Jane Doe v. Match.com

Filing 17

Objection in opposition re: REQUEST for Leave to Court's Permission for Plaintiffs to Call Witnesses at Preliminary Injunction Hearing 14 - Objection to Plaintiff's Request to Allow Witnesses at the May 23, 2011 Preliminary Injunction Hearing filed by Defendant Match.com. (Laska, Joseph)

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MANATT, PHELPS & PHILLIPS, LLP
ROBERT H. PLATT (Bar No. 108533)
Email: [e-mail]
JOSEPH E. LASKA (Bar No. 221055)
Email: [e-mail]
11355 West Olympic Boulevard
Los Angeles, California 90064-1614
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
MATCH.COM, LLC,
erroneously sued as Match.com

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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JANE DOE, individually, and on
behalf of all others similarly situated,

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Plaintiff,
vs.
MATCH.COM,

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Defendant.

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Case No. CV11-3795 SVW (JEMx)
Hon. Stephen V. Wilson
Filed as Class Action
OBJECTION TO PLAINTIFF’S
REQUEST TO ALLOW
WITNESSES AT THE MAY 23, 2011
PRELIMINARY INJUNCTION
HEARING

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Hearing Date:
Hearing Time:
Courtroom:

May 23, 2011
1:30 p.m.
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Action filed:

April 13, 2011

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M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

300255197.2
OBJECTION TO PLAINTIFF’S REQUEST TO ALLOW WITNESSES AT MAY 23, 2011 PRELIMINARY INJUNCTION HEARING

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OBJECTION TO REQUEST TO ALLOW WITNESSES AT HEARING

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Defendant Match.com, LLC (“Match”) respectfully submits this objection to

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Plaintiff’s request to allow witnesses at the preliminary injunction hearing set for

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May 23, 2011 at 1:30 p.m. (Docket No. 14.) There is no basis for live testimony at

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this hearing.

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In the Ninth Circuit, live testimony “is rarely allowed” on a motion for

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preliminary injunction. Schwarzer, et al., California Practice Guide: Federal Civil

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Procedure Before Trial, § 13:160 (Rutter 2011), citing Stanley v. University of S.

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Cal., 13 F.3d 1313, 1326 (9th Cir. 1994) (“the refusal to hear oral testimony at a

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preliminary injunction hearing is not an abuse of discretion if the parties have a full

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opportunity to submit written testimony and to argue the matter”). Here, Plaintiff

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has had a full opportunity to submit written testimony in support of her motion.

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Indeed, she has submitted four declarations.1

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Live testimony is particularly unnecessary where, as here, “the movant is

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proceeding on a legal theory which cannot be sustained, because then there could

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be no showing of a likelihood of success on the merits.” Bradley v. Pittsburgh Bd.

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of Educ., 910 F.2d 1172, 1175-76 (3d Cir. 1990). As set forth in detail in Match’s

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opposition to Plaintiff’s motion (Docket No. 15), Plaintiff has not even attempted to

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provide a legal basis for the injunctive relief she seeks, much less demonstrated a

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likelihood of success on the merits.

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Even if the Court were disposed to allow live testimony as appropriate under

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the circumstances, the particular testimony offered by Plaintiff will not assist the

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Court in any way. Plaintiff asks this Court to permit live testimony from four

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witnesses. In each case, the testimony would be either redundant or irrelevant—or

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both:

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This is not one of the “highly unusual cases” in which live testimony would be
appropriate, such as where “facts are bitterly contested” or where “there is a
presumption of irreparable harm (e.g., in Title VII employment discrimination
cases).” Schwarzer at § 13:162.
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M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

300255197.2

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OBJECTION TO PLAINTIFF’S REQUEST TO ALLOW WITNESSES AT MAY 23, 2011 PRELIMINARY INJUNCTION HEARING

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• The first two witnesses—Plaintiff and her purported expert, Russell Mallette—

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are being offered to testify “as to [their] declaration[s] filed in support of the

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Motion for Preliminary Injunction.” (Request at 2:1-6.) Plaintiff does not state

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why such duplicative testimony is necessary or even whether, much less how, it

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would differ materially from the written testimony already submitted.

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• The third witness, Mandy Ginsberg (incorrectly spelled “Ginsburg” by

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Plaintiff), is President of Match’s U.S. operations. Plaintiff would have Ms.

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Ginsberg, a resident of Dallas, Texas, testify regarding “the number of prior

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rapes and/or sexual assaults that have occurred on Match.com dates reported to

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Defendant,” as well as “the size of Match.com and its expansion into China and

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other global regions.” (Request at 2:16-19.) Plaintiff does not attempt to

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explain how these topics are relevant to her pending motion. They are not. But

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even assuming for the sake of argument that these topics were relevant, Ms.

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Ginsberg would not be the appropriate person to testify about them. Plaintiff

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does not explain why Ms. Ginsburg, Match’s most senior U.S. executive, should

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be compelled to travel to testify in person. Moreover, Ms. Ginsberg has not

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submitted a declaration in this case, and therefore there is nothing on which

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Plaintiff may cross-examine her.

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• Finally, Plaintiff “intend[s] to call one more witness for five minutes on direct.”

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(Request at 2:18-19.) Plaintiff does not even identify this mystery witness,

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much less the subject of his or her testimony or why it would be relevant or

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necessary.

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M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

300255197.2

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OBJECTION TO PLAINTIFF’S REQUEST TO ALLOW WITNESSES AT MAY 23, 2011 PRELIMINARY INJUNCTION HEARING

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Match respectfully requests that the Court deny Plaintiff’s request in its
entirety.

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Dated: May 17, 2011

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MANATT, PHELPS & PHILLIPS, LLP
ROBERT H. PLATT
JOSEPH E. LASKA

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By: /s/ Robert H. Platt
Robert H. Platt
Attorneys for Defendant
MATCH.COM, LLC,
erroneously sued as Match.com

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M ANATT , P HELPS &
P HILLIPS , LLP
ATTO RNEY S AT LAW
LOS A NG EL ES

300255197.2

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OBJECTION TO PLAINTIFF’S REQUEST TO ALLOW WITNESSES AT MAY 23, 2011 PRELIMINARY INJUNCTION HEARING