Case 2:22-cv-00269-JHC Document 33 Filed 08/08/22 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`JACINDA DORIAN, individually and on
`behalf of all others similarly situated,
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`Plaintiff,
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`CASE NO. 2:22-cv-00269
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`ORDER DENYING DEFENDANT’S
`MOTION TO STAY DISCOVERY
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`v.
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`AMAZON WEB SERVICES, INC.,
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`Defendant.
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`I.
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`INTRODUCTION
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`This matter comes before the Court on Defendant Amazon Web Services Inc.’s (“AWS”)
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`Motion to Stay Discovery. Dkt # 29. Plaintiff Jacinda Dorian opposes the motion. See Dkt.
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`# 31. Having reviewed the filings in support of and in opposition to the motion, the file herein,
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`and the applicable law, the Court DENIES the motion.
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`ORDER DENYING DEFENDANT’S
`MOTION TO STAY DISCOVERY - 1
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`Case 2:22-cv-00269-JHC Document 33 Filed 08/08/22 Page 2 of 7
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`II.
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`BACKGROUND
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`Plaintiff Jacinda Dorian is an Illinois resident who took multiple remote tests while
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`attending two colleges in Illinois. Dkt. # 1 at ¶¶ 37–38. Both colleges used a proctoring
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`software developed by ProctorU, Inc. to administer the tests. Id. at ¶ 38. The ProctorU software
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`required Plaintiff to submit her image as well as an image of a valid identification document. Id
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`at ¶ 39. ProctorU then used AWS’s facial recognition program Rekognition to analyze and
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`compare Plaintiff’s images to verify her identity. Id at ¶ 40. Plaintiff alleges that AWS violated
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`section 15(a) and 15(b) of the Illinois Biometric Information Privacy Act (“BIPA”) by
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`possessing her biometric data without publishing a “publicly-available retention and deletion
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`schedule,” and collecting the same data without providing adequate notice and obtaining her
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`consent. Id. at ¶¶ 41–43. Plaintiff asserts claims on behalf of herself and a putative class defined
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`as “[a]ll Illinois residents who had their biometric information or biometric identifiers collected,
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`captured, received, possessed, or otherwise obtained by Amazon’s Rekognition service and
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`stored in AWS’s servers.” Id. at ¶ 44.
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`Defendant filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) and
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`Motion to Strike Class Allegations under Rule 12(f) on May 16, 2022. Dkt. # 21. Plaintiff
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`responded to the motion on July 6, 2022. Dkt. # 27. Defendant then filed a Motion to Stay
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`Discovery on July 12, 2022. Dkt. # 29.
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`III.
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`ANALYSIS
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`AWS seeks a stay of discovery until after this Court rules on its motion to dismiss (Dkt. #
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`21) and/or until the Northern District of Alabama resolves Thakkar v. ProctorU, Inc. No. 2:21-
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`cv-01565-NAD (N. D. Ala.), a case it argues “overlaps substantially” with this case. Dkt. # 29.
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`ORDER DENYING DEFENDANT’S
`MOTION TO STAY DISCOVERY - 2
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`Case 2:22-cv-00269-JHC Document 33 Filed 08/08/22 Page 3 of 7
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`In the alternative, it requests that the Court stay discovery until after discovery is complete in
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`Thakkar or until after the Thakkar court rules on ProctorU’s motion to dismiss. Id. For the
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`reasons below, the Court declines to exercise its discretion to grant a stay of discovery on either
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`of these bases.
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`A. The Court Declines to Stay Discovery Based on Defendant’s Pending Motion to Dismiss.
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`District courts have broad discretion to stay discovery pending resolution of potentially
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`dispositive motions. See Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). However,
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`“[a] pending motion to dismiss is generally not grounds for staying discovery.” See Edmonds v.
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`Amazon.com, Inc., No. C19-1613JLR, 2020 WL 8996835, at *1 (W.D. Wash. Mar. 6, 2020); see
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`also Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. Cal. 1990) (“Had the Federal Rules
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`contemplated that a motion to dismiss under Fed[eral] R[ule of] Civ[il] P[rocedure] 12(b)(6)
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`would stay discovery, the Rules would contain a provision to that effect.”). In deciding whether
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`to impose a stay pending disposition of a motion, courts consider (1) whether the pending motion
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`would dispose of the entire case, and (2) “whether the pending motion can be decided without
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`additional discovery.” See Roberts v. Khounphixay, No. C18-0746-MJP-BAT, 2018 WL
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`5013780, at *1 (W.D. Wash. Oct. 16, 2018) (citing Ministerio Roca Solida v. U.S. Dep’t of Fish
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`& Wildlife, 288 F.R.D. 500, 503 (D. Nev. 2013)). “In applying this test, courts take a
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`preliminary peek at the merits of the dispositive motion to assess whether a stay is warranted.”
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`Id.; see also Zeiger v. Hotel California by the Sea LLC, No. C21-1702-TL-SKV, 2022 WL
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`1499670, at *2 (W.D. Wash. May 12, 2022). “The ‘preliminary peek,’ however, is not intended
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`to prejudge the outcome of the motion.” Id.
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`The Court cannot say—after taking a “preliminary peek”—that a stay is warranted in this
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`case. First, in such a situation, courts in this jurisdiction typically stay discovery only when the
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`dispositive motion in question raises preliminary “threshold” issues that may preclude a court
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`ORDER DENYING DEFENDANT’S
`MOTION TO STAY DISCOVERY - 3
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`Case 2:22-cv-00269-JHC Document 33 Filed 08/08/22 Page 4 of 7
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`from reaching the merits of a claim. See, e.g., Jeter v. President of the United States, 670
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`F.App'x 493, 494 (9th Cir. 2016) (jurisdiction); Little, 863 F.2d at 685 (immunity of a
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`defendant); Zeiger, 2022 WL 1499670, at *2 (enforceability of an arbitration clause); Ahern
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`Rentals Inc. v. Mendenhall, No. C20-0542-JCC, 2020 WL 8678084, at *1 (W.D. Wash. July 9,
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`2020) (venue). AWS’s motion to dismiss (Dkt. # 21)—which includes arguments regarding the
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`scope of BIPA as it relates to “back-end service providers,” the legal definitions of several terms
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`of the Act such as “collect” and “possess,” and the applicability of the Illinois extraterritoriality
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`doctrine and the Constitution’s Dormant Commerce Clause—does not present such threshold
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`issues. See generally Dkt. # 21.
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`Further, several of Plaintiff’s arguments, as well as AWS’s defenses, appear to require
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`fact-based analyses that discovery would inform. C.f. Alaska Cargo Transp., Inc. v. Alaska R.R.
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`Corp., 5 F.3d 378, 383 (9th Cir. 1993) (finding that the district court would have abused its
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`discretion in staying discovery if the discovery was relevant to whether the court had subject
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`matter jurisdiction). For example, the parties dispute whether Plaintiff’s claims violate the
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`extraterritoriality doctrine, which implicates the factual question of whether Defendant’s alleged
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`violations occurred primarily and substantially in Illinois. Dkt. # 21 at 21–23; Dkt # 27 at 14–19.
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`Similarly, AWS’s Dormant Commerce Clause argument also hinges on the location of the
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`alleged violations. Dkt. # 21 at 24; Dkt. # 27 at 19–20. Additional information regarding the
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`methods and technology AWS uses in its Rekognition software would inform both these
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`questions. Accordingly, the Court cannot say at this point that “the pending motion can be
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`decided without additional discovery.” See Roberts, 2018 WL 5013780, at *1.
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`Lastly, the Court is not convinced that Defendant’s Motion to Dismiss will prevail and,
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`accordingly, dispose of the case. The Court notes that numerous actions have been filed in this
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`district and others challenging the collection of biometric information under BIPA, and the
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`ORDER DENYING DEFENDANT’S
`MOTION TO STAY DISCOVERY - 4
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`Case 2:22-cv-00269-JHC Document 33 Filed 08/08/22 Page 5 of 7
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`defendants in those cases made similar arguments at the motion to dismiss phase that were
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`rejected by the court. See, e.g., Vance v. Amazon.com, Inc., 525 F.Supp.3d 1301 (W.D. Wash.
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`Mar. 15, 2021) (rejecting defendant’s arguments regarding extraterritoriality, the Dormant
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`Commerce Clause, and the definition of “collect” under § 15(b) at the motion to dismiss phase,
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`and explaining that dismissal without more information regarding how the defendant obtained,
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`stored, or used biometric data would be inappropriate); Vance v. Microsoft Corp., 525 F.Supp.3d
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`1287, 1294 (W.D. Wash. 2021) (same); see also Monroy v. Shutterfly, Inc., No. 16 C 10984,
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`2017 WL 4099846, at *6 (N.D. Ill. Sept. 15, 2017); Vance v. Int'l Bus. Machines Corp., No. 20 C
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`577, 2020 WL 5530134, at *6 (N.D. Ill. Sept. 15, 2020). Although the Court’s preliminary look
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`is not intended to prejudice the outcome of the motion, the actions of other federal district courts
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`in similar actions at the motion to dismiss phase are instructive. Accordingly, the Court declines
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`to exercise its discretion to stay discovery based on AWS’s pending motion to dismiss.1
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`B. The Court Declines to Stay Discovery Based on Thakkar.
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`Although district courts have discretionary power to stay proceedings pending the
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`outcome of parallel proceedings in another district court under Landis v. N. Am. Co., 299 U.S.
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`248, 254 (1936), “[o]nly in rare circumstances will a litigant in one cause be compelled to stand
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`aside while a litigant in another settles the rule of law that will define the rights of both.” Id. at
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`255.2 In determining whether such a stay is appropriate, “the competing interests which will be
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`1 The Court notes that AWS includes a Motion to Strike Class Allegations Under Rule
`12(f) along with their motion to dismiss. Dkt # 21 at 28. The request to strike the class
`allegations appears premature at this stage of the proceedings. Generally, the Court reviews
`class allegations through a motion for class certification. See Hoffman v. Hearing Help Express,
`Inc., No. 3:19-CV-05960-RBL, 2020 WL 4729176, at *2 (W.D. Wash. Mar. 27, 2020). Further,
`the shape and form of a class action typically evolves through the process of discovery. Id.
`2 The Landis line of cases typically applies to stays of proceedings, and here Defendant
`seeks a stay of discovery. However, the practical effect of staying discovery—a potential delay
`in litigation—is similar to the effect of staying proceedings and thus the logic of these cases
`applies.
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`ORDER DENYING DEFENDANT’S
`MOTION TO STAY DISCOVERY - 5
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`Case 2:22-cv-00269-JHC Document 33 Filed 08/08/22 Page 6 of 7
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`affected by the granting or refusal to grant a stay must be weighed.” Lockyer v. Mirant Corp.,
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`398 F.3d 1098, 1110 (9th Cir. 2005). Those interests include: (1) “the possible damage which
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`may result from the granting of a stay,” (2) “the hardship or inequity which a party may suffer in
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`being required to go forward,” and (3) “the orderly course of justice measured in terms of the
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`simplifying or complicating of issues, proof, and questions of law which could be expected to
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`result from a stay.” Id.
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`The Court finds that the Lockyer factors weigh in favor of denying Defendant’s motion.
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`With respect to the first factor, the Court notes that Plaintiff seeks injunctive and equitable relief
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`as necessary to protect their interests and the interests of the putative class. Dkt. # 1 at 15–17.
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`Thus, there is a fair possibility that a delay in litigation will cause them harm. See Lockyer, 398
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`F.3d at 1112 (distinguishing between lawsuits that allege only damages and those that allege
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`continuing harm and seek injunctive or declaratory relief, finding that the latter present a clearer
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`possibility of harm in the event of a stay). With respect to the second factor, Defendant has not
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`explained why they would be prejudiced if this Court denies their motion to stay, beyond general
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`references to the financial burden of participating in discovery in this case while simultaneously
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`participating in discovery in Thakkar as a non-party. However, “being required to defend a suit,
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`without more, does not constitute a ‘clear case of hardship or inequity’ within the meaning of
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`Landis.” Lockyer, 398 F.3d at 1112. Further, if there are indeed similar discovery requests in
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`Thakkar and this case, AWS and ProctorU may share information or subpoena each other to
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`minimize duplicative work. Lastly, Defendant does not convincingly argue that the proceedings
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`in Thakkar will narrow or clarify the questions at issue in this action. While the Thakkar case
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`may be factually related, it involves different parties, a narrower class, and only somewhat
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`overlapping legal issues at this stage in the litigation. See generally Dkt. ## 30–1, 30–2, 30–3.
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`Indeed, much of AWS’s motion to dismiss relies on the argument that it provided only “behind-
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`ORDER DENYING DEFENDANT’S
`MOTION TO STAY DISCOVERY - 6
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`Case 2:22-cv-00269-JHC Document 33 Filed 08/08/22 Page 7 of 7
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`the-scenes” cloud services to ProctorU, and that ProctorU was the party that “possessed” or
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`“collected” Plaintiff’s data within the meaning of BIPA. See Dkt. # 21 at 6–21. These
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`statements cut against their argument that the cases substantially overlap, since clearly this case
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`implicates a distinct theory of liability from Thakkar. Thus, the Court is not convinced that
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`staying discovery pending a resolution in Thakkar would advance the “orderly course of justice”
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`by “simplifying . . . issues, proof, and questions of law.” Lockyer, 398 F.3d at 1110.
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`IV.
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`CONCLUSION
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`For the reasons above, the Court DENIES Defendant’s Motion to Stay Discovery.
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`Dated this 8th day of August, 2022.
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`John H. Chun
`United States District Judge
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`ORDER DENYING DEFENDANT’S
`MOTION TO STAY DISCOVERY - 7
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