Gellis v. Verizon Communications, Inc. et al

Filing 64

ORDER GRANTING 62 Stipulation RE: FILING THIRD AMENDED COMPLAINT AND REVISING PRETRIAL SCHEDULING ORDER. Signed by Judge Jeffrey S. White on 12/2/08. (jjo, COURT STAFF) (Filed on 12/2/2008)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Steve W. Berman Jeff D. Friedman (173886) Shana E. Scarlett (217895) HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, California 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 steve@hbsslaw.com jefff@hbsslaw.com shanas@hbsslaw.com Mark Chavez (90858) Nance F. Becker (99292) CHAVEZ & GERTLER LLP 42 Miller Avenue Mill Valley, CA 94941 Telephone: (415) 381-5599 Facsimile: (415) 381-5572 mark@chavezgertler.com nance@chavezgertler.com Peter B. Fredman (189097) LAW OFFICES OF PETER B. FREDMAN 125 University Avenue, Suite 102 Berkeley, CA 94710 Telephone: (510) 868-2626 Facsimile: (510) 868-2627 peterfredman@sbcglobal.net Attorneys for Plaintiffs and all others similarly situated UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION JOSEPH RUWE and ELIZABETH ORLANDO, ) Individually and on behalf of all others similarly ) situated, ) ) Plaintiffs, ) ) v. ) ) CELLCO PARTNERSHIP d/b/a VERIZON ) ) WIRELESS, ) Defendant. ) ) ) No. 07-cv-03679 JSW CLASS ACTION STIPULATION RE: FILING THIRD AMENDED COMPLAINT AND [PROPOSED] ORDER REVISING PRETRIAL SCHEDULING ORDER 010073-11 275266 V1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. RECITALS Catherine Gellis commenced this consumer class action, in which she alleged that a provision in Verizon Wireless's terms and conditions imposing minimum $5 late fees is an unlawful penalty, and sought injunctive and monetary relief. 2. On October 9, 2008, plaintiff amended her complaint to add Joseph Ruwe and Elizabeth Orlando as additional class representatives. Ms. Gellis was subsequently dismissed as a named plaintiff from the action. 3. As a result of facts obtained during investigation and discovery in this action, Mr. Ruwe and Ms. Orlando seek to file a Third Amended Complaint. Plaintiffs seek to add allegations that the $15 "reconnect" fees that Verizon Wireless charges to subscribers whose service it has impaired as a result of subscribers paying late is an additional illegal penalty in violation of California law. Plaintiffs have asked Verizon Wireless to stipulate to the amendment. 4. Verizon Wireless disputes the legal basis for plaintiffs' additional claims and plans to file a motion to dismiss these additional claims. Verizon Wireless has asked for an extended response period due to the press of business and the upcoming holiday season. 5. Discovery relating to plaintiffs' claims and Verizon Wireless's defenses will proceed during the period Verizon Wireless challenges whether plaintiffs' additional allegations state claims for which relief may be granted. Verizon Wireless, however, shall not be required to produce information that would be discoverable only with respect to plaintiffs' claims regarding Verizon Wireless's practice of charging "reconnect" fees alleged in the amended pleading, until the court rules on its dismissal motion. Plaintiffs reserve the right to contest Verizon Wireless's position through appropriate means, if they believe that the information would otherwise be discoverable without respect to the additional claims. The parties agree to confer in good faith to try and stage the timing of such discovery to avoid undue burden and expense on either party. 6. The parties also agree that with respect to depositions of witnesses who may have information and knowledge pertaining to plaintiffs' claims regarding Verizon Wireless's practice of charging "reconnect" fees alleged in the amended pleading shall be taken, if otherwise appropriate, after the court rules on Verizon Wireless's motion to dismiss, in order to avoid STIP. AND [PROP.] ORDER RE THIRD AMENDED COMPL. 07-cv-03679 JSW 010073-11 275266 V1 -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 potential duplication or inefficiency. Prior to the Court's ruling on the motion to dismiss, Verizon Wireless will determine in good faith whether any such deponent would in fact cause duplicative discovery depending on the outcome of Verizon Wireless's motion to dismiss. In the event Verizon Wireless chooses not to produce such a witness (or witnesses) prior to the resolution of its motion to dismiss, it agrees to produce any such witnesses no later than thirty (30) days after the Court rules on Verizon Wireless's motion to dismiss. 7. The parties agree that the briefing of plaintiffs' motion for class certification should await the resolution of defendant's anticipated motion to dismiss. WHEREFORE the parties stipulate and agree as follows: STIPULATION 1. Plaintiffs may file the Third Amended Complaint, filed concurrently herewith. As named plaintiff Gellis has been dismissed from the case, the action shall henceforward be known as Ruwe, et al. v. Verizon Wireless. 2. Verizon Wireless shall have up to and including January 23, 2009, to file a motion to dismiss or answer the new allegations set forth in plaintiffs' Third Amended Complaint. Plaintiffs shall have twenty-one days to file their opposition to defendant's motion to dismiss. Defendant shall have fourteen days to reply to plaintiffs' opposition. 3. Both parties shall have the right to propound, and shall have the obligation to respond to, discovery while the motion to dismiss is pending. Verizon Wireless, however, shall not be required to produce information that would be discoverable only with respect to plaintiffs' claims regarding Verizon Wireless's practice of charging "reconnect" fees alleged in the amended pleading, until the court rules on its dismissal motion. Plaintiffs reserve the right to contest Verizon Wireless's position through appropriate means, if they believe that the information would otherwise be discoverable without respect to the additional claims. The parties shall meet and confer to attempt to resolve any such issues. 4. Depositions of witnesses who may have information and knowledge with respect to plaintiffs' claims regarding Verizon Wireless's practice of charging "reconnect" fees alleged in the amended pleading shall be taken, if otherwise appropriate, after the court rules on Verizon STIP. AND [PROP.] ORDER RE THIRD AMENDED COMPL. 07-cv-03679 JSW 010073-11 275266 V1 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wireless's motion to dismiss. Prior to the Court's ruling on the motion to dismiss, Verizon Wireless will determine in good faith whether any such deponent would in fact cause duplicative discovery depending on the outcome of Verizon Wireless's motion to dismiss. In the event Verizon Wireless chooses not to produce such a witness (or witnesses) prior to the resolution of its motion to dismiss, it agrees to produce any such witnesses no later than thirty (30) days after the Court rules on Verizon Wireless's motion to dismiss. 5. As a result of these developments, the scheduling order should be modified so as to give plaintiffs sixty (60) days from the date of the court's decision on the motion to dismiss to file their motion for class certification, and other dates shall be modified consistent with that extension. The existing scheduling order shall be modified as follows: Current Schedule Defendant to produce deponents it delayed due to potential overlapping discovery Plaintiff to file motion for class certification Defendant to file opposition to class cert. Plaintiff to file reply in support of class cert. Hearing on motion for class certification Fact discovery cut-off Expert discovery cut-off Dispositive motions to be filed Hearing on dispositive motions Pretrial conference Trial N/A January 30, 2009 March 31, 2009 April 30, 2009 May 15, 2009 June 12, 2009 August 28, 2009 September 15, 2009 October 30, 2009 January 11, 2010 February 1, 2010 Proposed Schedule Decision on MTD + 30 days Decision on MTD + 60 days Plaintiffs' motion for class cert + 60 days Defendants' opposition to class cert + 30 days TBD October 16, 2009 November 27, 2009 December 18, 2009 January 29, 2010 April 14, 2010 May 3, 2010 STIP. AND [PROP.] ORDER RE THIRD AMENDED COMPL. 07-cv-03679 JSW 010073-11 275266 V1 -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: December 1, 2008. HAGENS BERMAN SOBOL SHAPIRO LLP /s/ Jeff D. Friedman JEFF D. FRIEDMAN Steve W. Berman Shana E. Scarlett (217895) HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, California 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 steve@hbsslaw.com jefff@hbsslaw.com shanas@hbsslaw.com Mark Chavez (90858) Nance F. Becker (99292) CHAVEZ & GERTLER LLP 42 Miller Avenue Mill Valley, CA 94941 Telephone: (415) 388-5599 Facsimile: (415) 381-5572 mark@chavezgerler.com nance@chavezgerler.com Peter Fredman (189097) LAW OFFICES OF PETER B. FREDMAN 1917 Carleton Street Berkeley, CA 94707 Telephone: (510) 486-8739 Facsimile: (510) 486-8739 peterfredman@sbcglobal.net Attorneys for Plaintiffs DATED: December 1, 2008. MUNGER, TOLLES & OLSON LLP /s/ Hojoon Hwang HOJOON HWANG 560 Mission St., 27th Floor San Francisco, CA 94105-2907 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Hojoon.Hwang@mto.com Attorneys for Verizon STIP. AND [PROP.] ORDER RE THIRD AMENDED COMPL. 07-cv-03679 JSW 010073-11 275266 V1 -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Dated: December __, 2008 Fact discovery cut-off: Expert discovery cut-off: Dispositive motions to be filed: Hearing on dispositive motions: Pretrial conference: Trial: [PROPOSED] ORDER Good cause appearing, the Court hereby approves the parties' stipulation and orders that: Plaintiffs may file their Third Amended Complaint in this action, which shall hereafter be known as Ruwe et al. v. Verizon Wireless. Defendant may file its motion to dismiss or otherwise respond to the Third Amended Complaint on or before January 23, 2009. Plaintiffs shall have until February 13, 2009 to file their opposition to any motion which Defendant may file, and Defendant shall file its reply by February 27, 2009. The Court reserves March 20, 2009 for hearing on the motion. The time for Plaintiffs to file their motion for class certification is extended. Plaintiffs shall have up to sixty (60) days after the Court issues its decision on the motion to dismiss to file their opening brief in support of class certification. Defendant shall file its opposition to the motion within sixty (60) days of the motion being filed, and Plaintiffs shall file their reply within thirty (30) days thereafter. All discovery and dispositive motion deadlines, as well as the date for the pretrial conference and the trial. The new dates are as follows: October 16, 2009 November 27, 2009 December 18, 2009 January 29, 2010 April 14, 2010 May 3, 2010 April 19, 2010 at 2:00 p.m. May 10, 2010 at 8:00 a.m. Hon. Jeffrey S. White U.S. District Court Judge STIP. AND [PROP.] ORDER RE THIRD AMENDED COMPL. 07-cv-03679 JSW 010073-11 275266 V1 -6-

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