Amazon's Pending Motion to Dismiss Doesn't Preclude Discovery: Plaintiff

Nothing in the federal rules expressly or implicitly permits a party to stay discovery just because a motion to dismiss is pending, said plaintiff Tracy McCarthy in a Tuesday memorandum of law (docket 2:23-cv-01019) in opposition to Amazon and Audible’s motion to stay discovery in a fraud case. Defendants moved the court Aug. 23 to stay discovery and related deadlines pending a decision on their motion to dismiss the first amended complaint (FAC), saying discovery should be stayed when the motion is “‘potentially dispositive of the entire case’ and ‘can be decided without additional discovery -- both of which are true here.'" McCarthy's FAC again “fails to state any plausible claim,” defendants said, and no discovery is necessary to decide their motion, “which challenges the FAC’s facial deficiencies.” Defendants don’t raise any threshold issues that would justify a stay, said plaintiff's memorandum. Though courts may take a “preliminary peek” at the merits of a dispositive motion to assess whether a stay is warranted, it “is not intended to prejudge the outcome of the motion,” it said, citing Dorian v. Amazon Web Service. On her opposition to their motion to dismiss, despite Amazon’s assertions, McCarthy made “particularized factual allegations supporting her claims under New York law” for violations under the state’s General Business Law and unjust enrichment, said the memorandum. McCarthy alleged defendants “did not clearly and conspicuously inform her that when she used ‘credits’ to purchase" an audiobook, "she would be automatically enrolled in a membership” to Amazon subsidiary Audible. After a 30-day trial period, defendants charged her $14.95 per month for nearly 3.5 years for a total of $598, it said. McCarthy “specifically alleged what was misleading, as well as the causal connection between the misleading statements and her purported injury for her causes of action,” it said. Plaintiff’s claims and defendants’ defenses “appear to require fact-based analyses that discovery would inform,” said the memorandum, citing Dorian. The parties dispute the nature of the “credits,” the enrollment process and defendants’ disclosures, it said. Defendants’ argument that without a stay they will suffer “real prejudice if they are required to expend time and resources responding to discovery,” McCarthy cited Nelson Capital v. Campbell, in which the same court denied a stay, ruling, “defendants’ burden of producing discovery, preparing for trial, and trial ... does not demonstrate hardship.”