IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT PIERCE DIVISION 

CASE NO.: 2:20-cv- 14159-ROSENBERG-MAYNARD 

DJ LINCOLN ENTERPRISES, INC. 

Plaintiff, 

v. 

GOOGLE, LLC, 

Defendant. 

_______________________________________ 

DEFENDANT GOOGLE LLC’S REPLY MEMORANDUM OF LAW 

IN SUPPORT OF MOTION TO STAY DISCOVERY 

Case 2:20-cv-14159-RLR Document 37 Entered on FLSD Docket 11/09/2020 Page 1 of 8
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Plaintiff’s Memorandum in Opposition (“Opp.,” Dkt. 34) to Google’s Motion to Stay 

Discovery offers no actual reasons why discovery should proceed. Instead, Plaintiff relies on outof-Circuit case law to argue that a pending motion to dismiss does not, on its own, warrant a stay 

of discovery. But Google has not argued otherwise. Instead, as explained in its Motion to Stay 

(Dkt. 29 at 6-8), Google has demonstrated far more than “some degree of foundation in law” 

(Opp. at 4-5) in support of its Motion to Dismiss. Plaintiff’s counsel himself admitted as much 

during the October 29, 2020 discovery conference, when he explained that Plaintiff did not 

initiate discovery because of Google’s “substantial motion to dismiss.” Oct. 29, 2020 Conference 

Tr. at 8:16-19. And it is not just the substantiality of Google’s pending motion to dismiss, but its 

substance that warrants a stay of discovery; indeed, Plaintiff’s Opposition does not even address, 

much less attempt to rebut, the presumption in favor of a stay that arises where, as here, a 

plaintiff fails to allege fraud with the particularity required by Rule 9(b). See Dkt. 29 at 8-10. It 

would wholly subvert Rule 9(b) to allow fraud claims to proceed to discovery when a plaintiff 

offers nothing more than the highly general and wholly conclusory allegations that the Amended 

Complaint offers here. Finally, and especially in light of Plaintiff’s nearly four-month delay in 

serving discovery requests, Plaintiff cannot show that it would be prejudiced by a stay pending 

resolution of Google’s motion to dismiss. 

ARGUMENT 

I. PLAINTIFF IS NOT ENTITLED TO DISCOVERY DUE TO ITS MULTIPLE 

PLEADING DEFECTS AND ITS PATENTLY DEFICIENT COMPLIANCE 

WITH RULE 9(b) 

Plaintiff argues that “Google’s main reason for a stay of discovery is that there is a 

pending motion to dismiss.” Opp. at 4. This is wrong. Instead, as Google argued in its opening 

brief, a stay of discovery is warranted here because Plaintiff has utterly failed to plead every one 

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of its federal and state law claims on multiple, independent grounds. Plaintiff does not come 

close to alleging a viable RICO claim (Dkt. 21 at 6-9); his lawsuit as a whole seeks to impose 

liability on Google for exercising its constitutional right to decide how to order its search results 

(id. at 18-20); and, perhaps most critically for purposes of this motion, Plaintiff has entirely 

failed to satisfy the particularity required by Rule 9(b) with respect to those of Plaintiff’s claims 

that are grounded in fraud (all but its tortious interference claim) (id. at 9-10, 13-14, 18). See 

Dkt. 29 at 6-8; see also Borislow v. Canaccord Genuity Grp. Inc., 2014 U.S. Dist. LEXIS 

190681, at *3 (S.D. Fla. June 23, 2014) (granting stay of discovery pending determination of 

threshold issues including claims potentially barred by the First Amendment).1

The Rule 9(b) problem is especially acute and, by itself, warrants a stay. The Eleventh 

Circuit has expressly recognized that the “particularity requirement of Rule 9 is a nullity if 

Plaintiff gets a ticket to the discovery process without identifying a single claim.” United States 

ex rel. Atkins v. McInteer, 470 F.3d 1350, 1359-60 (11th Cir. 2006); accord United States ex. rel. 

Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1313 n.24 (11th Cir. 2002) (one of the 

“strong purpose[s]” of Rule 9(b) is “protecting defendants from frivolous suits, or ‘spurious 

charges of immoral and fraudulent behavior’”). Following that guidance, courts in this Circuit 

have consistently stayed discovery when “Defendants are alleging that Plaintiffs failed to plead 

fraud with particularity as required by Federal Rule of Civil Procedure 9(b).” Tradex Glob. 

1

 Plaintiff argues that a three-factor test from an Iowa district court opinion should be applied 

to determine whether a stay is warranted in this matter. Opp. at 6 (citing Allen v. Agreliant 

Genetics, LLC, 2016 WL 5416418, at * 2 (N.D. Iowa Sept. 26, 2016). This test does not apply in 

the Eleventh Circuit. But even under this scheme, Google has demonstrated that a stay is 

warranted: (1) the Motion to Dismiss makes a strong showing that Plaintiff’s claims are 

frivolous; (2) Plaintiff’s discovery requests are wildly overbroad and unduly burdensome; and 

(3) Plaintiff cannot be prejudiced by a brief stay in discovery where it chose to wait four months 

to request discovery. 

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Master Fund SPC, Ltd. v. Palm Beach Capital Mgmt., LLC, 2009 U.S. Dist. LEXIS 135687, at 

*4 (S.D. Fla. Nov. 23, 2009); see also United States ex rel. Bumbury v. Med-Care Diabetic & 

Med. Supplies, 2014 U.S. Dist. LEXIS 194078, at *8 (S.D. Fla. June 16, 2014) (same); United 

States ex rel. Tirella v. Klausner Lumber One, LLC, 2016 U.S. Dist. LEXIS 196036, at *2-4 

(M.D. Fla. Sept. 27, 2016) (same) (citing United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 

1359-60 (11th Cir. 2006)). Indeed, “Rule 9(b)’s very purpose is to protect from discovery 

defendants facing inadequately pled fraud claims.” United States ex rel. Mastej v. Health 

Mgmt. Assocs., 869 F. Supp. 2d 1336, 1350 (M.D. Fla. 2012) (emphasis added) (citing 

Friedlander v. Nims, 755 F.2d 810, 813 n.3 (11th Cir. 1985)). 

Plaintiff ignores all of this. Instead, it asserts in conclusory fashion that it has alleged the 

required “who, what, when, where, and why” of the purported fraudulent scheme underpinning 

its claims. But that simply is not so. Despite having already amended its complaint, Plaintiff has 

left all of those basic questions unanswered. Dkt. 21 at 9-10; Opp. at 7. And Rule 9(b) forbids 

Plaintiff from using discovery to shore up its pleading defects. Accord Bingham v. HCA, Inc., 

783 F. App’x 868, 876 (11th Cir. 2019) (explaining that “it is important to discourage plaintiffs 

from being able to ‘learn the complaint’s bare essentials through discovery’ which could 

‘needlessly harm a defendants’ [sic] goodwill and reputation by bringing a suit that is, at best, 

missing some of its core underpinnings, and, at worst, are baseless allegations used to extract 

settlements’”); Apex Toxicology, LLC v. United Healthcare Servs., 2020 U.S. Dist. LEXIS 

120460, at *23-24 (S.D. Fla. July 6, 2020) (holding that a plaintiff could not take discovery to 

shore up non-particularized fraud claims); Madonna v. United States, 878 F.2d 62, 66 (2d Cir. 

1989) (“[Plaintiff’s] contention, that discovery will unearth information tending to prove his 

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contention of fraud, is precisely what Rule 9(b) attempts to discourage.”).2

II. PLAINTIFF WILL NOT SUFFER ANY PREJUDICE IF DISCOVERY IS 

STAYED 

Finally, Plaintiff’s Opposition asserts that a stay of discovery will “materially interfere 

with Lincoln’s ability and efforts to marshal evidence and prove its case.” Opp. 8. But Plaintiff 

offers no actual basis to support this argument. Nor could it. Plaintiff’s failure to seek any 

discovery from Google for nearly four months belies any suggestion of prejudice. A stay would 

not “delay justice” (Opp. 7) any more than Plaintiffs’ own choices have caused delay, and 

Plaintiff would not suffer any prejudice if the Court briefly holds discovery in abeyance to allow 

the Court to first address the many fundamental flaws in Plaintiff’s claims. 

Moreover, and as Plaintiff all but acknowledged at the parties’ October 29 status 

conference, staying discovery would actually promote judicial economy because it would avoid 

entangling the Court in needless disputes over unreasonable discovery. Oct. 29, 2020 Conference 

Tr. at 8:10-24 (counsel explaining that Plaintiff did not initiate discovery for reasons of “judicial 

economy” and because it “felt like it might be good to wait and see whether the district court 

ruled on it and gave us a clear indication of where the case is going”); accord Nuwer v. FCA US 

LLC, 2020 U.S. Dist. LEXIS 182511, at *3-4 (S.D. Fla. June 24, 2020) (staying discovery to 

promote judicial economy when claims may be dismissed or narrowed before starting 

2

 The cases that Plaintiff cites simply say that filing a motion to dismiss does not 

automatically constitute grounds for a discovery stay. Bowens v. Columbus Metro. Library Bd. of 

Trustees, 2010 WL 3719245 (S.D. Ohio Sept. 16, 2010); Kor Media Grp., LLC v. Green, 294 

F.R.D. 579 (D. Nev. 2013); Pioneer Centres Holding Co. Employee Stock Ownership Plan and 

Trust v. Alerus Fin. N.A., 2013 WL 589187 (D. Colo. Feb. 14, 2013); Hoxie v. Livingston 

County, 2010 WL 822401 (E.D. Mich. Mar. 4, 2010); Daniels v. City of Sioux City, 294 F.R.D. 

509 (N.D. Iowa 2013). Google has not claimed otherwise, and these cases do not offer any 

reason why a stay would not be warranted here. 

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discovery); Baine v. Citibank, Nat’l Ass’n, 2018 U.S. Dist. LEXIS 224594, at *4 (N.D. Ga. Oct. 

10, 2018) (staying discovery pending dispositive motion in the interest of judicial economy). 

In contrast, Google would be prejudiced if Plaintiff’s overbroad discovery requests are 

allowed to proceed. Contrary to Plaintiff’s assertion (Opp. at 7), Plaintiff’s discovery is not at all 

“narrowly tailored.” Plaintiff has asked for a decade’s worth of highly sensitive trade secret 

information without any connection to Plaintiff, its business, or the website that is the subject of 

its claims. See Dkt. 29 at 3-5 and Willen Decl., Ex. 1. These requests are improper, overbroad, 

and unduly burdensome. Moreover, Plaintiff has attempted to abuse the discovery process 

specifically to obtain the information needed to support its fraud allegations (Oct. 29, 2020 

Conference Tr. at 20:9-16 (counsel claiming that Plaintiff could use “facts adduced in discovery” 

to “give more flavor to the Rule 9(b) issue”)—exactly what Eleventh Circuit law forbids. See 

Bingham, 783 F. App’x at 876.

In short, Plaintiff’s own inaction confirms that it would suffer no prejudice from a stay, 

and granting one would further the interests in judicial economy, in avoiding unnecessary 

disputes, and in furthering the purposes of Rule 9(b). 

CONCLUSION 

For these reasons, Google respectfully requests that the Court stay discovery until such 

time as the Court determines that Google is required to answer the Amended Complaint. 

Dated: November 9, 2020 Respectfully submitted, 

/s/ Nathan M. Berman

NATHAN M. BERMAN 

Florida Bar No.: 0329230 

Email: nberman@zuckerman.com 

ZUCKERMAN SPAEDER LLP 

101 E. Kennedy Blvd., Suite 1200 

Tampa, Florida 33602 

Telephone: (813) 221-1010 

Facsimile: (813) 223-7961

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BRIAN M. WILLEN (pro hac vice) 

Email: bwillen@wsgr.com 

ALEXANDER S. ZBROZEK (pro hac vice) 

Email: azbrozek@wsgr.com 

WILSON SONSINI 

 GOODRICH & ROSATI, P.C. 

1301 Avenue of the Americas 

New York, NY 10019 

Telephone: (212) 999-5800 

Facsimile: (212) 999-5899 

LAUREN GALLO WHITE (pro hac vice) 

Email: lwhite@wsgr.com 

WILSON SONSINI 

 GOODRICH & ROSATI, P.C. 

650 Page Mill Road 

Palo Alto, CA 94304 

Telephone: (650) 493-9300 

Facsimile: (650) 565-5100 

Attorneys for Defendant 

GOOGLE LLC

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CERTIFICATE OF SERVICE 

 WE HEREBY CERTIFY that on November 9, 2020, a true and correct copy of the 

foregoing was electronically filed with the Clerk of the Court by using the CM/ECF system, 

which will send a notice of electronic filing to all counsel of record. 

/s/ Nathan M. Berman 

Nathan M. Berman 

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