The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:21-CV-00602-RGJ-CHL
THOMAS WRIGHT, Plaintiff,
v.
GOOGLE, LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is the Motion to Stay Lawsuit Pending Limited Discovery on Execution
of Binding Arbitration Agreement filed by Defendant Google, LLC (“Google”). (DN 8.) Plaintiff
Thomas Wright (“Plaintiff”) has filed a response (DN 22), to which Google filed a reply (DN 31).
Therefore, the motion is ripe for review.
I. BACKGROUND
On August 25, 2021, Plaintiff filed this action in the circuit court for Jefferson County, and
on September 24, 2021, the case was removed to this Court. (DN 1; DN 1-1.) Plaintiff alleges
that he was injured due to a defect in his Pixel 4 XL smartphone and brings claims for negligence
and strict liability against all defendants as well as breach of warranty and state consumer
protection claims against Google. (DN 1-1, at PageID # 11, 14–37.) On October 4, 2021,
Defendants Cellular Sales of Kentucky, LLC and Cellular Sales of Knoxville, Inc. moved to
compel arbitration. (DN 5.) On October 15, 2021, Google filed the instant motion, which seeks a
stay this case pending limited discovery to determine whether Plaintiff entered into a binding
arbitration agreement covering his claims against Google. (DN 8.)
Google states that the Pixel 4 XL smartphone setup process requires users to accept an
arbitration agreement and allows them to opt out of the agreement through an optional procedure.
(Id. at PageID # 122.) Google seeks discovery “related to certain identifying information Google
needs in order to confirm Plaintiff went through the Pixel 4 XL setup process (which would have
included acceptance of the agreement to arbitrate) and did not thereafter exercise his right to opt
out under the applicable terms of the agreement.” (DN 8-1, at PageID # 130.) Google states that
such discovery “includes, but is not limited to: usernames, serial numbers, email addresses,
registration information, account numbers, receipts, and other identifying information related to
Plaintiff and the purchase of his device.” (Id.)
In response, Plaintiff states that he “opposes the blanket stay of the entire matter but would
agree to provide Google 30 days from the Court’s determination of the subject motion to seek the
information outlined in its motion prior to seeking any discovery from that defendant and another
30 days to file whatever motion it deems appropriate following that discovery period.” (DN 22,
at PageID # 168–69.) In reply, Google asserts that “thirty days does not account for any
unanticipated delays the parties may encounter in limited discovery.” (DN 31, at PageID # 225.)
It thus “suggests sixty (60) days to conduct its limited discovery, and an additional fourteen (14)
days thereafter within which to bring a motion to enforce its rights under any applicable arbitration
provision.” (Id.) Google also opposes Plaintiff’s proposal that the stay be limited to discovery
from Google, which it argues “ignores the prejudicial and preclusive effects such a procedural
maneuver may have on Google, as well as the Court’s interests in judicial economy.” (Id.)
II. LEGAL STANDARD
It is “well established that the scope of discovery is within the sound discretion of the trial
court.” Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981). This includes
“broad discretion and inherent power to stay discovery until preliminary questions that may
dispose of the case are determined.” Hahn v. Star Bank, 190 F.3d 708, 719 (6th Cir. 1999). In
assessing whether to stay discovery otherwise permitted under Rule 26 of the Federal Rules of
Civil Procedure, courts must consider “the burden of proceeding with discovery upon the party
from whom discovery is sought against the hardship which would be worked by a denial of
discovery.” Baker v. Swift Pork Co., No. 3:15-CV-663-JHM, 2015 WL 6964702, at *1 (W.D. Ky.
Nov. 10, 2015) (citations omitted). Generally, “the filing of a case dispositive motion is
insufficient to warrant a stay of discovery.” Brown v. Danson Inc., No. 1:11-cv-820, 2012 WL
3600100, at *2 (S.D. Ohio Aug. 21, 2012); see also Baker, 2015 WL 6964702, at *2-3.
III. DISCUSSION
As an initial matter, the Court addresses Google’s assertion that a stay is mandatory. (See
DN 8-1, at PageID # 130.) Google cites to Stanton Health Facilities LP et al. v. Fletcher, 454
S.W.3d 312 (Ky. App. 2015) as requiring a stay “while the parties engage in limited discovery
regarding the Plaintiff’s execution of the arbitration agreement.” (Id.) In Stanton the court
reviewed a trial court’s order deferring a ruling on a motion to compel arbitration and allowing the
parties to proceed to pretrial discovery. 454 S.W.3d at 314. The court noted that “[t]he plain
language of KRS 417.060 directs that a trial court ‘shall proceed summarily’ to the determination
of a motion to compel arbitration. KRS 417.060(4) requires a trial court to stay ‘[a]ny action or
proceeding’ pending the determination of a motion to compel arbitration.” Id. at 315. The court
therefore found “that the trial court erred by allowing discovery to proceed on the merits of the
underlying claim while the motion to compel arbitration was pending.” Id. Here, even assuming
that a decision by the Kentucky Court of Appeals was binding on this Court’s disposition of the
instant motion, Stanton does not apply because Google has not filed a motion to compel arbitration.
Google has not cited any authority that mandates a stay under these circumstances. That said, the
reasoning relied upon in Stanton is not irrelevant to the Court’s balancing of the relevant burdens
and hardships.
Courts recognize a strong presumption in favor of arbitration. Huffman v. Hilltop Cos.,
LLC, 747 F.3d 391, 396 (6th Cir. 2014). If Google prevails in compelling arbitration, it will be on
a showing of its “right not to litigate the dispute in a court and bear the associated burdens.” Blinco
v. Green Tree Servicing, LLC, 366 F.3d 1249, 1252 (11th Cir. 2004). The Fourth Circuit has aptly
described those burdens:
[A]llowing discovery to proceed could alter the nature of the dispute
significantly by requiring parties to disclose sensitive information
that could have a bearing on the resolution of the matter. If we later
hold that the claims were indeed subject to mandatory arbitration,
the parties will not be able to unring any bell rung by discovery, and
they will be forced to endure the consequences of litigation
discovery in the arbitration process.
Levin v. Alms & Associates, Inc., 634 F.3d 260, 265 (4th Cir. 2011).
Here, the limited stay will allow Google to explore the arbitrability of Plaintiff’s claims
against it, while denying the stay and requiring Google “to proceed to defend an action in [federal]
court would destroy the contractual right to arbitration.” Stanton, 454 S.W.3d at 314.
On the other hand, the Court sees little basis for a finding that a limited stay would prejudice
Plaintiff. The only grounds for his objection to Google’s request is that he “entitled to discover
facts and documents related to his claims against all Defendants in a timely manner pursuant to
FRCP 26.” (DN 22, at PageID # 168.) The Court recognizes that it “must tread carefully in
granting a stay of proceedings since a party has a right to a determination of its rights and liabilities
without undue delay.” Ohio Envtl. Council v. U.S. Dist. Ct., 565 F.2d 393, 396 (6th Cir. 1977)
(citing Landis v. N. Am. Co., 299 U.S. 248, 254–55 (1936)). However, the Court is unconvinced
that a limited stay prejudices Plaintiff’s right. This case is still in nascent stages; the recently
issued scheduling order established a discovery deadline of November 1, 2022, well over ten
months from now. (DN 34.) Plaintiff will be equally situated to diligently conduct discovery upon
the conclusion of a sixty-day stay. Additionally, the Court agrees with Google that the stay is in
the interest of judicial economy because it will allow the Court to consider all motions to compel
arbitration at the outset of the case. Therefore, the Court will grant Google’s request for a stay
pending limited discovery related to Plaintiff's agreement to arbitrate his claims.
IV. ORDER
For the foregoing reasons,
IT IS HEREBY ORDERED as follows:
1. DN 8is GRANTED.
2. Discovery in this matter is STAYED pending Google’s limited discovery as to Plaintiffs
execution of a binding arbitration agreement, which shall be completed on or before March
15, 2022.
3. Google shall file any motion to compel arbitration on or before March 29, 2022.
Colin H Lindsay, Magistrate Judge
United States District Court
January 12, 2022
ce: Counsel of record