Morgan v. Twitter Inc.
| Docket Number | 2:22-cv-00122-MKD |
| Decision Date | 22 November 2023 |
| Parties | GLEN MORGAN, individually and on behalf of all others similarly situated, Plaintiff, v. TWITTER INC, Defendant. |
| Court | U.S. District Court — District of Washington |
ORDER DENYING PLAINTIFF'S MOTION FOR REMAND AND MOTION TO CERTIFY, AND GRANTING DEFENDANT'S MOTION TO DISMISS
Before the Court is Defendant's Motion to Dismiss, ECF No. 43; Plaintiff's Motion for Remand, ECF No. 64; and Plaintiff's Motion to Certify Questions to the Washington Supreme Court, ECF No. 67. On November 15, 2023, the Court head argument on the motions. Plaintiff was represented by Joel Ard and David DeWolf. Defendant was represented by Thomas Fu and Aravind Swaminathan. The Court has reviewed the record, heard from counsel, and is fully informed. The Court denies Plaintiff's Motion to Remand, denies Plaintiff's Motion to Certify, and grants Defendant's Motion to Dismiss.
Relevant to the instant matter is Gray v. Twitter, Inc., a separate and earlier-filed-but otherwise identical-suit brought under RCW 9.26A.140 in the Western District of Washington. See No. 20-CV-1389 (W.D. Wash. filed Sept. 21, 2020). The plaintiff in that matter was represented by the same attorney of record and sought to certify a class of plaintiffs that would have included Plaintiff Morgan. See Complaint at 8 ¶ 71, Motion to Stay at 1 Gray, No. 20-CV-1389 (W.D. Wash. 2020-22), ECF Nos 1, 31. The intertwined procedural histories of Gray and the instant case are set forth below.
On September 21, 2020, Plaintiff Gray filed a Class Action Complaint against Defendant Twitter, Inc., in the U.S District Court for the Western District of Washington asserting one cause of action under RCW 9.26A.140 and RCW 9A.82.100. Complaint at 10 ¶ 83, Gray, No. 20-CV-1389 (W.D. Wash. Sept. 21, 2020), ECF No. 1. Plaintiff Gray sought certification of a class of plaintiffs including “[a]ll Washington persons who provided a telephone number to Twitter prior to October 8, 2019.” Id. at 8 ¶ 71.
On December 7, 2020, Defendant moved to dismiss Plaintiff Gray's Complaint under Fed.R.Civ.P. 12(b)(6). Motion to Dismiss, Gray, No. 20-CV-1389 (W.D. Wash. Dec. 7, 2020), ECF No. 17. The motion was referred to a magistrate judge, who recommended dismissal on March 17, 2021. Report & Recommendation, Gray, No. 20-CV-1389 (W.D. Wash. Mar. 17, 2021), ECF No. 22.
On April 1, 2021, Plaintiff Gray filed a Motion to Certify Questions to the Washington Supreme Court. Motion to Certify, Gray, No. 20-CV-1389 (W.D. Wash. Apr. 1, 2021), ECF No. 24. Plaintiff Gray also filed objections to the magistrate judge's Report and Recommendation. Objections, Gray, No. 20-CV-1389 (W.D. Wash. Apr. 9, 2021), ECF No. 25. The matter was thereafter reassigned to a new presiding district judge. See generally Gray, No. 20-CV-1389 (W.D. Wash. 2021-22), ECF Nos. 29-31.
Plaintiff Morgan, represented by the same counsel as the plaintiff in Gray, filed the instant case in Spokane Superior Court on May 3, 2022. ECF No. 1 at 3849.[1] Two days later, Plaintiff Gray moved to stay the case in the Western District of Washington, in light of Plaintiff Morgan's case, which she described as “[a] related lawsuit raising class claims under the same legal theory.” Motion to Stay at 1, Gray, No. 20-CV-1389 (W.D. Wash. May 5, 2022), ECF No. 31. Plaintiff Gray stated that a stay was appropriate because her claims “appear[ed] likely to be fully and finally adjudicated in state court.” Id.
On May 19, 2022, Defendant removed Plaintiff Morgan's case to this Court, invoking federal jurisdiction under the Class Action Fairness Act. ECF No. 1.[2]Plaintiff Morgan moved to remand on May 26, 2022, alleging that the Notice of Removal was untimely. ECF No. 8. This motion underwent two rounds of briefing, after Plaintiff Morgan challenged Article III standing for the first time in his Reply brief. See ECF Nos. 29-31, 33.
On July 21, 2022, the court in the Western District of Washington denied Plaintiff Gray's Motion to Stay, citing the first-to-file rule, the significant resources that had already been expended in the litigation, and the lack of authority supporting Plaintiff Gray's “contention that it would be preferable for a state court instead of a federal court to adjudicate her claims.” Order, Gray, No. 20-CV-1389 (W.D. Wash. July 21, 2022), ECF No. 35.[3] On August 24, 2022, the Court conducted a hearing on Plaintiff Morgan's Motion to Remand. ECF No. 26. At that hearing, the Court noted the “inconsistency” of Plaintiff's counsel's argument that the district court for the Eastern District of Washington lacked Article III standing, when counsel had previously filed the Gray case, containing the exact same claims, in the district court for the Western District of Washington and did not dismiss it after the Supreme Court decided TransUnion, the decision which they cited for the proposition that the Court in the Eastern District of Washington lacked standing to consider the claim. ECF No. 39 at 32 n.11; ECF No. 20 at 4-5. Six days later, Plaintiff Gray filed a Notice of Voluntary Dismissal under Fed.R.Civ.P. 41(a)(1)(A)(i). Notice, Gray, No. 20-CV-1389 (W.D. Wash. Aug. 30, 2022), ECF No. 36.
In September and October 2022, Plaintiff Morgan and Defendant submitted supplemental briefing on the Article III issues. ECF Nos. 30-31, 33. In Plaintiff Morgan's sur-response, he contended Defendant was “ask[ing] the Court to accept [Plaintiff] Morgan's legal theory as correct for purposes of evaluating Art. III standing at remand, thereby allowing [Defendant] promptly to ask this Court to find Morgan's legal theory incorrect for purposes of Rule 12(b)(6) moments later, on a motion to dismiss.” ECF No. 31 at 6.[4]
On February 21, 2023, and while the Motion to Remand was still pending, Plaintiff Morgan filed the First Amended Complaint.[5] ECF No. 35. More than 21 days had elapsed since Plaintiff Morgan served Defendant with the original Complaint, so he was not permitted to amend as a matter of course under Fed.R.Civ.P. 15(a)(1)(B). See ECF No. 1. Plaintiff Morgan did not seek leave from the Court to amend, nor did he indicate that he had obtained Defendant's written consent, as required by Fed.R.Civ.P. 15(a)(2). As the Court later noted, the First Amended Complaint “appears to have run afoul of Fed.R.Civ.P. 15,” but because Defendant did not object to the amendment, “the Court took no action” at that time. ECF No. 63 at 5-6.
The First Amended Complaint did not alter the “Cause of Action” statement in the original Complaint. Compare ECF No. 1 at 46 ¶¶ 81-84 with ECF No. 35 at 26 ¶¶ 156-159. Rather, the amendments primarily supplemented or revised the factual allegations underlying that cause of action. Compare ECF No. 1 at 38-47 with ECF No. 35. In particular, the First Amended Complaint added sections describing Defendant's 2011 and 2020-21 settlements with the Federal Trade Commission; Defendant's public statement to users on October 8, 2019; and a whistleblower's allegations against Defendant in 2022 disclosures to Congress. See ECF No. 35 at 6-19. The First Amended Complaint also supplemented the allegations relating to RCW 9.26A.140 and moved the Subsection (1)(a) allegations into a separate heading, apart from the Subsection (1)(b) allegations, although continuing to assert a “sole Count.” See ECF No. 35 at 20-21, 26.
On May 5, 2023, the Court ruled that Plaintiff Morgan had Article III standing. ECF No. 39. In particular, the Court found that Plaintiff Morgan's alleged harm from “Defendant's alleged unlawful procurement or sale of his cell phone number” was “closely analogous to the common law tort of disclosure of private information” and “therefore “sufficient to establish an injury in fact” under Article III. ECF No. 39 at 16. The Court further found that Defendant's removal was timely, denied remand, and ordered Defendant to file an Answer or Motion to Dismiss within 30 days. ECF No. 39.[6]
Defendant filed the instant Motion to Dismiss on June 2, 2023. ECF No. 43. Ten days later, Plaintiff Morgan filed a Motion for Leave to File Second Amended Complaint. ECF No. 47. The proposed amendments would have deleted various allegations from the First Amended Complaint, including the allegations that Defendant sold Plaintiff Morgan's telephone record and the Criminal Profiteering Act grounds for a private cause of action, which the Court had cited in finding Article III standing.[7] See ECF No. 47-1; ECF No. 54 at 4. The Court stayed the briefing on the Motion to Dismiss pending resolution of Plaintiff Morgan's motion. ECF No. 51.
On August 31, 2023, the Court denied Plaintiff Morgan leave to file a second amended complaint, in light of (1) his previous amendment; (2) the futility of amendment, where he only intended to remove, not add, substantive allegations; (3) the prejudice Defendant would suffer if litigation was reset again; and (4) the undue delay that had already resulted from Plaintiff Morgan's counsel's failure to investigate the factual basis for the claim at an earlier time. ECF No. 63. At that time, the Court declined to find that Morgan had intentionally acted to deceive, harass, mislead, delay, or disrupt the proceedings, while noting “the seemingly inconsistent positions” taken during the litigation thus far and the “unusual timing” of Plaintiff Morgan's motion to amend “after an inexplicable delay of investigation and just days after Defendant sought dismissal as a matter of law.” ECF No. 63 at 12. The Court also reset the stayed briefing deadlines relating to Defendant's Motion to Dismiss. Id.
Thereafter Plaintiff Morgan filed the instant Motion to Remand on September 5, 2023, and the instant Motion to...
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