Case 3:22-cv-03074-CRB Document 35 Filed 08/23/22 Page 1 of 16
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`Daniel H.R. Laguardia (SBN 314654)
`SHEARMAN & STERLING LLP
`535 Mission Street, 25th Floor
`San Francisco, CA 94105
`Telephone:
`(415) 616-1100
`Fax:
`(415) 616-1199
`Email: daniel.laguardia@shearman.com
`
`Adam S. Hakki (admitted pro hac vice)
`Paula H. Anderson (admitted pro hac vice)
`SHEARMAN & STERLING LLP
`599 Lexington Avenue
`New York, New York 10022
`Telephone:
`(212) 848-4000
`Fax:
`(212) 848-7179
`Email: adam.hakki@shearman.com
`
`paula.anderson@shearman.com
`
`Attorneys for Defendant Twitter, Inc.
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`WILLIAM HERESNIAK, on behalf of
`himself and all others similarly situated,
`
`Plaintiff,
`
`v.
`
`ELON R. MUSK, X HOLDINGS I, INC., X
`HOLDINGS II, INC., and TWITTER, INC.,
`
`Defendants.
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` Case No. 3:22-cv-03074
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`DEFENDANT TWITTER, INC.’S
`OPPOSITION TO MOTION TO
`EXPEDITE AND COORDINATE
`DISCOVERY
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`OPP. TO MOT. TO EXPEDITE AND COORDINATE DISCOVERY
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`Case 3:22-cv-03074-CRB Document 35 Filed 08/23/22 Page 2 of 16
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`TABLE OF CONTENTS
`INTRODUCTION ........................................................................................................................... 1
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`BACKGROUND ............................................................................................................................. 3
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
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`The Merger Agreement. .......................................................................................... 3
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`Twitter has brought an expedited action in the Delaware Court of Chancery
`seeking to enforce the terms of the Merger Agreement. ......................................... 4
`
`Plaintiff brought this action to enforce the terms of the Merger Agreement. ......... 4
`
`Another Twitter shareholder has brought a putative class action in the
`Delaware Court of Chancery seeking to enforce the terms of the Merger
`Agreement. .............................................................................................................. 5
`
`Plaintiff requests expedited and coordinated discovery allowing him to
`participate in the Delaware action that Twitter has brought against Musk ............. 5
`
`ARGUMENT .................................................................................................................................. 5
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`I.
`
`Plaintiff is not entitled to expedited or coordinated discovery as a matter of
`right. ........................................................................................................................ 5
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`A. Plaintiff must show “good cause” for expedited discovery. ................................... 5
`
`B. Plaintiff has no right to coordinated discovery. ...................................................... 5
`
`II.
`
`III.
`
`IV.
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`The Motion should be denied because Plaintiff lacks standing. ............................. 6
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`The Motion should be denied because Plaintiff filed suit in the wrong
`forum. ...................................................................................................................... 7
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`The Motion should be denied because Plaintiff cannot establish “good
`cause.” ..................................................................................................................... 8
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`V.
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`Expedited and coordinated discovery would be inefficient and unnecessary. ........ 9
`
`CONCLUSION ............................................................................................................................. 10
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`OPP. TO MOT. TO EXPEDITE AND COORDINATE DISCOVERY
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`Case 3:22-cv-03074-CRB Document 35 Filed 08/23/22 Page 3 of 16
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`Animal Legal Def. Fund v. U.S. Dep’t of Agric.,
`935 F.3d 858 (9th Cir. 2019) ..................................................................................................... 6
`Apple Inc. v. Samsung Elecs. Co., Ltd.,
`2011 WL 1938154 (N.D. Cal. May 18, 2011) .......................................................................... 9
`Atl. Marine Constr. Co. v. U.S. Dist. Ct.,
`571 U.S. 49 (2013) .................................................................................................................... 8
`Boxer v. Accuray Inc.,
`906 F. Supp. 2d 1012 (N.D. Cal. 2012) ................................................................................ 2, 6
`EHang Inc. v. Wang,
`2021 WL 3934325 (N.D. Cal. Aug. 20, 2021) .................................................................... 1, 10
`Facebook, Inc. v. Various, Inc.,
`2011 WL 2437433 (N.D. Cal. June 17, 2011) ...................................................................... 5, 9
`Hadley v. Shaffer,
`2003 WL 21960406 (D. Del. Aug. 12, 2003) ........................................................................... 8
`In re High-Tech Emp. Antitrust Litig.,
`856 F. Supp. 2d 1103 (N.D. Cal. 2012) .................................................................................... 9
`Huang v. Futurewei Techs., Inc.,
`2018 WL 1993503 (N.D. Cal. Apr. 27, 2018) ...................................................................... 2, 8
`Huene v. U.S. Dep’t of Treas.,
`2013 WL 417747 (E.D. Cal. Jan. 31, 2013) .............................................................................. 8
`Interserve, Inc. v. Fusion Garage PTE, Ltd.,
`2010 WL 143665 (N.D. Cal. Jan. 7, 2010) ............................................................................... 9
`In re Lithium Ion Batteries Antitrust Litig.,
`2013 WL 2237887 (N.D. Cal. May 21, 2013) .......................................................................... 9
`Manetti-Farrow, Inc. v. Gucci Am., Inc.,
`858 F.2d 509 (9th Cir. 1988) ..................................................................................................... 7
`NAMA Holdings, LLC v. Related World Mkt. Ctr., LLC,
`922 A.2d 417 (Del. Ch. 2007) ................................................................................................... 6
`NovelPoster v Javitch Canfield Grp.,
`2014 WL 5687344 (N.D. Cal. Nov. 4, 2014) ............................................................................ 6
`Qwest Commc’ns Int’l, Inc. v. Worldquest Networks, Inc.,
`213 F.R.D. 418 (D. Colo. 2003) ................................................................................................ 9
`Roe v. Gray,
`165 F. Supp. 2d 1164 (D. Colo. 2001) ...................................................................................... 8
`
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`Sladek v. City of Colo. Springs,
`2013 WL 5526582 (D. Colo. Oct. 7, 2013) ............................................................................... 6
`Soto v. Castlerock Farm. & Transp., Inc.,
`282 F.R.D. 492 (E.D. Cal. 2012) ............................................................................................... 6
`TAAG Linhas Aereas de Angola v. Transam. Airlines, Inc.,
`915 F. 2d 1351 (9th Cir. 1990) .................................................................................................. 8
`Tooley v. Donaldson, Lufkin & Jenrette, Inc.,
`845 A.2d 1031 (Del. 2004) ........................................................................................................ 7
`Walters v. Famous Transp., Inc.,
`488 F. Supp. 3d 930 (N.D. Cal. 2020) ...................................................................................... 8
`Other Authorities
`Coordinating Multijurisdiction Litigation: A Pocket Guide for Judges, Fed. Judicial
`Ctr., Nat’l Ctr. for State Courts, (2013) ................................................................................... 6
`Del. Ch. Ct. R. 24 ............................................................................................................................ 2
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`Case 3:22-cv-03074-CRB Document 35 Filed 08/23/22 Page 5 of 16
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`INTRODUCTION
`Plaintiff’s Motion to Expedite and Coordinate Discovery (the “Motion”) should be denied.
`In the Delaware Court of Chancery, Defendant Twitter, Inc. (“Twitter”) is vigorously pursuing a
`judgment against Musk and his merger affiliates X Holdings I, Inc. and X Holdings II, Inc.
`(collectively, the “Musk Defendants”) that would require them to perform their obligations under
`the Merger Agreement with Twitter, including their obligation to close the acquisition at the agreed
`upon price of $54.20 per share. That case is hurtling through expedited discovery and will be tried
`in less than 60 days – on October 17, 2022. Unwilling to stand back – even briefly – while Twitter
`pursues enforcement of the Merger Agreement for the benefit of all stockholders, Plaintiff (a
`purported Twitter stockholder from Virginia) filed a wholly unnecessary claim in this Court
`demanding substantially the same declaratory and injunctive relief that Twitter is now pursuing in
`Delaware. Plaintiff also elected to sue Twitter, rather than just the Musk Defendants, presumably in
`hopes of better explaining why he sued here rather than in Delaware or his home jurisdiction.
`Plaintiff offers no plausible reason why this Court should take the extraordinary step of
`effectively intervening in the Delaware action to order that he be permitted to participate in the
`critical and expedited discovery transpiring there. There are, in fact, overwhelming grounds to deny
`that relief. First, Plaintiff does not have standing to enforce Twitter’s rights under the Merger
`Agreement. Second, the Merger Agreement makes Delaware the exclusive jurisdiction for any claim
`arising from the agreement. Given the absence of standing and any right to proceed with his
`injunctive relief/declaratory judgment claim (the only claim against Twitter) in this Court, there is
`no basis to grant Plaintiff any discovery at this time, let alone expedited discovery under an
`extraordinary cross-jurisdictional coordination order. Third, even if Plaintiff had standing and were
`in the right court, he has not established good cause for the extraordinary relief he seeks. The Motion
`does not plausibly explain why expediting discovery would be superior to awaiting the outcome of
`the highly expedited litigation in Delaware. That litigation is virtually certain to render Plaintiff’s
`claim for injunctive/declaratory relief moot. To the extent Plaintiff seeks money damages, the only
`distinction he draws with the Delaware action, such claims are no basis for injunctive relief or
`expedited proceedings. See EHang Inc. v. Wang, 2021 WL 3934325 (N.D. Cal. Aug. 20, 2021).
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`Virtually all of Plaintiff’s purported efficiency arguments focus on the burden on Defendants
`that would supposedly result if his discovery here is not expedited and coordinated with the
`Delaware action. But that is Defendants’ argument to make, not his, and the most efficient course
`from Twitter’s perspective is to resolve the threshold issues with Plaintiff’s claim on motion to
`dismiss, as well as questions of the appropriate forum, before Plaintiff receives discovery. Where,
`as here, there is significant doubt as to whether a plaintiff has standing, that issue should be resolved
`before discovery. E.g., Boxer v. Accuray Inc., 906 F. Supp. 2d 1012, 1015 n. 1 (N.D. Cal. 2012)
`(denying motion for expedited discovery as moot because “the Court must determine, as a threshold
`matter, whether it has subject matter jurisdiction”). Similarly, where, as here, there is significant
`doubt as to whether Plaintiff can pursue his claim in this forum, that issue, too, should be decided
`before discovery. E.g., Huang v. Futurewei Techs., Inc., 2018 WL 1993503, at *4 (N.D. Cal. Apr.
`27, 2018) (staying discovery prior to decision on motion to transfer where forum selection provision
`identified a different forum). Moreover, this approach is especially logical and efficient here because
`the outcome of the Delaware trial, commencing on October 17, is more than likely to render
`Plaintiff’s claim for injunctive/declaratory relief (the only claim he suggests needs expedited
`discovery and the only claim asserted against Twitter) moot. Plaintiff’s purported efficiency
`arguments also misapprehend the demanding schedule necessary to stay on pace for the current
`October 17 trial date. If expedition is ordered here, and the parties must accommodate Plaintiff’s
`intervention in the Delaware proceedings from this forum, it will introduce unnecessary distraction
`and logistical challenges in a critical case that is being prepared for trial in a very short period. This
`is yet another reason to deny the Motion and the extraordinary relief it seeks.
`If Plaintiff believes that his involvement in discovery in the Delaware action is important,
`nothing stops him from seeking to intervene or to otherwise file his complaint in Delaware. See Del.
`Ch. Ct. R. 24. Indeed, another purported Twitter stockholder asserting a substantially identical
`injunction/declaration claim against the Musk Defendants recently filed suit in the Delaware Court
`of Chancery.1 That case has been assigned to the same judge (Chancellor Kathaleen St. J.
`McCormick) overseeing Twitter’s case, and the same would have been done with Plaintiff’s claim
`
`1 Crispo v. Musk et al., C.A. No. 2022-0666-KSJM (Del. Ch. filed July 29, 2022).
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`had he filed it there. There are no federal claims in this action, and Plaintiff is not even a California
`resident, suggesting his decision to sue in this Court was made for reasons unrelated to a desire to
`have his claims quickly and efficiently coordinated with the Delaware proceeding. Indeed, when
`Plaintiff commenced this action on May 25, he did not even bother to serve his complaint. It was
`only after Twitter announced that it would take legal action against the Musk Defendants that
`Plaintiff commenced steps to serve his Amended Complaint here. Anderson Decl. ¶ 2. This record
`further undermines Plaintiff’s current insistence on a coordination and expedition order.
`Finally, Twitter requires no additional Court order to comply with its obligation to conduct
`a Rule 26(f) conference. Mot. at 1. As Plaintiff concedes, under the current schedule, the parties’
`Joint Case Management Statement is not due until September 16 and the Rule 26(f) conference does
`not need to occur until September 9. Twitter will, of course, fully comply with that schedule.
`The Motion should be denied.
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`BACKGROUND
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`I.
`
`The Merger Agreement.
`On April 25, Twitter and the Musk Defendants entered into an Agreement and Plan of
`Merger (the “Merger Agreement”). Anderson Decl., Ex. 1. The Merger Agreement includes
`conditions that must be satisfied prior to closing. For example, the deal must be approved by a
`shareholder vote, which is currently scheduled for September 13. Id. § 4.20. Assuming all conditions
`of the deal are met, Musk must close on the transaction no later than the second business day after
`the satisfaction of all conditions. Id. § 2.2. At closing, outstanding Twitter shares will convert to a
`right to payment of the corresponding portion of the merger consideration. Id. §§ 2.3, 3.1(c). The
`Merger Agreement contains three other provisions of relevance here:
`• First, there is a “No Third Parties Beneficiaries” provision: “[T]his Agreement is not
`intended to and shall not confer upon any Person other than the parties hereto any rights or
`remedies hereunder.” Id. § 9.7.
`• Second, there is a forum selection provision: “Each of the parties … agree that it will not
`bring any action relating to this Agreement ... in any court other than the Delaware Court of
`Chancery, any other court of the State of Delaware or any federal court sitting in the State
`of Delaware.” Id. § 9.10(a)(iii).
`• Third, there is a “Governing Law Provision”: “This Agreement and all actions ... relating to
`this Agreement ... shall be governed by … the laws of … Delaware.” Id. § 9.8.
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`Twitter has brought an expedited action in the Delaware Court of Chancery seeking to
`enforce the terms of the Merger Agreement.
`On July 8, Musk purported to terminate the Merger Agreement, alleging that Twitter was in
`breach. See Ex. 2. The same day, Twitter’s chairman announced that Twitter would pursue legal
`action in Delaware to enforce the Merger Agreement. See Ex. 3. Shortly thereafter, on July 12,
`Twitter filed suit in the Delaware Court of Chancery, seeking an order that requires the Musk
`Defendants “to specifically perform their obligations under the merger agreement and consummate
`the closing in accordance with the terms of the merger agreement” and “granting such injunctive
`relief as is necessary to enforce the decree of specific performance.” Dkt. 26-1, Ex. A at 61. On July
`19, the court granted Twitter’s motion for expedition and subsequently entered a condensed
`schedule, culminating in an October 17 trial date. See id., Ex. C. To meet the demands of that
`schedule, including a September 12 fact discovery deadline, the parties are engaged in fast-paced
`and voluminous discovery.
`III.
`Plaintiff brought this action to enforce the terms of the Merger Agreement.
`Plaintiff, a purported Twitter shareholder residing in Virginia, filed the original Complaint
`in this case on May 25, after Musk publicly stated that the deal was “temporarily on hold,” and filed
`an Amended Complaint on July 1. See Dkt. 1; Dkt. 7 (“Am. Compl.”). But Plaintiff sat on the lawsuit
`and did not take any action to serve the Musk Defendants or Twitter until July 11. See Dkt. 16. By
`that time, Twitter had announced that it was pursuing its own action in Delaware.
`The Amended Complaint asserts three claims, but only one naming Twitter as a defendant
`and relevant to Plaintiff’s Motion. See Am. Compl. ¶¶ 155-69. That claim alleges “[t]he conditions
`that Musk has stated must be met before the Buyout can go forward do not appear to be part of the
`contract he signed with Twitter” and requests “a declaration concerning these facts and issues and
`the parties’ respective rights and obligations” and “appropriate injunctive relief.” Id. ¶ 165. This is
`essentially identical to the relief sought by Twitter in Delaware. The other claims seek money
`damages against Musk for conduct relating to the Merger Agreement. See id. ¶¶ 155-69. While much
`of the Motion is dedicated to Musk’s conduct and the claims for damages brought against him,
`Plaintiff does not even attempt to argue that expedited and coordinated discovery is warranted in
`connection with those claims.
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`IV. Another Twitter shareholder has brought a putative class action in the Delaware Court
`of Chancery seeking to enforce the terms of the Merger Agreement.
`On July 29, another Twitter shareholder filed a putative class action complaint in the
`Delaware Court of Chancery seeking the same relief against the Musk Defendants as Plaintiff and
`Twitter – “an order of specific performance, requiring Defendants to comply with the Merger
`Agreement and effectuate the Merger.” Anderson Decl., Ex. 4 at 33. The case is assigned to the
`same judge overseeing the Delaware action between Twitter and Musk – Chancellor McCormick.
`The plaintiff there has moved for coordinated discovery and asked for a schedule that mirrors the
`schedule in the action between Twitter and Musk. See id., Exs. 5 and 6. The Musk Defendants have
`moved to dismiss the shareholder’s claim on standing grounds. See id., Ex. 7.
`
`V.
`
`Plaintiff requests expedited and coordinated discovery allowing him to participate in
`the Delaware action that Twitter has brought against Musk
`Plaintiff asks that discovery be expedited and that the Court force Defendants to allow him
`to participate in ongoing discovery in the Delaware action. When Plaintiff sought Defendants’
`position on the Motion, Defendants asked Plaintiff to identify the prejudice cured by that request
`and that he explain the basis for his standing and for filing in a California forum. See id., Ex. 8. His
`counsel asserted that “Plaintiff needs and is entitled to coordinated/expedited discovery in order to
`support Plaintiff’s anticipated motion for declaratory and injunctive relief” and then cited potential
`efficiencies for Defendants, but did not respond to the questions about standing or forum. Id.
`ARGUMENT
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`I.
`
`Plaintiff is not entitled to expedited or coordinated discovery as a matter of right.
`A.
`Plaintiff must show “good cause” for expedited discovery.
`Plaintiff is not entitled to expedited discovery as a matter of right. He must show “good
`cause.” Facebook, Inc. v. Various, Inc., 2011 WL 2437433, at *2 (N.D. Cal. June 17, 2011). In
`assessing “good cause,” courts review “the entirety of the record” and examine “the reasonableness
`of the request in light of all the surrounding circumstances.” Id. (citation omitted).
`B.
`Plaintiff has no right to coordinated discovery.
`Plaintiff is not entitled to “coordinated” discovery under any rule or statute. If he desires to
`participate in discovery for the Delaware action, the proper course would be to try to intervene in
`
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`that action or file suit in Delaware and move to consolidate the proceedings under Delaware rules.
`While courts handling related cases in different jurisdictions do sometimes coordinate schedules
`and discovery, it should involve the consent and cooperation of the parties and presiding judges and
`serve a useful purpose. See generally Coordinating Multijurisdiction Litigation: A Pocket Guide for
`Judges, Fed. Judicial Ctr., Nat’l Ctr. for State Courts (2013). Twitter opposes a coordination order
`and does not believe it is practical or useful given the threshold jurisdictional issues that should be
`resolved first, the schedule of the Delaware action, and the pendency of the separate shareholder
`action in Delaware seeking the same relief. Coordinated discovery in a case like this appears to be
`unprecedented. Plaintiff cites no authority to the contrary.
`II.
`The Motion should be denied because Plaintiff lacks standing.
`Before considering the Motion, “the Court must determine, as a threshold matter, whether
`it has subject matter jurisdiction.” Boxer, 906 F. Supp. 2d at 1015 n. 1 (denying expedited
`discovery). Even without a motion, “courts have an ‘independent obligation’ to police their own
`subject matter jurisdiction, including the parties’ standing” that “mimics the standard on a motion
`to dismiss.” Animal Legal Def. Fund v. U.S. Dep’t of Agric., 935 F.3d 858, 866 (9th Cir. 2019). A
`party’s inability to enforce the terms of a contract as a non-party raises a standing issue that defeats
`jurisdiction. NovelPoster v Javitch Canfield Grp., 2014 WL 5687344, *4 (N.D. Cal. Nov. 4, 2014)
`(dismissing claims for lack of subject matter jurisdiction because a nonparty did not have standing
`to bring contract claims). Courts routinely deny discovery—expedited or otherwise—where the
`party seeking discovery does not have standing. See, e.g., Soto v. Castlerock Farm. & Transp., Inc.,
`282 F.R.D. 492, 503 (E.D. Cal. 2012) (denying discovery because plaintiff lacked standing); Sladek
`v. City of Colo. Springs, 2013 WL 5526582, at *2 (D. Colo. Oct. 7, 2013) (“Standing is a threshold
`requirement” and “stay of discovery is … appropriate until the standing issue is resolved.”).
`Plaintiff lacks standing to pursue claims under the Merger Agreement. Under applicable
`Delaware law, “only parties to a contract and intended third-party beneficiaries may enforce an
`agreement’s provisions.” NAMA Holdings, LLC v. Related World Mkt. Ctr., LLC, 922 A.2d 417,
`434 (Del. Ch. 2007). Plaintiff is not a party to the Merger Agreement. Nor is Plaintiff a third-party
`beneficiary. Plaintiff has not alleged that he is a third-party beneficiary, and the “No Third Party
`
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`Beneficiaries” provision states that the Merger Agreement “is not intended to and shall not confer
`upon any Person other than the parties hereto any rights or remedies.” 2 Ex. 1 § 9.7.
`In limited circumstances, a shareholder may enforce a right to payment due to them under
`a merger agreement, but a shareholder has no standing to enforce such a right until all conditions to
`closing are satisfied and their shares actually convert to a right to payment. See Tooley v. Donaldson,
`Lufkin & Jenrette, Inc., 845 A.2d 1031, 1035 (Del. 2004) (shareholders’ contractual right to payment
`did not ripen until all conditions to closing were satisfied and “their tendered shares were accepted
`for payment.”). Here, the parties are not at that stage. For example, a shareholder vote has not yet
`been held on the merger, and Plaintiff’s shares have not yet converted to a right to payment under
`the process laid out in the Merger Agreement. See Ex. 1 §§ 2.3, 3.1(c) (Twitter shares “shall be
`converted into the right to receive $54.20 per share” at the time “the Certificate of Merger has been
`duly filed” or “such other date and time as may be agreed” by the parties and “as set forth in the
`Certificate of Merger.”).
`This outcome makes sense. Twitter has nearly 800 million shares of outstanding common
`stock held by thousands of stockholders. If they all had standing to enforce the Merger Agreement
`before closing, any one of them could hijack Twitter’s control over the agreement to pursue a
`preferred outcome, take positions opposite to Twitter, and seek inconsistent relief, even though
`shareholders have no rights under the agreement other than a right to payment upon closing.
`III. The Motion should be denied because Plaintiff filed suit in the wrong forum.
`The Court should also deny the Motion because the suit does not belong here. The Merger
`Agreement’s forum selection provision requires all actions relating to the Merger Agreement be
`brought in Delaware state or federal court. Plaintiff is bound by the forum selection provision as a
`non-signatory because his claim to enforce the Merger Agreement is “so closely related to the
`contractual relationship that the forum selection clause applies[.]” Manetti-Farrow, Inc. v. Gucci
`Am., Inc., 858 F.2d 509, 514 n. 5 (9th Cir. 1988). Likewise, Plaintiff would be bound by the forum
`
`
`2 There is a limited exception to the “No Third Party Beneficiaries” provision that states: “[T]he Company Related
`Parties (with respect to Section 8.3) are third-party beneficiaries.” The term “Company Related Parties” includes Twitter
`shareholders. Under Section 8.3(c), the Musk Defendants cannot seek damages from Company Related Parties in the
`event Twitter breaches the Merger Agreement. Section 8.3 does not extend any other right to Company Related Parties.
`OPP. TO MOT. TO EXPEDITE AND COORDINATE DISCOVERY
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`selection provision if he claims third-party beneficiary status because a forum selection clause
`“restrict[s] a third-party beneficiary to the designated forum.” TAAG Linhas Aereas de Angola v.
`Transam. Airlines, Inc., 915 F. 2d 1351, 1354 (9th Cir. 1990); accord Hadley v. Shaffer, 2003 WL
`21960406, at *6 (D. Del. Aug. 12, 2003) (Delaware law does not allow a third-party beneficiary to
`“avoid[] the burdens or limitations of … a forum selection clause.”). Finally, Plaintiff is bound under
`a direct benefits estoppel theory because he “seeks to enforce terms of the contract [and] asserts
`claims that must be determined by reference to that contract.” Walters v. Famous Transp., Inc., 488
`F. Supp. 3d 930, 936 (N.D. Cal. 2020). Plaintiff cannot avoid the forum provision while attempting
`to enforce other parts of the Merger Agreement.
`Whatever the applicable theory, Twitter expects to seek transfer of this action by motion in
`the alternative to dismissal. The Court would be obliged to grant the motion “unless extraordinary
`circumstances unrelated to the convenience of the parties clearly disfavor a transfer.” Atl. Marine
`Constr. Co. v. U.S. Dist. Ct., 571 U.S. 49, 52 (2013). Accordingly, any request for expedited
`discovery should be decided and managed by the court to which the case will be transferred. See
`Roe v. Gray, 165 F. Supp. 2d 1164, 1177 (D. Colo. 2001) (finding expedited discovery should be
`addressed by the court assigned the case after transfer). Courts routinely deny discovery—expedited
`or otherwise—where forum selection clauses require that the suit have been brought in another
`forum. See Huang, 2018 WL 1993503, at *4 (staying discovery pending motion to transfer); Huene
`v. U.S. Dep’t of Treas., 2013 WL 417747, *7 (E.D. Cal. Jan. 31, 2013) (“situations warranting a
`stay of discovery are those with preliminary issues of jurisdiction [and] venue”).
`Plaintiff did not file this case in the appropriate forum or transfer it after being confronted
`with the forum selection provision in the Merger Agreement. Having failed to do so, Plaintiff cannot
`seek expedited and coordinated discovery, particularly where the discovery sought is from the very
`forum that Plaintiff sought to circumvent. Nor can Plaintiff be heard to complain of any ensuing
`delay, as any such delay will have been caused by his own doing.
`IV.
`The Motion should be denied because Plaintiff cannot establish “good cause.”
`Plaintiff cannot show “good cause” to justify expedition or coordination of discovery.
`“While courts often find good cause when confronted with a pending motion for preliminary
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`OPP. TO MOT. TO EXPEDITE AND COORDINATE DISCOVERY
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`injunction, they usually do not when presented with a party’s mere inclination to file such a motion.”
`Facebook, 2011 WL 2437433, at *3 (internal citation omitted); see also Qwest Commc’ns Int’l, Inc.
`v. Worldquest Networks, Inc., 213 F.R.D. 418, 420 (D. Colo. 2003) (denying expedited discovery
`where there was no pending motion for preliminary injunctive relief). That is precisely the case here.
`Plaintiff references an “anticipated motions for declaratory and injunctive relief,” Mot. at 2, as
`justification for expedited discovery, but has not actually moved for such relief or described in any
`detail what the anticipated motion entails, when he will file it, or how the requested relief will differ
`from the relief Twitter seeks in Delaware.3 The Motion also does not identify any prejudice to
`Plaintiff absent expedition and coordination. Plaintiff claims that “failing to coordinate discovery
`… will potentially prevent Plaintiff from seeking declaratory and injunctive relief before the Merger
`closes.