR 7(d)(1) and LCR 10(g), the parties hereby request that the Court stay all proceedings and deadlines in this action pending resolution of the motions for transfer and consolidation under 28 U.S.C. § 1407 that are currently pending before the Judicial Panel on Multidistrict Litigation (“JPML”). The JPML will hear oral argument on the Section 1407 motions on September 26, 2019, and Defendants Capital One Financial Corporation, Capital One, N.A., and Capital One Bank (USA), N.A. (collectively, “Capital One”) anticipate an order regarding transfer and consolidation of this case and other related cases to be issued shortly thereafter. All the other parties in this action, including Plaintiffs and Defendants Amazon.com, Inc. and Amazon Web Services, Inc., agree to the requested stay. This case is one of over 45 putative class actions filed in connection with the cyber incident that Capital One announced on July 29, 2019. Plaintiffs filed the Complaint in this case on August 1, 2019; Capital One was served on August 5, 2019; and Capital One’s deadline to answer or respond to the Complaint is currently August 26, 2019. On July 31, 2019, plaintiffs in a related case pending in this District, Fadullon v. Capital One Financial Corporation, et al., Case No. 2:19-cv-01189 (W.D. Wash., filed July 30, 2019), filed a motion for consolidation and transfer under 28 U.S.C. § 1407 with the JPML in In re Capital One Consumer Data Breach Litigation, MDL No. 2915 (J.P.M.L. July 31, 2019) (“In re Capital One”). See In re Capital One, Dkt. No. 1. That motion seeks to have related actions arising out of the Capital One cyber incident, including this case, consolidated with the Fadullon case and transferred to this District for pretrial proceedings. Subsequently, plaintiffs in other related cases have filed briefs in the In re Capital One matter that support transfer and consolidation, but seek other transferee courts, including the Eastern District of Virginia, Alexandria Division (id. at Dkt. Nos. 5 and 7) and the District of the District of Columbia (id. at Dkt. No. 8). Numerous notices of related actions have also been filed in In re Capital One, and additional related cases continue to be filed and are in the process of being noticed to the JPML as potential tag-along actions. Given that over 45 putative class actions have been filed, all related to the same underlying event and asserting the same or substantially similar factual allegations, the JPML is highly likely to grant the motions for transfer and consolidation. If it does, to conserve the parties’ resources and promote judicial economy, this case will be consolidated with the other putative class actions for centralized pretrial proceedings in a single transferee court. Under these circumstances, “[c]ourts frequently grant stays pending a decision by the MDL Panel regarding whether to transfer a case.” Good v. Prudential Ins. Co. of Am., 5 F.Supp.2d 804, 809 (N.D. Cal. 1998); see Short v. Hyundai Motor Am. Inc., No. C19-0318JLR, 2019 WL 3067251 (W.D. Wash. July 12, 2019) (granting stay pending JPML’s resolution of Section 1407 motion); Gonzalez v. Merck & Co., No. CV-07-3034-LRS, 2007 WL 2220286, at *2 (E.D. Wash. Aug. 2, 2007) (granting defendant’s motion to stay pending transfer decision and noting that “well settled case law . . . dictates a stay should be granted to promote judicial economy”); Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1362 (C.D. Cal. 1997) (granting stay pending JPML’s ruling because “a majority of courts have concluded that it is often appropriate to stay preliminary pretrial proceedings while a motion to transfer and consolidate is pending with the MDL Panel”); Bonefant v. R.J. Reynolds Tobacco Co., No. 07-60301-CIV, 2007 WL 2409980, at * 1 (S.D. Fla. July 31, 2007) (“[I]t is common practice for courts to stay an action pending a transfer decision by the JPML.”). In fact, Capital One has already successfully moved to stay numerous cases related to the cyber incident, and to date no court has denied a request to stay a case related case. See, e.g., Heath, et al. v. Capital One Financial Corp., et al., 3:19-cv-555-JAG, Dkt. No. 14 (E.D. Va. Aug. 16, 2019) (order staying nine related cases pending decision from the JPML); Hilker v. Capital One Financial Corp., et al., No. 1:19-cv-995-RDA-JFA Dkt. No. 15 (E.D. Va. Aug. 16, 2019) (order staying related case pending decision from the JPML). Here, too, a short stay of proceedings until the JPML resolves the pending Section 1407 motions will promote judicial economy and sound judicial administration, avoid duplicative pretrial proceedings and potentially inconsistent pretrial rulings, and prevent prejudice to all parties. DATED this 21st day of August, 2019. Respectfully submitted,

s/Steven A. Miller Steven A. Miller, WSBA No. 30388 s/Daniel J. Oates Daniel J. Oates, WSBA No. 39334 s/Kellen A. Hade Kellen A. Hade, WSBA No. 44535 MILLER NASH GRAHAM & DUNN LLP Pier 70, 2801 Alaskan Way, Suite 300 Seattle, WA 98121-1128 Tel: (206) 624-8300 Fax: (206) 340-9599 Email: steve.miller@millernash.com dan.oates@millernash.com kellen.hade@millernash.com Attorneys for Capitol One Defendants

Stipulation agreed to by:

s/ Jeffrey A. Ware Jeffrey A. Ware, WSBA No. 43779

FENWICK & WEST LLP 1191 Second Avenue, 10th Floor Seattle, WA 98101 Tel: (206) 389-4510 Fax: (206) 389-4511 Email: jware@fenwick.com Attorneys for Amazon, Inc., and Amazon Web Services, Inc.

TOUSLEY BRAIN STEPHENS PLLC

By: s/ Kim D. Stephens Kim D. Stephens, WSBA #11984 By: s/Jason T. Dennett Jason T. Dennett, WSBA #30686

By: s/ Kaleigh N.B. Powell Kaleigh N.B. Powell, WSBA #52684 1700 Seventh Avenue, Suite 2200 Seattle, Washington 98101 Tel.: 206.682.5600/Fax.: 206.682-2992 Email: kstephens@tousley.com jdennett@tousley.com kpowell@tousley.com

James J. Pizzirusso, admitted pro hac vice Swathi Bojedla, admitted pro hac vice Theodore F. DiSalvo, admitted pro hac vice 1700 K Street NW, Suite 650 Washington, D.C. 20006 Tel.: 202.540.7200 jpizzirusso@hausfeld.com sbojedla@hausfeld.com tdisalvo@hausfeld.com

Adam J. Levitt, admitted pro hac vice Amy E. Keller, admitted pro hac vice Ten North Dearborn Street Eleventh Floor Chicago, Illinois 60602 Tel.: 312.214.7900 alevitt@dicellolevit.com akeller@dicellolevitt.com

Andrew N. Friedman, admitted pro hac vice COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, NW, Suite 500 Washington, D.C. 20005 Tel.: 202.408.4600 afriedman@cohenmilstein.com dmcnamara@cohenmilstein.com ekafka@cohenmilstein.com kputtieva@cohenmilstein.com

E. Michelle Drake, admitted pro hac vice BERGER MONTAGUE, PC 43 SE Main Street, Suite 505 Minneapolis, MN 55414 Tel.: 612.594.5933 emdrake@bm.net Daniel L. Warshaw, admitted pro hac vice Matthew A. Pearson, admitted pro hac vice PEARSON, SIMON & WARSHAW, LLP 15165 Ventura Boulevard, Suite 400 Sherman Oaks, California 91403 Tel.: 818.788.8300 dwarshaw@pswlaw.com mapearson@pswlaw.com

Counsel for Plaintiffs and the Classes Dated this 29th day of August , 2019.

A Mary Alice Theiler United States Magistrate Judge

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UNITED STATES DISTRICT COURT AT SEATTLE NATHAN OUELLETTE, JESI AN E. RODRIGUEZ, GREGG STAPPAS, AND Case No. 2:19-cv-01203 CB HOME, INC., individually and on behalf of all those similarly situated, STIPULATED MOTION AND ORDER TO STAY Plaintiffs, vs. CAPITAL ONE FINANCIAL CAPITAL ONE BANK (USA), N.A., AMAZON.COM, INC., and AMAZON WEB SERVICES, INC., Defendants. Pursuant to LCR 7(d)(1) and LCR 10(g), the parties hereby request that the Court stay all proceedings and deadlines in this action pending resolution of the motions for transfer and consolidation under 28 U.S.C. § 1407 that are currently pending before the Judicial Panel on Multidistrict Litigation (“JPML”). The JPML will hear oral argument on the Section 1407 motions on September 26, 2019, and Defendants Capital One Financial Corporation, Capital One, N.A., and Capital One Bank (USA), N.A. (collectively, “Capital One”) anticipate an order regarding transfer and consolidation of this case and other related cases to be issued shortly thereafter. All the other parties in this action, including Plaintiffs and Defendants Amazon.com, Inc. and Amazon Web Services, Inc., agree to the requested stay. This case is one of over 45 putative class actions filed in connection with the cyber incident that Capital One announced on July 29, 2019. Plaintiffs filed the Complaint in this case on August 1, 2019; Capital One was served on August 5, 2019; and Capital One’s deadline to answer or respond to the Complaint is currently August 26, 2019. On July 31, 2019, plaintiffs in a related case pending in this District, Fadullon v. Capital One Financial Corporation, et al., Case No. 2:19-cv-01189 (W.D. Wash., filed July 30, 2019), filed a motion for consolidation and transfer under 28 U.S.C. § 1407 with the JPML in In re Capital One Consumer Data Breach Litigation, MDL No. 2915 (J.P.M.L. July 31, 2019) (“In re Capital One”). See In re Capital One, Dkt. No. 1. That motion seeks to have related actions arising out of the Capital One cyber incident, including this case, consolidated with the Fadullon case and transferred to this District for pretrial proceedings. Subsequently, plaintiffs in other related cases have filed briefs in the In re Capital One matter that support transfer and consolidation, but seek other transferee courts, including the Eastern District of Virginia, Alexandria Division (id. at Dkt. Nos. 5 and 7) and the District of the District of Columbia (id. at Dkt. No. 8). Numerous notices of related actions have also been filed in In re Capital One, and additional related cases continue to be filed and are in the process of being noticed to the JPML as potential tag-along actions. Given that over 45 putative class actions have been filed, all related to the same underlying event and asserting the same or substantially similar factual allegations, the JPML is highly likely to grant the motions for transfer and consolidation. If it does, to conserve the parties’ resources and promote judicial economy, this case will be consolidated with the other putative class actions for centralized pretrial proceedings in a single transferee court. Under these circumstances, “[c]ourts frequently grant stays pending a decision by the MDL Panel regarding whether to transfer a case.” Good v. Prudential Ins. Co. of Am., 5 F.Supp.2d 804, 809 (N.D. Cal. 1998); see Short v. Hyundai Motor Am. Inc., No. C19-0318JLR, 2019 WL 3067251 (W.D. Wash. July 12, 2019) (granting stay pending JPML’s resolution of Section 1407 motion); Gonzalez v. Merck & Co., No. CV-07-3034-LRS, 2007 WL 2220286, at *2 (E.D. Wash. Aug. 2, 2007) (granting defendant’s motion to stay pending transfer decision and noting that “well settled case law . . . dictates a stay should be granted to promote judicial economy”); Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1362 (C.D. Cal. 1997) (granting stay pending JPML’s ruling because “a majority of courts have concluded that it is often appropriate to stay preliminary pretrial proceedings while a motion to transfer and consolidate is pending with the MDL Panel”); Bonefant v. R.J. Reynolds Tobacco Co., No. 07-60301-CIV, 2007 WL 2409980, at * 1 (S.D. Fla. July 31, 2007) (“[I]t is common practice for courts to stay an action pending a transfer decision by the JPML.”). In fact, Capital One has already successfully moved to stay numerous cases related to the cyber incident, and to date no court has denied a request to stay a case related case. See, e.g., Heath, et al. v. Capital One Financial Corp., et al., 3:19-cv-555-JAG, Dkt. No. 14 (E.D. Va. Aug. 16, 2019) (order staying nine related cases pending decision from the JPML); Hilker v. Capital One Financial Corp., et al., No. 1:19-cv-995-RDA-JFA Dkt. No. 15 (E.D. Va. Aug. 16, 2019) (order staying related case pending decision from the JPML). Here, too, a short stay of proceedings until the JPML resolves the pending Section 1407 motions will promote judicial economy and sound judicial administration, avoid duplicative pretrial proceedings and potentially inconsistent pretrial rulings, and prevent prejudice to all parties. DATED this 21st day of August, 2019. Respectfully submitted,