Parrish et al v. National Football League Players Incorporated

Filing 360

MOTION to Dismiss for Lack of Jurisdiction --Plaintiff's Notice of Motion and Motion to Dismiss Parrish's Individual Claim Without Prejudice For Lack of Jurisdiction filed by Bernard Paul Parrish. Motion Hearing set for 9/18/2008 08:00 AM in Courtroom 9, 19th Floor, San Francisco. (Attachments: # 1 Notice of Motion, # 2 Proposed Order)(Hilbert, Ryan) (Filed on 8/13/2008)

Parrish et al v. National Football League Players Incorporated

Doc. 360

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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 PLAINTIFF'S MOTION TO DISMISS PARRISH'S INDIVIDUAL CLAIM WITHOUT PREJUDICE FOR LACK OF JURISDICTION Date: September 18, 2008 Time: 8:00 a.m. Place: Courtroom 9, 19th Floor Judge: Hon. William H. Alsup

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MOTION TO DISMISS 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. 1
MOTION TO DISMISS 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

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 13, 2008

MANATT, PHELPS & PHILLIPS, LLP By: /s/ Ryan S. Hilbert Ronald S. Katz (SBN 085713) Ryan S. Hilbert (SBN 210549) Noel S. Cohen (SBN 219645) MANATT, PHELPS & PHILLIPS, LLP 1001 Page Mill Road, Building 2 Palo Alto, CA 94304-1006 Telephone: [phone] Facsimile: [phone] McKOOL SMITH, P.C. Lewis T. LeClair, Esq. Sam Baxter Jill Adler Naylor 300 Crescent Court Suite 1500 Dallas, TX 75201 214-978-4984 214-978-4044 (fax) Attorneys for Plaintiffs

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MOTION TO DISMISS CASE NO. C07 0943 WHA