Cats and Dogs Animal Hospital, Inc. v. Yelp! Inc.

Filing 20

OPPOSITION to EX PARTE APPLICATION to Consolidate Cases, as to 10-01578, 15 filed by Plaintiff Cats and Dogs Animal Hospital, Inc.. (Weston, Gregory)

1 THE WESTON FIRM GREGORY S. WESTON (239944) 2 JACK FITZGERALD (257370) 3 888 Turquoise Street San Diego, CA 92109 4 Telephone: [phone] Facsimile: [phone] [e-mail] 6 [e-mail] 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 YELP! INC., 26 27
v. Defendant.

BECK & LEE BUSINESS TRIAL LAWYERS JARED H. BECK (233743) ELIZABETH LEE BECK (233742) Courthouse Plaza Building 28 West Flagler Street, Suite 555 Miami, FL 33130 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail]

9 Attorneys for Plaintiffs and the Proposed Classes
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CATS AND DOGS ANIMAL HOSPITAL, INC.; ASTRO APPLIANCE SERVICE; BLEEDING HEART, LLC d/b/a BLEEDING HEART BAKERY; CALIFORNIA FURNISHINGS, INC. d/b/a SOFA OUTLET; CELIBRÉ, INC.; J.L. FERRI ENTERTAINMENT, INC. d/b/a ADULT SOCIALS; LE PETITE RETREAT DAY SPA, LLC; SAN FRANCISCO BAY BOAT CRUISES, LLC d/b/a MERMAIDS CRUISE; WAG MY TAIL, INC.; and ZODIAC RESTAURANT GROUP, INC. d/b/a SCION RESTAURANT, on behalf of themselves and all others similarly situated, Plaintiffs, Case No: 2:10-cv-01340-VBF-SS Pleading Type: Class Action PLAINTIFFS' OPPOSITION TO DEFENDANT YELP! INC.'S EX PARTE APPLICATION TO CONSOLIDATE RELATED CASES FOR ALL PURPOSES AND TO SET DATES FOR CONSOLIDATED AMENDED COMPLAINT, RESPONSIVE PLEADING, AND JOINT SCHEDULING CONFERENCE Judge: Hon. Valerie Baker Fairbank Action Filed: February 23, 2010

Cats and Dogs Animal Hospital, Inc.et al. v. Yelp! Inc., Case No. 2:10-cv-01340-VBF-SS PLAINTIFFS' REPLY IN OPPOSITION TO DEFENDANT YELP! INC.'S EX PARTE APPLICATION TO CONSOLIDATE

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PLAINTIFFS' OPPOSITION TO YELP'S EX PARTE MOTION Having been served with the Complaint in this case a month ago, on

3 February 25, 2010, and having already secured Plaintiffs' agreement to a two-week 4 extension in which to answer, Yelp now seeks to: 5 6 7 8 9 10 · cancel the Scheduling Conference that, on March 3, the Court set for April 26, and not reschedule it for at least three months1; · delay the beginning of discovery by at least three months; · delay any response to the Complaint by at least two months; and · further delay its response to the Complaint by a month, without showing any need or basis, even if the Court denies Yelp's motion.2

11 But contrary to Yelp's representation that months of delay are "in the interest of 12 orderly case management" (Mot. at 7), suspension is not necessary. 13 Rather than addressing any genuine concern that LaPausky's nearly 14 verbatim copycat complaint--which is entirely subsumed in the Cats and Dogs 15 First Amended Complaint--makes case management unruly, Yelp seeks to 16 leverage the copycat filing to delay advancement of this action. But the relief 17 Plaintiffs seek in their own ex parte motion for consolidation,3 is a more efficient, 18 fairer, and complete solution, which Yelp would surely prefer if it were genuinely 19 interested in efficiency rather than delay. 20 22 23 By consolidating the cases, designating the Cats and Dogs First Amended 21 Complaint as the consolidated complaint, and appointing The Weston Firm and Yelp asks that the Court order Plaintiffs to file a consolidated complaint 30 days after deciding its motion (not "within" 30 days); that Yelp be allowed 30 more 24 days to Answer; and that a scheduling conference be held no earlier than 30 days later. (Yelp Ex Parte Mot. at 3, ¶¶3-5.) 25 2 See Yelp Ex Parte Mot. at 3, n.2. 26 3 Dkt. No. 16. 27
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2 Cats and Dogs Animal Hospital, Inc.et al. v. Yelp! Inc., Case No. 2:10-cv-01340-VBF-SS PLAINTIFFS' REPLY IN OPPOSITION TO DEFENDANT YELP! INC.'S EX PARTE APPLICATION TO CONSOLIDATE

1 Beck & Lee Business Trial Lawyers as interim class counsel, the Court can 2 provide Yelp with the neatness it professes to want without needlessly delaying the 3 case at least three months to Plaintiffs' prejudice. 4 Rather than recite the arguments made in Plaintiffs' ex parte motion, 5 Plaintiffs briefly make only the following additional two points in opposition to 6 Yelp's Motion: 7 First, the case schedule in the coming weeks is already "sequenced logically 8 to allow sufficient time for consolidation, orderly preparation of post-consolidation 9 complaint and responsive pleading, and resolution of the lead counsel issue" (Mot. 10 at 2 & 7), all while providing ample time to meet and confer on Rule 26 issues and 11 prepare a Joint Rule 26(f) Report by April 12. Yelp's Answer to Cats and Dogs' 12 First Amended Complaint is due in seven days, on April 1, and undoubtedly Yelp 13 is prepared to timely file its responsive pleading if the Court does not extend 14 Yelp's time by three months. In granting Plaintiffs' motion to designate the Cats 15 and Dogs First Amended Complaint as the consolidated complaint, the Court 16 would not thereby prejudice Yelp. In other words, designating the Cats and Dogs 17 First Amended Complaint as the consolidated complaint would not create any new 18 work for Yelp requiring a three-month delay, nor would it interfere with the case's 19 current schedule, including the April 26 conference. 20 Second, Yelp's motion shows LaPausky's counsel is acting contrary to the 21 best interests of the Class. Without advising Cats and Dogs' counsel, Mr. Marron 22 has apparently consented entirely to Yelp's requested delays seeking to thwart the 23 case's progression. Moreover, LaPausky's counsel has served a "Notice of 24 // 25 // 26 // 27
3 Cats and Dogs Animal Hospital, Inc.et al. v. Yelp! Inc., Case No. 2:10-cv-01340-VBF-SS PLAINTIFFS' REPLY IN OPPOSITION TO DEFENDANT YELP! INC.'S EX PARTE APPLICATION TO CONSOLIDATE

1 Unavailability of Counsel" in which he claims to not even be accepting notices in 2 the case for at least six weeks.4 3 Plaintiffs respectfully request that the Court consolidate the Cats and Dogs 4 and LaPausky actions, but otherwise deny the delay-in-the-form-of-relief that Yelp 5 seeks. Instead, Plaintiffs respectfully request that the Court address Yelp's 6 concerns by granting Plaintiffs' ex parte motion to consolidate, designating the 7 Cats and Dogs First Amended Complaint as the consolidated complaint, and 8 appointing Cats and Dogs' counsel as interim class counsel. 9 10 DATED: March 25, 2010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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Respectfully Submitted,

s/Gregory S. Weston Gregory S. Weston Jack Fitzgerald THE WESTON FIRM 888 Turquoise Street San Diego, California 92109 Telephone: [phone] Facsimile: 480 247 4553 BECK & LEE BUSINESS TRIAL LAWYERS Jared H. Beck Elizabeth Lee Beck Courthouse Plaza Building 28 West Flagler Street, Suite 555 Miami, FL 33130 Telephone: [phone]

See Exhibit E to the Declaration of Gregory S. Weston in Support of Plaintiffs' 26 Ex Parte Motion for Reassignment, Consolidation, Designation of Lead Case, and Appointment of Interim Lead Counsel (Dkt. No. 16). 27
4 Cats and Dogs Animal Hospital, Inc.et al. v. Yelp! Inc., Case No. 2:10-cv-01340-VBF-SS PLAINTIFFS' REPLY IN OPPOSITION TO DEFENDANT YELP! INC.'S EX PARTE APPLICATION TO CONSOLIDATE

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Facsimile: 786 664 3334 Counsel for Plaintiffs and the Proposed Classes

5 Cats and Dogs Animal Hospital, Inc.et al. v. Yelp! Inc., Case No. 2:10-cv-01340-VBF-SS PLAINTIFFS' REPLY IN OPPOSITION TO DEFENDANT YELP! INC.'S EX PARTE APPLICATION TO CONSOLIDATE

1 2
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C E R T I F I C A T E OF SERVICE I , Evan P. Lee, declare: I am employed in the City and County of San Diego, Stateof California in

4 t h e office of a member of the bar of this court at whose discretionthe following 5 s e r v i c ewas made.I am over the ageof 18 and not a party to the within action.My 6 business address The WestonFirm, 888 TurquoiseStreet,SanDiego, Califomia is 7 9 2 1 0 7 .On March24,20l0,I served following Documents: the 8 9
1 . PlaintiffsoReply in Opposition to Defendant Yelp! Inc.osEx Parte A p p l i c a t i o n to Consolidate

l 0 ( a ) via electronicfiling, using the Court's CaseManagement/Electronic CaseFiling 11
s y s t e m ,to all partieslisted for electronicservice,1\\! V B F (SSx),at Facsimile: [phone]; e-mail:[e-mail]. I declareunder penalty of perjury under the laws of the Stateof California

I 2 ( b ) v i a facsimileand email to Ron Marron,Plaintiff s counselin No. CV 10-01578 13 14

1 5 and the United Statesthat the foregoing is true and correct. I6
on l 7 E x e c u t e d March 25,2010,in SanDiego,California.

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