Levitte v. Google Inc.

Filing 26

Statement in Response to 21 Notice of Pendency of Other Action filed by Hal K. Levitte. (Kralowec, Kimberly) (Filed on 10/10/2008) Modified text on 10/16/2008,( to conform with document posted by counsel.)(cv, COURT STAFF).

Levitte v. Google Inc. Doc. 26 1 2 3 4 5 6 7 S C H U B E R T JONCKHEER KOLBE & KRALOWEC LLP 8 9 10 Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 (415) 788-4220 ROBERT C. SCHUBERT S.B.N. 62684 WILLEM F. JONCKHEER S.B.N. 178748 KIMBERLY A. KRALOWEC S.B.N. 163158 SCHUBERT JONCKHEER KOLBE & KRALOWEC LLP Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 Telephone: (415) 788-4220 Facsimile: (415) 788-0161 Attorneys for Plaintiff Hal K. Levitte UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. HAL K. LEVITTE, Individually and On Behalf of All Others Similarly Situated, Plaintiff, Case No. C08-03369 JW PLAINTIFF'S STATEMENT IN RESPONSE TO NOTICE OF PENDENCY OF OTHER ACTION [CIVIL LOCAL RULE 3-13(c)] Judge: Hon. James Ware GOOGLE, INC., a Delaware corporation, Defendant. In its Notice of Pendency of Other Action (Dock. No. 21), defendant Google, Inc. contends that this action should be stayed until a case filed in the Northern District of Illinois, JIT Packaging, Inc. v. Google, Inc., Case No. 08-CV-4543 (N.D. Ill.) (filed Aug. 11, 2008), "is re-filed or transferred here." While plaintiff agrees the JIT Packaging action involves similar and overlapping allegations and is therefore related to this case within the meaning of Civil Local Rule 3-12, there is no reason for a stay. On October 8, 2008, the JIT Packaging case was voluntarily dismissed without prejudice. (A true and correct copy of the dismissal order in JIT Packaging is attached hereto as Exhibit A.) PLAINTIFF'S STATEMENT IN RESPONSE TO NOTICE OF PENDENCY OF OTHER ACTION [CIVIL LOCAL RULE 3-13(C)] 1 Dockets.Justia.com 1 2 3 4 5 6 7 S C H U B E R T JONCKHEER KOLBE & KRALOWEC LLP 8 9 10 Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 (415) 788-4220 On October 10, 2008, the action was re-filed in this District. JIT Packaging, Inc. v. Google, Inc., Case No. C08-4701 PVT (N.D. Cal.) (filed Oct. 10, 2008). Plaintiff respectfully requests that the Court reconsider his administrative motion to relate all of the subsequently-filed cases, including RK West1 and Pulaski & Middleman,2 before this Court. JIT Packaging should also be related, as a fourth subsequently-filed case. On September 19, 2008 this Court provisionally denied plaintiff's previously-filed administrative motion to relate these cases (Dock. No. 9), pending resolution of another motion to relate, filed by defendant Google, Inc. in a different, earlier-filed case, Almeida v. Google, Inc., Case No. C 08-2088-RMW (N.D. Cal.). See Order Denying Plaintiffs' Motion to Relate Cases, September 19, 2008 (Dock. No. 17). On September 29, 2008, Judge Ronald M. Whyte denied Google's motion to relate this case (and the RK West and Pulaski & Middleman cases) with the Almeida action, finding that "Almeida is not related to RK West, Pulaski & Middleman, and Levitte." See Almeida v. Google, Inc., Order Denying Defendant's Motion to Relate Cases, September 29, 2008 (Dock. No. 20). Judge Whyte expressly declined to "determine whether those cases are related to each other. That issue is before Judge Ware, whose Levitte case has the lowest docket number of the three." Id. A true and correct copy of Judge Whyte's Order is attached hereto as Exhibit B. As Judge Whyte noted, "all parties agree" that Levitte, RK West, and Pulaski & Middleman "are themselves related." Id. The parties also agree that JIT Packaging is related. Plaintiff respectfully requests that all four cases be deemed related and reassigned to this Court pursuant to Local Rule 3-12(f)(3). Counsel for plaintiffs in each of those cases join in this request. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 RK West, Inc. v. Google, Inc., Case No. C08-03452 (filed July 17, 2008). Pulaski & Middleman, LLC v. Google Inc., Case No. C08-03888 (filed August 14, 2008). 2 PLAINTIFF'S STATEMENT IN RESPONSE TO NOTICE OF PENDENCY OF OTHER ACTION [CIVIL LOCAL RULE 3-13(C)] 2 1 2 3 4 5 6 7 S C H U B E R T JONCKHEER KOLBE & KRALOWEC LLP 8 9 10 Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 (415) 788-4220 Respectfully submitted, Dated: October 10, 2008 SCHUBERT JONCKHEER KOLBE & KRALOWEC LLP /s/ Kimberly A. Kralowec ROBERT C. SCHUBERT WILLEM F. JONCKHEER KIMBERLY A. KRALOWEC Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 Telephone: (415) 788-4220 Facsimile: (415) 788-0161 Attorneys for Plaintiff 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S STATEMENT IN RESPONSE TO NOTICE OF PENDENCY OF OTHER ACTION [CIVIL LOCAL RULE 3-13(C)] 3 EXHIBIT A Case 1:08-cv-04543 Document 28 Filed 10/08/2008 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois - CM/ECF LIVE, Ver 3.2.2 Eastern Division JIT Packaging Inc Plaintiff, v. Google, Inc. Defendant. Case No.: 1:08-cv-04543 Honorable Robert M. Dow Jr. NOTIFICATION OF DOCKET ENTRY This docket entry was made by the Clerk on Wednesday, October 8, 2008: MINUTE entry before the Honorable Robert M. Dow, Jr: Pursuant to Stipulation [27] the parties consent and stipulate to the voluntary dismissal, without prejudice, of Plaintiff's entire complaint. Defendant's Motion to Dismiss[22] is stricken as moot. Status hearing date of 10/9/08 is stricken. Notice of Motion date of 10/9/08 is stricken and no appearances are necessary on that date. Civil case terminated. Mailed notice(tbk, ) ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information. For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov. EXHIBIT B Case 5:08-cv-02088-RMW Document 20 Filed 09/29/2008 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant Google moves to relate this action with RK West v. Google, Inc., Case No. C-0803452 RMW, Pulaski & Middleman, LLC v. Google, Inc., Case No. C-08-0388 SI, and Levitte v. Google, Inc., Case No. C-08-3369 JW. All parties agree that the three cases sought here to be related are themselves related. Therefore, the only question for the court is whether those cases relate to the instant one, which bears the lowest docket number. It appears that, though in all four cases the defendant is Google and the case concerns the Adwords program, the similarity ends there. RK West, Pulaski & Middleman, and Levitte all deal with Google ads posted on "parked domains" and "error pages," whereas this case concerns Google charging customers for content ads who, during the Adwords bidding process, left the "CPC content bid" input blank. Furthermore, the proposed class in this case does not appear to overlap with the ORDER DENYING DEFENDANT'S ADMINISTRATIVE REQUEST TO RELATE CASES--No. C-08-02088 RMW JAS E-FILED on 09/29/08 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION DAVID ALMEIDA, individually and on behalf of all others similarly situated, Plaintiff, v. Google, INC., a Delaware Corporation; and Does 1 through 10, inclusive, Defendants. No. C-08-02088 RMW ORDER DENYING DEFENDANT'S ADMINISTRATIVE REQUEST TO RELATE CASES [Re Docket No. 16] Case 5:08-cv-02088-RMW Document 20 Filed 09/29/2008 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 proposed classes in RK West, Pulaski & Middleman, and Levitte. See Joint Opp'n to Mot. to Consider Whether Cases Should Be Related, 2-3. This order only determines that Almeida is not related to RK West, Pulaski & Middleman, and Levitte. It does not determine whether those cases are related to each other. That issue is before Judge Ware, whose Levitte case has the lowest docket number of the three. Accordingly, the court denies defendant's motion to relate. DATED: 09/29/08 RONALD M. WHYTE United States District Judge ORDER DENYING DEFENDANT'S ADMINISTRATIVE REQUEST TO RELATE CASES--No. C-08-02088 RMW JAS 2 Case 5:08-cv-02088-RMW Document 20 Filed 09/29/2008 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice of this document has been electronically sent to: Counsel for Plaintiff: Daralyn J. Durie David Jason Silbert Ryan Marshall Kent Alyse Deborah Bertenthal Leo Patrick Norton Counsel for Defendants: Alfredo Torrijos Brian S. Kabateck at@kbklawyers.com bsk@kbklawyers.com ddurie@kvn.com djs@kvn.com rkent@kvn.com abertenthal@kvn.com lnorton@cooley.com Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program. Dated: 09/29/08 JAS Chambers of Judge Whyte ORDER DENYING DEFENDANT'S ADMINISTRATIVE REQUEST TO RELATE CASES--No. C-08-02088 RMW JAS 3