Molander v. Google LLC, Case No. 5:20-cv-00918-EJD

473 F.Supp.3d 1013

Brandon MOLANDER, Plaintiff,

v.GOOGLE LLC, Defendant.

Case No. 5:20-cv-00918-EJD

United States District Court, N.D. California, San Jose Division.

Signed July 22, 2020

David Philip Milian, John Christopher Carey, Carey Rodriguez Milian Gonya LLP, Jennifer Marie Hernandez, Miami, FL, Robert Ahdoot, Theodore Walter Maya, Tina Wolfson, Ahdoot & Wolfson, P.C., Los Angeles, CA, for Plaintiff.

Sunita Bali, Perkins Coie LLP, San Francisco, CA, Susan D. Fahringer, Perkins Coie LLP, Seattle, WA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO STAY

Re: Dkt. No. 35

EDWARD J. DAVILA, United States District Judge

Before the Court is Defendant Google's motion to dismiss, transfer, or stay. Having considered the Parties’ papers, the Court GRANTS Defendant's motion to stay.¹

I. BACKGROUND

Plaintiff (as part of the same putative class) has already litigated the claims asserted in this action. Plaintiff is represented by Ahdoot & Wolfson, PC and Carey Rodriguez Milian Gonya LLP ("AWCR"). More than four years ago, AWCR began filing a series of lawsuits alleging that Defendant violated the Illinois Biometric Information Privacy Act ("BIPA") in connection with Google Photos service. In March 2016, AWCR filed two cases in the Northern District of Illinois—Rivera v. Google LLC , No. 1:16-cv-02714 and Weiss v. Google Inc. , No. 1:16-cv-2870. Those cases were consolidated (the "Rivera Federal Action"). In the Rivera Federal Action, the plaintiffs alleged that Google Photos, a service that allows users to store and organize their digital photos, collected and stored their biometric data in violation of BIPA. Like Plaintiff, the Rivera plaintiffs sought to represent a class of persons "who had their biometric identifiers, including scans of face geometry, collected, captured, received, or otherwise obtained by Google from photographs uploaded within the state of Illinois." See Declaration of Sunita Bali in Support of Google LLC's Motion to Dismiss ("Bali Decl."), Ex. A, Dkt. 35-2 (comparing complaints). Also, like Plaintiff, the Rivera plaintiffs sought statutory damages, equitable relief, and attorneys’ fees and costs. Id.

The Rivera Federal Action was extensively litigated. Google first moved to dismiss the Rivera Federal Action on statutory and constitutional grounds. In a 30-page opinion, the district court (Hon. Edmond E. Chang) denied Google's motion to dismiss. Rivera v. Google Inc. ("Google I") , 238 F. Supp. 3d 1088 (N.D. Ill. 2017). The parties then embarked on 11 months of intensive fact discovery closely supervised by Judge Chang, which included more than 150 written discovery requests, the exchange of more than 300,000 pages of documents, and the depositions of multiple individuals and corporate representatives on highly technical topics related to the operation of Google Photos and the feasibility of limiting features by geographic region to comply with BIPA. See Bali Decl. ¶ 3. More than two years after the Rivera Federal Action was filed, fact discovery closed. Thereafter, on December 27, 2018, Judge Chang granted Defendant Google's motion for summary judgment on the ground that the plaintiffs could not show they suffered an injury-in-fact sufficient to confer Article III standing. Rivera v. Google Inc. ("Google II") , 366 F. Supp. 3d 998 (N.D. Ill. 2018). The plaintiffs subsequently appealed Judge Chang's Article III ruling to the Seventh Circuit Court of Appeals. Defendant Google cross-appealed, arguing that the case should be dismissed because plaintiffs failed to state a claim upon which relief could be granted. Both appeals remain pending. See Rivera v. Google LLC , No. 19-1182 (7th Cir.).

On May 24, 2019—just a few months after appealing Judge Chang's decision to the Seventh Circuit—AWCR filed Rivera v. Google LLC , No. 2019-CH-00990 (Ill. Cir. Court, Cook Cty.) (the "Rivera State Action") in Illinois state court. The named plaintiff in the Rivera State Action is the same as the Rivera Federal Action, and the claims alleged are the same. See Bali Decl., Ex. A. Due to the duplication, the Illinois court stayed the Rivera State Action. AWCR then filed another action in Illinois state court on September 26, 2019. See Azzano v. Google, LLC , No. 2019-CH-11153 (Ill. Cir. Court, Cook Cty.) ("Azzano "). While the named plaintiff is different, like the two Rivera actions, the Azzano action raises the same claims, based on the same subject matter, against the same defendant. Indeed, the Azzano plaintiffs are members of the putative class alleged in the Rivera Federal and State Actions. See Bali Decl., Ex. A. Azzano was deemed "related" and transferred to the judge presiding over the Rivera State Action, who again stayed the case. Both the Rivera State Action and Azzano remain stayed.

Not long after their Illinois state court cases were stayed, AWCR filed the case at hand. Like the Rivera Federal Action, the Rivera State Action, and Azzano , this case asserts the same claims, based on the same facts, against the same defendant, and on behalf of the same putative class. Id. ; see also id. , Ex. B (redline document comparing the consolidated complaint in the Rivera Federal Action and the complaint in this case). Specifically, Plaintiff alleges that Defendant violated: (1) Section 14/15(b) of BIPA by collecting biometric identifiers and biometric information from photos uploaded by him and by others without first providing notice and obtaining consent and (2) Section 14/15(a) of BIPA by possessing biometric identifiers and biometric information and by failing to publish a written policy for destroying such information. See Class Action Complaint ("Compl.") ¶¶ 29–35, 47–55. Based on these allegations, Plaintiff seeks to represent a class of persons who had their "biometric identifiers" obtained by Defendant from photographs uploaded within the state of Illinois. Id. ¶ 36.

On June 18, 2020, Defendant filed a motion to dismiss, transfer, or stay the case based on the first-to-file rule. Notice of Motion and Motion to Dismiss, Transfer, or Alternatively Stay ("Mot"), Dkt. 35. Plaintiff filed its opposition on July 6, 2020. Plaintiff's Opposition to Google's Motion to Dismiss ("Opp."), Dkt. 39. Thereafter, Defendant filed its reply on July 16, 2020. Reply in Support of Google's Motion to Dismiss ("Reply"), Dkt. 45.

II. LEGAL STANDARD

The first-to-file rule is a "generally recognized doctrine of federal comity which permits a district court to decline jurisdiction over an action when a complaint involving the same parties and issues has already been filed in another district." Pacesetter Sys., Inc. v. Medtronic, Inc. , 678 F.2d 93, 94–95 (9th Cir. 1982). The rule is meant to "avoid placing an unnecessary burden on the federal judiciary, and to avoid the embarrassment of conflicting judgments," and "should not be disregarded lightly." Church of Scientology of Cal. v. U.S. Dep't of Army , 611 F.2d 738, 750 (9th Cir. 1979), overruled on other grounds by Animal Legal Def. Fund v. U.S. Food & Drug Admin. , 836 F.3d 987 (9th Cir. 2016). "It provides that where substantially identical actions are proceeding in different courts, the court of the later-filed action should defer to the jurisdiction of the court of the first-filed action by either dismissing, staying, or transferring the later-filed suit." SAES Getters S.p.A. v. Aeronex, In. , 219 F. Supp. 2d 1081, 1089 (S.D. Cal. 2002). The rule reflects the common-sense proposition that "when two identical actions are filed in courts of concurrent jurisdiction, the court which first acquired jurisdiction should try the lawsuit." Pacesetter Sys. , 678 F.2d at 95 ; Halo Elecs., Inc. v. Bel Fuse Inc. , 2008 WL 1991094, at *2 (N.D. Cal. May 5, 2008).

III. DISCUSSION

A. Applicability of the First-to-File Rules

Courts consider three factors in determining whether the first-to-file rule applies: (1) the chronology of the actions; (2) the similarity of the parties; and (3) the similarity of the issues. See Kohn Law Grp., Inc. v. Auto Parts Mfg. Miss., Inc. , 787 F.3d 1237, 1240 (9th Cir. 2015). In this case, the factors weigh in favor of applying the first-to-file rule.

First, Defendant correctly argues that the Rivera Federal (and State) actions were filed before this matter. MTD at 5–6. Plaintiff filed the Rivera Federal Action in March 2016. Four years later, Plaintiff filed this action. Hence, the Northern District of Illinois (and the Illinois state courts) had this matter first. See Gens v. SEZ Am., Inc. , 2007 WL 832050, at *4 (N.D. Cal. Mar. 19, 2007) ("Because [Plaintiff] brought his unfair competition claim in state court nine months before he first asserted it here, this Court will apply the first-to-file rule").

Second, Defendant again correctly argues that parties are sufficiently identical in the Rivera Federal Action and in this matter. MTD at 7. In each case, the defendant is Google and the putative classes are the same (which means the plaintiffs in each action are the same). See Pedro v. Millennium Prods., Inc. , 2016 WL 3029681, at *3 (N.D. Cal. May 27, 2016) ("[T]he majority of district courts in the Ninth Circuit that have applied the first-to-file rule in the context of a class action have compared the putative classes rather than the named plaintiffs."); see also Ford v. [24]7.ai, Inc. , 2019 WL 570756, at *3 (N.D. Cal. Feb. 12, 2019) ("Courts in this district generally evaluate this factor by comparing the proposed putative classes rather than the individual class representatives."), rev'd on other grounds by 812 Fed.Appx. 576 (9th Cir. 2020). Here, the putative classes are identical: each includes people "who had their biometric identifiers, including scans of face geometry, collected, captured, received, or otherwise obtained by Google from photographs uploaded within the state of Illinois." Compl. ¶ 36; see also Bali Decl., Ex. A. Accordingly, the parties are sufficiently identical.

Third, the issues to be decided are identical. In both actions, members of the...