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.”

Asian American grocery chain Weee seeks dismissal of the May 11 consolidated class action arising from a February data breach (see 2305120011) under the first-to-file doctrine and for the plaintiffs’ lack of standing and their failure to state a claim upon which relief can be granted, said Weee’s memorandum Tuesday (docket 4:23-cv-02314) in U.S. District Court for Northern California in San Francisco in support of its motion to dismiss. The plaintiffs “wholly ignore the inescapable fact” that Weee immediately notified all potentially affected individuals of the breach, including the type of information that may have been impacted, it said. The data exposed in the breach was “non-sensitive in nature,” and didn’t include any personal identifiable information “as defined under applicable law,” it said. The complaint also “fails to acknowledge that there is already a putative class action pending” in the Southern District of New York stemming from the same breach that seeks to represent the same putative class, and was filed three months before the “instant action,” it said. It’s clear the complaint should be dismissed, because dismissal “is warranted under the first-to-file doctrine,” it said. The court alternatively should transfer this action under the first-to-file doctrine to the Southern District of New York, where Weee’s motion to dismiss remains pending, it said. Denying Weee’s motion under the first-to-file doctrine “would defy long-standing and controlling legal precedent and, worse, create the risk of inconsistent findings and great prejudice” to Weee, it said. If the court doesn't dismiss the case under the first-to-file doctrine, the complaint “still warrants dismissal,” it said.

Three judges in a single day in the Northern District of California in San Jose recused themselves from plaintiff Lisa Bodenburg’s fraud class action alleging Apple delivers iCloud+ subscribers 5 GB less monthly storage capacity than they pay for (see 2308270001). Signed recusal orders were entered Tuesday in docket 5:23-cv-04409 by U.S. District Judges Beth Labson Freeman and Casey Pitts and by U.S. Magistrate Judge Susan van Keulen. Bodenburg's class action alleges breach of contract against Apple, plus violations of several statutes, including California's Consumer Legal Remedies Act and its Unfair Competition Law. The case was reassigned to U.S. District Judge Charles Breyer in San Francisco, said a clerk's order Wednesday.

Plaintiffs Bettye Foster and Deborah Hunter and defendant Fitbit reached an agreement to resolve a June 2 putative fraud class action in its entirety, the parties said in a Monday joint notice of settlement (docket 3:23-cv-02753) in U.S. District Court for Northern California in San Francisco. Plaintiffs alleged Fitbit fitness trackers are “incapable” of rendering accurate blood oxygen readings for people of color but the company conceals that incapability from the buying public (see 2306030001). The parties are preparing a confidential settlement agreement, and plaintiffs anticipate filing the notice of dismissal with prejudice on or before Sept. 11. The parties request the initial case management conference scheduled for Thursday and all other hearings, dates, and deadlines be vacated pending plaintiffs’ filing of the notice of dismissal.

Counsel for plaintiffs Robert Casey, Lawrence Maloney and Ruth Maloney filed a notice of related action (docket 3083) Monday for Casey et al. v. Progress Software (docket 1:23-cv-11913) in MOVEit Customer Data Security Breach Litigation before the U.S. Judicial Panel on Multidistrict Litigation. Plaintiffs, customers of Guardian Life Insurance, allege their “highly sensitive [personally identifiable information]" provided to GLIC was among the data accessed and exfiltrated by an unauthorized third party in the May Progress Software data breach. Plaintiffs, who name PSC as the sole defendant, received notice that their PII was compromised in the breach by Pension Benefits Information. Casey plaintiffs charge PSC with negligence and negligence per se.

Investor Locust Group doesn’t have “factual support for a single element of its claim” that JMBT Live and CEO Michael Russell “engaged in fraud,” said the reply memorandum Monday (docket 1:23-cv-04203) of JMBT and Russell in U.S. District Court for Southern New York in Manhattan in support of their Aug. 8 motion to dismiss (see 2308090041). Locust alleges Russell and JMBT, owner of the Tilt entertainment platform, “misrepresented” the status of their contracts and negotiations with prospective content partners to investors. Locust’s Aug. 21 opposition to the motion to dismiss (see 2308230036) claims the defendants “ignore the well-pleaded allegations” in the complaint, said the reply memorandum. But “the truth is there is nothing to ignore,” it said. Locust spends the bulk of its opposition “trying to recast its entirely conclusory allegations as factual allegations and claiming that such allegations must be taken as true” for the purposes of the motion to dismiss, it said. But that “tactic” doesn’t work, it said. Courts will only take non-conclusory allegations as true under Rule 12(b)(6), and Locust doesn’t offer any, it said. The court has “routinely rejected” the “boilerplate” allegations that Locust offers as “insufficient to survive a motion to dismiss,” it said: “So its fraud claim fails.”

Parties in a Fitbit tracker fraud case must file a joint case management statement or notice of settlement by Tuesday, said a text-only notice Friday in U.S. District Court for Northern California in San Francisco. The case management conference is maintained for Thursday via Zoom until a joint case management statement or notice of settlement is filed, it said (docket 3:23-cv-02753). Fitbit and plaintiffs Bettye Foster and Deborah Hunter said Thursday they’re in “active settlement discussions" that may resolve the matter entirely and obviate the need for further proceedings (see 2308250022). The June 2 putative fraud class action alleges Fitbit fitness trackers are “incapable” of rendering accurate blood oxygen readings for people of color, yet Fitbit conceals that incapability from the buying public (see 2306030001).

Two parties in a pro se negligence lawsuit involving the 2019 Capital One data breach agreed to extend by 14 days a date for Citibank to reply to plaintiff Venton Smith’s opposition to Citibank’s motion to compel arbitration, said a joint stipulation (3:23-cv-02804) Friday in U.S. District Court for Northern California in San Francisco. Smith alleges the data breach, in which an Amazon Web Services employee stole data affecting about 106 million customers, led to at least 12 of his accounts being fraudulently accessed to secure loans, merchandise and products totaling $92,300. In July, Citibank, Best Buy and Macy’s moved the court to compel Smith to arbitrate his fraud lawsuit against numerous banks, retailers and credit reporting agencies on an individual basis and to stay the instant action pending the outcome of arbitration proceedings (see 2307240047). Defendants asserted a valid and enforceable agreement to arbitrate exists between the parties that encompasses Smith’s claims; Smith must arbitrate his claims as required by the arbitration agreement; and the instant action should be stayed pending completion of the arbitration, it said. Citibank's new response date is Sept. 6.

U.S. District Judge Brian Wimes for Western Missouri in Kansas City set an initial pretrial conference for Sept. 29 at 10 a.m. CDT in the multidistrict litigation arising from T-Mobile’s summer 2022 data breach, said his signed order Friday (docket 4:23-md-03073). The conference will be in person, with the option to participate via videoconference, it said. The parties will file a joint proposed agenda for the conference by Sept. 18, it said. Wimes’ order was the first procedural development in the MDL since the Judicial Panel on Multidistrict Litigation transferred the cases to him June 2 for pretrial consolidation (see 2306050001).

Plaintiffs Bettye Foster and Deborah Hunter and defendant Fitbit “are in active settlement discussions that may resolve this matter in its entirety and obviate the need for further proceedings,” said their joint case management statement Thursday (docket 3:23-cv-02753) in U.S. District Court for Northern California in San Francisco. The June 2 putative fraud class action alleges Fitbit fitness trackers are “incapable” of rendering accurate blood oxygen readings for people of color, yet Fitbit conceals that incapability from the buying public (see 2306030001). U.S. District Judge Trina Thompson had ordered the joint statement in preparation for an initial case management conference scheduled for Aug. 31. The parties dispensed with a full joint case management statement “to avoid burdening” the court in light of the ongoing settlement talks, they said, and asked that the conference be taken “off-calendar.” The parties by Aug. 31 will either submit an update on the settlement status or plaintiffs Foster and Hunter will file a dismissal, said the statement.