The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6 SAN JOSE DIVISION
7
BRANDON MOLANDER,
8 Case No. 5:20-cv-00918-EJD
Plaintiff,
9 ORDER GRANTING DEFENDANT’S
10 v. MOTION TO STAY
GOOGLE LLC, Re: Dkt. No. 35
1]
Defendant.
13 Before the Court is Defendant Google’s motion to dismiss, transfer, or stay. Having
14 || considered the Parties’ papers, the Court GRANTS Defendant’s motion to stay.
©
15 I. BACKGROUND
16 Plaintiff (as part of the same putative class) has already litigated the claims asserted in this
17 || action. Plaintiff is represented by Ahdoot & Wolfson, PC and Carey Rodriguez Milian Gonya
18 || LLP (“AWCR”). More than four years ago, AWCR began filing a series of lawsuits alleging that
19 || Defendant violated the Illinois Biometric Information Privacy Act (“BIPA”) in connection with
20 || Google Photos service. In March 2016, AWCR filed two cases in the Northern District of
21 Illinois—Rivera v. Google LLC, No. 1:16-cv-02714 and Weiss v. Google Inc., No. 1:16-cv-2870.
22 || Those cases were consolidated (the “Rivera Federal Action”). In the Rivera Federal Action, the
23 || plaintiffs alleged that Google Photos, a service that allows users to store and organize their digital
24 || photos, collected and stored their biometric data in violation of BIPA. Like Plaintiff, the Rivera
25 || plaintiffs sought to represent a class of persons “who had their biometric identifiers, including
26
27 ' Pursuant to N.D. Cal. Civ. L.R. 7-1(b), this Court finds this motion suitable for consideration
without oral argument.
28 Case No.: 5:20-cv-00918-EJD
ORDER GRANTING DEFENDANT’S MOTION TO STAY
1 scans of face geometry, collected, captured, received, or otherwise obtained by Google from
2 || photographs uploaded within the state of Illinois.” See Declaration of Sunita Bali in Support of
3 || Google LLC’s Motion to Dismiss (“Bali Decl.”), Ex. A, Dkt. 35-2 (comparing complaints). Also,
4 || like Plaintiff, the Rivera plaintiffs sought statutory damages, equitable relief, and attorneys’ fees
5 and costs. Jd.
6 The Rivera Federal Action was extensively litigated. Google first moved to dismiss the
7 || Rivera Federal Action on statutory and constitutional grounds. In a 30-page opinion, the district
8 court (Hon. Edmond E. Chang) denied Google’s motion to dismiss. Rivera v. Google Inc.
9 || (“Google P), 238 F. Supp. 3d 1088 (ND. Ill. 2017). The parties then embarked on 11 months of
10 || intensive fact discovery closely supervised by Judge Chang, which included more than 150 written
11 discovery requests, the exchange of more than 300,000 pages of documents, and the depositions of
12 || multiple individuals and corporate representatives on highly technical topics related to the
13 || operation of Google Photos and the feasibility of limiting features by geographic region to comply
14 || with BIPA. See Bali Decl. § 3. More than two years after the Rivera Federal Action was filed,
3 15 fact discovery closed. Thereafter, on December 27, 2018, Judge Chang granted Defendant
16 || Google’s motion for summary judgment on the ground that the plaintiffs could not show they
3 17 || suffered an injury-in-fact sufficient to confer Article III standing. Rivera v. Google Inc. (“Google
18 || 7), 366 F. Supp. 3d 998 (N.D. IIL 2018). The plaintiffs subsequently appealed Judge Chang’s
19 || Article Il ruling to the Seventh Circuit Court of Appeals. Defendant Google cross-appealed,
20 || arguing that the case should be dismissed because plaintiffs failed to state a claim upon which
21 relief could be granted. Both appeals remain pending. See Rivera v. Google LLC, No. 19-1182
22 || (7th Cir.).
23 On May 24, 2019—just a few months after appealing Judge Chang’s decision to the
24 Seventh Circuit—A WCR filed Rivera v. Google LLC, No. 2019-CH-00990 (II. Cir. Court, Cook
25 Cty.) (the “Rivera State Action’) in Illinois state court. The named plaintiff in the Rivera State
26 || Action is the same as the Rivera Federal Action, and the claims alleged are the same. See Bali
27 || Decl., Ex. A. Due to the duplication, the Illinois court stayed the Rivera State Action. AWCR
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ORDER GRANTING DEFENDANT’S MOTION TO STAY
1 then filed another action in Illinois state court on September 26, 2019. See Azzano v. Google,
2 || LLC, No. 2019-CH-11153 (IL. Cir. Court, Cook Cty.) (“Azzano”). While the named plaintiff is
3 different, like the two Rivera actions, the Azzano action raises the same claims, based on the same
4 || subject matter, against the same defendant. Indeed, the Azzano plaintiffs are members of the
5 || putative class alleged in the Rivera Federal and State Actions. See Bali Decl., Ex. A. Azzano was
6 || deemed “related” and transferred to the judge presiding over the Rivera State Action, who again
7 || stayed the case. Both the Rivera State Action and Azzano remain stayed.
8 Not long after their Illinois state court cases were stayed, AWCR filed the case at hand.
9 Like the Rivera Federal Action, the Rivera State Action, and Azzano, this case asserts the same
10 claims, based on the same facts, against the same defendant, and on behalf of the same putative
11 class. Id.; see also id., Ex. B (redline document comparing the consolidated complaint in the
12 || Rivera Federal Action and the complaint in this case). Specifically, Plaintiff alleges that
13 Defendant violated: (1) Section 14/15(b) of BIPA by collecting biometric identifiers and biometric
14 || information from photos uploaded by him and by others without first providing notice and
3 15 obtaining consent and (2) Section 14/15(a) of BIPA by possessing biometric identifiers and
16 || biometric information and by failing to publish a written policy for destroying such information.
3 17 || See Class Action Complaint (“Compl.”) 9] 29-35, 47-55. Based on these allegations, Plaintiff
18 seeks to represent a class of persons who had their “biometric identifiers” obtained by Defendant
19 || from photographs uploaded within the state of Illinois. /d. ¥ 36.
20 On June 18, 2020, Defendant filed a motion to dismiss, transfer, or stay the case based on
21 the first-to-file rule. Notice of Motion and Motion to Dismiss, Transfer, or Alternatively Stay
22 || (“Mot”), Dkt. 35. Plaintiff filed its opposition on July 6, 2020. Plaintiff's Opposition to Google’s
23 Motion to Dismiss (“Opp.”), Dkt. 39. Thereafter, Defendant filed its reply on July 16, 2020.
24 || Reply in Support of Google’s Motion to Dismiss (“Reply”), Dkt. 45.
25 Il. LEGAL STANDARD
26 The first-to-file rule is a “generally recognized doctrine of federal comity which permits a
27 || district court to decline jurisdiction over an action when a complaint involving the same parties
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ORDER GRANTING DEFENDANT’S MOTION TO STAY
1 and issues has already been filed in another district.” Pacesetter Sys., Inc. v. Medtronic, Inc., 678
2 || F.2d 93, 94-95 (9th Cir. 1982). The rule is meant to “avoid placing an unnecessary burden on the
3 federal judiciary, and to avoid the embarrassment of conflicting judgments,” and “should not be
4 || disregarded lightly.” Church of Scientology of Cal. v. U.S. Dep’t of Army, 611 F.2d 738, 750 (9th
5 Cir. 1979), overruled on other grounds by Animal Legal Def. Fund v. U.S. Food & Drug Admin.,
6 836 F.3d 987 (9th Cir. 2016). It provides that where substantially identical actions are proceeding
7 || in different courts, the court of the later-filed action should defer to the jurisdiction of the court of
8 || the first-filed action by either dismissing, staying, or transferring the later-filed suit.” SAES
9 Getters S.p.A. v. Aeronex, In., 219 F. Supp. 2d 1081, 1089 (S.D. Cal. 2002). The rule reflects the
10 |} common-sense proposition that “when two identical actions are filed in courts of concurrent
11 || jurisdiction, the court which first acquired jurisdiction should try the lawsuit.” Pacesetter Sys.,
12 678 F.2d at 95; Halo Elecs., Inc. v. Bel Fuse Inc., 2008 WL 1991094, at *2 (N.D. Cal. May 5,
13 |} 2008).
14 I. DISCUSSION
3 15 A. Applicability of the First-to-File Rules
a 16 Courts consider three factors in determining whether the first-to-file rule applies: (1) the
3 17 || chronology of the actions; (2) the similarity of the parties; and (3) the similarity of the issues. See
18 || Kohn Law Grp., Inc. v. Auto Parts Mfg. Miss., Inc., 787 F.3d 1237, 1240 (9th Cir. 2015). In this
19 || case, the factors weigh in favor of applying the first-to-file rule.
20 First, Defendant correctly argues that the Rivera Federal (and State) actions were filed
21 before this matter. MTD at 5-6. Plaintiff filed the Rivera Federal Action in March 2016. Four
22 years later, Plaintiff filed this action. Hence, the Northern District of Illinois (and the Illinois state
23 courts) had this matter first. See Gens v. SEZ Am., Inc., 2007 WL 832050, at *4 (N.D. Cal. Mar.
24 19, 2007) (“Because [Plaintiff] brought his unfair competition claim in state court nine months
25 || before he first asserted it here, this Court will apply the first-to-file rule”).
26 Second, Defendant again correctly argues that parties are sufficiently identical in the
27 || Rivera Federal Action and in this matter. MTD at 7. In each case, the defendant is Google and
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ORDER GRANTING DEFENDANT’S MOTION TO STAY
1 the putative classes are the same (which means the plaintiffs in each action are the same). See
2 || Pedro v. Millennium Prods., Inc., 2016 WL 3029681, at *3 (N.D. Cal. May 27, 2016) (“[T]he
3 || majority of district courts in the Ninth Circuit that have applied the first-to-file rule in the context
4 || of aclass action have compared the putative classes rather than the named plaintiffs.”’); see also
5 || Ford v. [24]7.ai, Inc., 2019 WL 570756, at *3 (N.D. Cal. Feb. 12, 2019) (“Courts in this district
6 || generally evaluate this factor by comparing the proposed putative classes rather than the individual
7 || class representatives.”), rev'd on other grounds by 2020 WL 4013927 (9th Cir. July 16, 2020).
8 || Here, the putative classes are identical: each includes people “who had their biometric identifiers,
9 || including scans of face geometry, collected, captured, received, or otherwise obtained by Google
10 || from photographs uploaded within the state of Illinois.” Compl. 36; see also Bali Decl., Ex. A.
11 Accordingly, the parties are sufficiently identical.
12 Third, the issues to be decided are identical. In both actions, members of the same putative
13 class are bringing the same BIPA claims, against the same defendant, based on the same facts,
14 || seeking the same relief. Bali Decl., Ex. A. Thus, the issues presented in each action are similar.
3 15 B. No Exceptions Apply to Remove this Matter from the First-to-File Rule
16 1. Subject-Matter Jurisdiction
3 17 Plaintiff argues that even while the above factors are met, the first-to-file rule is
18 inapplicable because courts in the Seventh Circuit (the place where the case was first-filed) lack
19 || subject-matter jurisdiction over part of Plaintiffs claims as pled. Opp. at 5—8. In order to clarify
20 || this argument, the Court briefly compares Seventh and Ninth Circuit BIPA law.
21 In Bryant v. Compass Group USA, Inc., the Seventh Circuit held that a plaintiff has
22 || standing to bring a claim under § 15(b) of BIPA, but not under § 15(a) of BIPA. 958 F.3d 617
23 (7th Cir. 2020). After taking the case en banc, the court clarified that its dismissal was “limited to
24 || the theory [the plaintiff] invoked.” /d. at 626. Under Bryant, a plaintiff may have standing to
25 || pursue a § 15(a) claim as long as they allege that the defendant (1) failed to publish a public
26 || retention and deletion policy and (2) failed to comply with BIPA’s “established retention schedule
27 || and destruction guidelines.” /d. (the plaintiff in Bryant [like Molander] alleged the first, but not
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ORDER GRANTING DEFENDANT’S MOTION TO STAY
1 || the second). In contrast, the Ninth Circuit has held that violations of § 15(a) are sufficiently
2 || concrete to satisfy the injury in fact requirement and has found Article III standing on that basis.
3 || Patel v. Facebook, Inc., 932 F.3d 1264, 1274 (9th Cir. 2019). Importantly, in Patel, the court did
4 || not address whether the injury was sufficiently particularized. /d. at 1271 n.5; see also Cothron v.
5 White Castle Sys., Inc., 2020 WL 3250706, at *3 n.2 (N.D. Ill. June 16, 2020) (“In reaching [the
6 || conclusion that the plaintiffs alleged a concrete injury-in-fact], the court explicitly did not consider
7 || whether the injury was sufficiently particularized.”).
8 “Although the first-to-file rule guides the district court’s exercise of discretion in handling
9 || related cases, the requirements of [28 U.S.C.] § 1404(a) cabin the exercise of that discretion.” Jn
10 || re Bozic, 888 F.3d 1048, 1054 (9th Cir. 2018); see also 28 U.S.C. § 1404(a) (‘[A] district court
1] may transfer any civil action to any other district or division where it might have been
12 || brought... (emphasis added)). Further, courts should not outright dismiss a second-filed action
13 if jurisdictional uncertainty over the second-filed action exists. Al/trade, Inc. v. Uniweld Prods.,
14 || Jnc., 946 F.2d 622, 628-29 (9th Cir. 1991). In Plaintiff’s view, because his § 15(a) claim (as
3 15 || plead) cannot be brought in the Seventh Circuit, the first-to-file rule is inapplicable. Opp. at 7.
16 There is a problem with Plaintiff’s argument.” There is nothing preventing the Rivera
3 17 || plaintiffs from amending their § 15(a) claim to accord with Bryant. Defendant has offered to
18 stipulate to remand the Rivera appeal to allow Judge Chang to reconsider his ruling in light of the
19 || recent Seventh Circuit caselaw addressing standing under BIPA. During this stipulated remand,
20 || the Rivera plaintiffs could amend their complaint. Additionally, Patel’s scope is unclear—it is
21 still possible that the Ninth Circuit could find, like the Bryant court, that § 15(a) violation based
22 || only on a company’s failure to publish a deletion policy is too generalized an injury to confer
23 standing. See Cothron, 2020 WL 3250706, at *3 n.2. Accordingly, the potential lack of subject-
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25 || * Defendant raises a second problem in its reply brief. Defendant argues that Jn re Bozic does not
require the other forum to have subject-matter jurisdiction. Reply at 5; but see Sporn v.
26 || TransUnion Interactive, Inc., 2019 WL 151575, at *6 (N.D. Cal. Jan. 10, 2019) (“The transferee
court meets this requirement if: (1) it would have subject-matter jurisdiction; (2) defendants would
27 || be subject to personal jurisdiction; and (3) venue would be proper.”). The Court need not resolve
this dispute and so it does not address Defendant’s subject-matter jurisdiction argument.
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ORDER GRANTING DEFENDANT’S MOTION TO STAY
1 matter jurisdiction does not present cause to avoid the first-to-file rule.
2 2. Applicability of the First-to-File Rule to Case on Appeal
3 Plaintiff next argues that the first-to-file rule should not apply because the first-filed case
4 || (the Rivera Federal Action) was dismissed. Opp. at 8-9. Courts often apply the first-to-file rule
5 || where, as here, the first-filed case has been dismissed and is pending on appeal and the appeal may
6 || resolve the very questions raised in the later-filed case (like whether BIPA applies to photos and
7 || information derived from photos and whether Plaintiff has standing to sue). See, e.g., Univ. of
8 || Pittsburgh of Commonwealth Sys. of Higher Educ. v. Varian Med. Sys., Inc., 2008 WL 4279704,
9 || at *3 (ND. Cal. Sept. 16, 2008) (“Tf UPitt prevails on its appeal and the dismissal is reversed,
10 || substantially identical claims will be pending simultaneously in the Northern District of California
1] and the Western District of Pennsylvania, with all the attendant risks of duplicative proceedings
12 || and conflicting rulings.”).
13 The cases cited by Plaintiff are unpersuasive; they bear little or no resemblance to this
14 case. For instance, in ASUSTeK Computer Inc. v. AFTG-TG LLC, where this Court declined to
3 15 stay the case pending a related appeal, the first-filed action was dismissed just four months (on
16 || personal jurisdiction grounds) after it was filed. Staying the case did not serve the principles of
3 17 || “judicial efficiency, judicial comity, and sound judicial administration” because the outcome of
18 || the appeal, which addressed only the plaintiffs contacts with the forum, would have had little
19 || impact on the latter-filed case. 2011 WL 6845791, at *2 (N.D. Cal. Dec. 29, 2011). Here, in
20 || contrast, failure to apply the first-to-file rule would squander the four years of earlier litigation and
21 || would force this Court to duplicate Judge Chang’s work, all while risking conflicting judgments.
22 || The principles behind first-to-file thus counsel towards either dismissing, transferring, or staying
23 || the case at hand. See Carrera v. First Am. Home Buyers Prot. Co., 2012 WL 13012698, at *3
24 || (C.D. Cal. Jan. 24, 2012) (‘[T]he same policy concerns for avoiding duplicative litigation and
25 comity exist when a similar matter is pending in a federal district court and a federal court of
26 || appeals in a different circuit.”). It is thus of no consequence that the Rivera Federal Action is on
27 || appeal.
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ORDER GRANTING DEFENDANT’S MOTION TO STAY
1 3. Forum Selection Clause*
2 Finally, Plaintiff argues that Defendant’s forum selection clause applies and prevents the
3 Court from using the first-to-file rule. The Court disagrees. The cases on which Plaintiff relies
4 || are easily differentiated from the case at hand. Each case involved attempts by a party to
5 circumvent a forum selection clause by filing first in another district. See, e.g., Universal
6 Operations Risk Mgmt., LLC v. Glob. Rescue LLC, 2012 WL 2792444, at *6 (N.D. Cal. July 9,
7 || 2012) (declining to apply first-to-file rule where the proponent of the rule brought the first-filed
8 case in an improper jurisdiction because doing so “would encourage parties to rush to the
9 || courthouse to file lawsuits for the purpose of circumventing their agreed-upon promises” and
10 || “sanction forum shopping”); see also E. & J. Gallo Winery v. Andina Licores S.A., 446 F.3d 984,
11 994 (9th Cir. 2006) (same). As noted, Defendant did not bring this action. Hence, this is not a
12 || situation where a party is attempting to avoid a forum-selection clause by first-filing an action in a
.
13 “more favorable” district.
14 Moreover, unlike the cases on which Plaintiff relies, the first-filed case (i.e., the Rivera
©
3 15 || Federal Action) has been extensively litigated. The very purposes behind the first-to-file rule are
QO 16 || thus at their height. Accordingly, the forum selection clause does not prevent this Court from
17 || exercising its discretion to stay this case pursuant to the first-to-file rule.
18 C. Staying the Case is the Appropriate Remedy
19 Dismissal is proper where the court of first filing provides adequate remedies. Al/trade,
20 || 946 F.2d at 627-28. If there are concerns regarding the availability of remedies in the court of
21 first filing, or regarding its jurisdiction over claims which might implicate a statute of limitations
22 || if dismissed by that court, or if that court is preparing to transfer its matter to the court of second
23
244 3g. a,
Plaintiff also accuses Defendant of “forum shopping” by trying to have this suit dismissed on
25 || first-to-file grounds. This is peculiar. Defendant did not file this second action and Defendant has
already extensively litigated this action. It thus makes sense that Defendant wants to use the first-
26 || to-file rule to avoid duplicative litigation and potential incongruent outcomes, which could expose
Defendant to increased liability. See Cardoza v. T-Mobile USA Inc., 2009 WL 723843, at *3
27 || (N.D. Cal. Mar. 18, 2009) (“T-Mobile is the defendant in both this action and [an earlier case], so
the Court has trouble understanding how T-Mobile could be accused of forum shopping.”).
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ORDER GRANTING DEFENDANT’S MOTION TO STAY
1 filing, then the court of second filing should consider a stay. Jd. at 627-29. As noted, it could be
2 || possible for Plaintiff to obtain standing on his § 15(a) claim in N.D. Illinois. However, out of an
3 abundance of caution, the Court will STAY this action pending the resolution of the Rivera
4 || Federal Action. It seems likely that the results of the Rivera appeal and its resolution on remand
5 (either stipulated to or following appellate relief) will resolve many of the issues in this action.
6 || Hence, in the interests of judicial comity, a stay is appropriate.
7 IV. CONCLUSION
8 For the above reasons, the case is STAYED pending resolution of the Rivera Federal
9 || Action. The Parties shall file a joint statement every six months updating the Court on the
10 || progress of the case. The Clerk shall administratively close the file.
11 IT IS SO ORDERED.
12 || Dated: July 22, 2020
2B
EDWARD J. DAVILA
14 United States District Judge
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ORDER GRANTING DEFENDANT’S MOTION TO STAY