Thimmegowda v. Big Fish Games Inc

• Court: District Court, W.D. Washington
• Decided: September 12, 2019
• Docket: 2:19-cv-00199
• Status: Unknown

Opinion

1 HONORABLE RONALD B. LEIGHTON 2 3 4

5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 MANASA THIMMEGOWDA, CASE NO. C19-199RBL 9 Plaintiff, ORDER 10 v. 11 BIG FISH GAMES INC, et al., 12 Defendants. 13

14 THIS MATTER is before the Court on Defendant’s Motion to Stay Discovery [Dkt. # 43] 15 pending a ruling on its motion to compel arbitration [Dkt. # 33]. Defendants ask the Court to stay 16 all discovery until rules on Defendants’ Motion to Compel arbitration. Three Defendants— 17 Aristocrat Leisure (an Australian corporation), Aristocrat Technologies (a Nevada corporation) 18 and Churchill Downs Inc. (a Kentucky corporation)—have also moved to dismiss for lack of 19 personal jurisdiction. [Dkt. # 35]. 20 Thimmegowda concedes that substantive discovery should await the Court’s arbitration 21 decision but argues that there is no reason to delay limited discovery into the jurisdictional 22 defense, in the meantime. 23 24 1 Notwithstanding the jurisdictional motion, the primary issue in this case (and in the 2 related Kater case1, and in several similar pending “gaming application” cases), is whether the 3 plaintiff’s claims must be arbitrated under the TOU. Defendants ask the Court to resolve their 4 right to compel arbitration before subjecting them to any discovery.

5 The parties agree that the stay issue is addressed to the Court’s discretion. See, for 6 example, Butcher’s Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir. 1986). 7 The underlying arbitrability issue will be informed by the result of two (or three) similar 8 cases now on appeal in the Ninth Circuit. See Wilson v. Huuuge, Cause No. 18-cv-5276RBL, and 9 Benson v. Double Down Interactive LLC, et.al., Cause No. 18-cv-0525RBL. Wilson was recently 10 argued, and Double Down will be argued November 5. The Ninth Circuit stayed an interlocutory 11 appeal in a third case, Wilson v Playtika, Cause No. 18-5277RBL, until its decision in Huuuge. 12 See Court of Appeals Dkt. # 9 in Playtika. Each case, like this one, involves the enforceability of 13 arbitration clauses in an application’s or game’s TOUs. 14 The Motion to Compel in this case (like the one in Kater) was recently re-noted for

15 October 11. The Court presumes that these motions were re-noted so that the Ninth Circuit’s 16 opinion in Huuuge will issue before the Court rules on them. 17 The Court recognizes that the Defendants have raised a new arbitrability argument in this 18 case: actual or imputed notice of the TOUs, on top of the constructive notice at issue in the 19 appealed orders. Actual notice was not fully addressed in the prior cases. Thus, the Huuuge 20 opinion will not necessarily inform the resolution of the motion in this case. Nevertheless, the 21 22 1 This case is related to Kater v Churchill Downs, et al., Cause No. 15-612RBL, which covers an earlier time frame. 23 Both cases relate to the Big Fish Casino gaming application. In Kater, this Court held that Churchill Downs had waived its right to require Kater to arbitrate. There is a similar pending motion to compel arbitration of the 24 plaintiffs’ amended claims in Kater. 1 Ninth Circuit’s opinions in the related appeals obviously may impact the arbitrability issues in 2 this case. 3 For that reason, the Court will STAY all discovery in this case, and the pending motion 4 to compel arbitration, until 30 days after the Ninth Circuit’s resolution of (at least2) Huuuge.

5 The Court anticipates that the Double Down and Playtika decisions will follow within a few 6 months, but we can re-visit the potential impact of those decisions after Huuuge. 7 Meanwhile, the Motion to Stay discovery [Dkt. # 43] is GRANTED and this case is 8 STAYED pending the Ninth Circuit’s decision in Huuuge, or further order of the Court. The 9 pending Motions [Dkt. #s 33 and 35] are TERMINATED without resolution and they can be re- 10 noted (or revised and re-filed) when the stay is lifted. 11 IT IS SO ORDERED. 12 Dated this 12th day of September, 2019. 13 A

14 Ronald B. Leighton 15 United States District Judge 16 17 18

19 20 21 22

23 2 The Court is inclined to await a decision in all three appeals, and hereby solicits the parties’ input on the status of this stay—should the case remain stayed, pending opinions in Double Down and Playtika?—within 10 days of the 24 Huuuge opinion.