Parrish et al v. National Football League Players Incorporated

Filing 358

MOTION to Dismiss for Lack of Jurisdiction Motion to Dismiss Plaintiff Parrish's Individual Claim Without Prejudice for Lack of Jurisdiction and [Proposed] Order filed by Bernard Paul Parrish, Walter Roberts, III, Herbert Anthony Adderley. (Hilbert, Ryan) (Filed on 8/12/2008)

Parrish et al v. National Football League Players Incorporated

Doc. 358

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MANATT, PHELPS & PHILLIPS, LLP
A T T O R N E Y S A T LAW PALO A L T O

MANATT, PHELPS & PHILLIPS, LLP RONALD S. KATZ (Bar No. CA 085713) E-mail: [e-mail] RYAN S. HILBERT (Bar No. CA 210549) E-mail: [e-mail] NOEL S. COHEN (Bar No. CA 219645) E-mail: [e-mail] 1001 Page Mill Road, Building 2 Palo Alto, CA 94304-1006 Tel: [phone]; Fax: [phone] MCKOOL SMITH, LEWIS T. LECLAIR (Bar No. CA 077136) E-mail: [e-mail] JILL ADLER NAYLOR(Bar No. CA 150783) E-mail: [e-mail] 300 Crescent Court Dallas, TX 75201 Tel: [phone]; Fax: [phone] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT SAN FRANCISCO DIVISION BERNARD PAUL PARRISH, HERBERT ANTHONY ADDERLEY, and WALTER ROBERTS III, on behalf of themselves and all others similarly situated, Plaintiffs, v. NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, a Virginia corporation, and NATIONAL FOOTBALL LEAGUE PLAYERS INCORPORATED d/b/a PLAYERS INC, a Virginia corporation, Defendants. CIVIL ACTION NO. C07 0943 WHA MOTION TO DISMISS PLAINTIFF PARRISH'S INDIVIDUAL CLAIM WITHOUT PREJUDICE FOR LACK OF JURISDICTION

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MOTION TO DISMISS AND [PROPOSED] ORDER CASE NO. C07 0943 WHA

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MANATT, PHELPS & PHILLIPS, LLP
A T T O R N E Y S A T LAW PALO A L T O

Plaintiff Bernard Paul Parrish moves1 to dismiss without prejudice Parrish's claim for breach of fiduciary duty against Defendants on the ground that the Court lacks jurisdiction, as follows: 1. Parrish filed a putative class action on behalf of himself and others similarly In its Order dated

situated (the "Retired NFLPA Member Class") on February 14, 2007.

November 14, 2007 Granting in Part and Denying in Part Plaintiffs' Motion for Leave to File an Amended Complaint, this Court stated that "Parrish has stated a claim for breach of fiduciary duty." As a result, on March 14, 2008, Plaintiffs filed a Motion to certify as a class action the claim for breach of fiduciary duty asserted by Bernard Parrish against Defendants on behalf of the Retired NFLPA Member Class. 3. In its Order dated April 29, 2008 Granting in Part and Denying in Part Plaintiffs'

Motion for Class Certification, this Court denied certification of Parrish's breach of fiduciary duty claim on behalf of the Retired NFLPA Member Class on the grounds that Parrish was not an adequate class representative. Thus, by denying certification of Parrish's claim for breach of fiduciary duty on behalf of the Retired NFLPA Member Class (without ruling on the merits), Parrish is left only with an individual claim that does not satisfy the requirements for federal court diversity jurisdiction as his claim, standing alone, does not exceed the jurisdictional amount of $75,000. See 28 U.S.C.A. § 1332(a). 4. Based on the foregoing, Plaintiffs request that Parrish's individual claim for breach

of fiduciary duty now be dismissed without prejudice, with: (a) the right to appeal this Court's final judgment with respect to the denial of class certification for Parrish's breach of fiduciary duty claim brought on behalf of the Retired NFLPA Member Class be expressly preserved, and (b) in the event of a successful appeal of the Court's final judgment with respect to the denial of

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Plaintiffs tried working with Defendants on a suitable stipulation dismissing Mr. Parrish's claims, and even provided Defendants with two different versions. Defendants, however, refused to agree to a stipulation of dismissal without prejudice and demanded that Parrish dismiss his claims with prejudice. Plaintiffs believe that dismissal without prejudice is the appropriate vehicle, and now bring this motion in order to dismiss Mr. Parrish's claim and streamline this case for trial. MOTION TO DISMISS AND [PROPOSED] ORDER 20205265.1 1 CASE NO. C07 0943 WHA
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A T T O R N E Y S A T LAW PALO A L T O

class certification for Parrish's breach of fiduciary duty claim, the right that such class claim be allowed to move forward before this Court. WHEREAS, Plaintiffs request that (1) Parrish's individual claim for breach of fiduciary duty now be dismissed without prejudice, (2) the right to appeal this Court's final judgment with respect to the denial of class certification for Parrish's breach of fiduciary duty claim brought on behalf of the Retired NFLPA Member Class be expressly preserved, and (3) in the event of a successful appeal of the Court's final judgment with respect to the denial of class certification for Parrish's breach of fiduciary duty claim, that such claim be allowed to move forward before this Court.

Dated:

August 12, 2008

MANATT, PHELPS & PHILLIPS, LLP By: /s/Ryan S. Hilbert Ryan S. Hilbert 1001 Page Mill Road, Building 2 Palo Alto, CA 94304-1006 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs

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[PROPOSED] ORDER The Court having considered the Motion to Dismiss, the pleadings on file and the arguments of counsel, and good cause appearing, hereby GRANTS Parrish' Motion to Dismiss his individual claim without prejudice. It is hereby ORDERED that that (1) Parrish's individual claim for breach of fiduciary duty is now dismissed without prejudice, (2) the right to appeal this Court's final judgment with respect to the denial of class certification for Parrish's breach of fiduciary duty claim brought on behalf of the Retired NFLPA Member Class is expressly preserved, and (3) in the event of a successful appeal of the Court's final judgment with respect to the denial of class certification for Parrish's breach of fiduciary duty claim, that such claim is allowed to move forward before this Court. IT IS SO ORDERED.

Dated: HON. WILLIAM H. ALSUP United States District Court Judge

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