Ahaesy v. Comcast Corporation et al

Filing 9

STIPULATION AND ORDER. Signed by Magistrate Judge Bernard Zimmerman on 3/9/2009. (bzsec, COURT STAFF) (Filed on 3/10/2009)

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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 Arthur J. Burke (SBN 229589) arthur.burke@dpw.com Rosanna G. Lipscomb (SBN 251080) rosanna.lipscomb@dpw.com DAVIS POLK & WARDWELL 1600 El Camino Real Menlo Park, California 94025 Telephone: (650) 752-2000 Facsimile: (650) 752-2111 Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA KEVIN AHAESY, On Behalf of Himself And ) All Others Similarly Situated, ) ) Plaintiff, ) ) v. ) ) COMCAST CORPORATION, et al. ) ) Defendants. ) ) ) CASE NO. 3:09-CV-00612-BZ STIPULATION AND [PROPOSED] ORDER REGARDING EXTENSION OF TIME AND STAY OF PRETRIAL PROCEEDINGS PENDING RULING BY THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION STIPULATION AND [PROPOSED] ORDER REGARDING EXTENSION OF TIME AND STAY OF PRETRIAL PROCEEDINGS PENDING RULING BY THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION, 3:09-CV-00612-BZ 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 Plaintiff Kevin Ahaesy ("Plaintiff") and Defendants Comcast Corporation, Comcast Holdings Corporation, Comcast Cable Communications, LLC (misidentified in the Complaint as Comcast Cable Communications, Inc.) and Comcast Cable Communications Holdings, Inc. (collectively, "Comcast"), respectfully request that the Court enter an Order extending the time by which Comcast must answer or otherwise respond to Plaintiff's Complaint and staying all pretrial proceedings, including all discovery, pending a ruling by the Judicial Panel on Multidistrict Litigation (the "MDL Panel") regarding the consolidation of this action and similar actions to a single district court for coordinated or consolidated pretrial proceedings. As grounds, the parties stipulate as follows: 1. Plaintiff filed a Complaint on February 11, 2009 and served the Complaint and a summons upon Comcast on or about February 17, 2009. Assuming that this constituted effective service, Defendant must answer or otherwise respond by March 9, 2009. 2. The Complaint alleges that Comcast violated Section 1 of the Sherman Act, 15 U.S.C. 1, by "tying" premium cable services to the rental of set-top boxes. The Complaint is styled as a putative class action. 3. There are currently eleven similar class actions pending against Comcast Corporation in seven other federal districts, including the Northern District of Illinois, the Eastern District of Pennsylvania, the Eastern District of California, the Southern District of West Virginia, the Eastern District of Louisiana, the Northern District of Alabama and the District of Minnesota. The complaints in those actions allege that Comcast Corporation has violated Section 1 of the Sherman Act, 15 U.S.C. 1, and, in some instances, state law, by "tying" premium cable services to the rental of set-top boxes. 4. On or about February 17, 2009, counsel for plaintiff in the action pending in the Southern District of West Virginia filed a motion with the MDL Panel to consolidate nine of the actions in a single district court for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. 1407. See Motion of Plaintiff Eric Holt for Transfer and Coordination or Consolidation Pursuant to 28 U.S.C. 1407 (attached hereto as Exhibit A). 1 STIPULATION AND [PROPOSED] ORDER REGARDING EXTENSION OF TIME AND STAY OF PRETRIAL PROCEEDINGS PENDING RULING BY THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION, 3:09-CV-00612-BZ 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 5. On or about February 18, 2009, counsel for plaintiff in one of the actions pending in the Eastern District of Pennsylvania filed a response with the MDL Panel. See Interested Party Response to Plaintiffs' Motions for Transfer and Coordination or Consolidation in the In Re: Comcast Set-Top Television Box Antitrust Litigation (attached hereto as Exhibit B). 6. On or about February 20, 2009, counsel for plaintiffs in two of the actions pending in the Northern District of Illinois filed a motion to consolidate nine of the actions in a single district court for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. 1407. See Plaintiffs Debra L. Koller and Lucas Mays's Motion Pursuant to 28 U.S.C. 1407 to Transfer Actions to the Northern District of Illinois for Coordinated or Consolidated Pretrial Proceedings (attached hereto as Exhibit C). 7. In light of the multiplicity of complaints on file and the pending motions before the MDL Panel, the parties respectfully request that the Court extend the time by which Comcast must answer or otherwise respond to Plaintiff's Complaint until (1) the entry of a scheduling order by the transferee court in the event the MDL Panel grants the pending motions to consolidate or (2) thirty days after service of the MDL Panel's order in the event the MDL Panel denies the pending motions to consolidate. 8. The parties further request that the Court stay all pretrial proceedings, including all discovery and related obligations under Federal Rules of Civil Procedure 16 and 26, applicable Local Rules, the Court's Order Setting Initial Case Management Conference and ADR Deadlines, and the Standing Orders for Magistrate Judge Bernard Zimmerman, until (1) the entry of a scheduling order by the transferee court in the event the MDL Panel grants the pending motions to consolidate or (2) thirty days after service of the MDL Panel's order in the event the MDL Panel denies the pending motions to consolidate. 9. The requested relief will not prejudice either party. However, the parties agree to revisit the terms of this stipulation in the event that Comcast hereafter answers or otherwise responds to a complaint in any of the other eleven class actions referenced herein. 2 STIPULATION AND [PROPOSED] ORDER REGARDING EXTENSION OF TIME AND STAY OF PRETRIAL PROCEEDINGS PENDING RULING BY THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION, CASE NO. 3:09-CV-00612-BZ 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: Dated: WHEREFORE, the parties respectfully request that the Court enter an Order extending the time by which Comcast must answer or otherwise respond to Plaintiff's Complaint and staying all pretrial proceedings, including all discovery, pending a ruling by the MDL Panel. March 9, 2009 Respectfully submitted, By: /s/ Arthur J. Burke Arthur J. Burke Rosanna G. Lipscomb DAVIS POLK & WARDWELL 1600 El Camino Real Menlo Park, CA 94025 (650) 752-2000/(650)752-2111 (fax) Attorneys for Defendants March 9, 2009 Respectfully submitted, By: /s/ Melissa Shapiro Guido Saveri R. Alexander Saveri Cadio Zirpoli Melissa Shapiro SAVERI & SAVERI, INC. 706 Sansome Street San Francisco, CA 94111 (415) 217-6810/(415) 217-6813 (fax) Attorneys for Plaintiff I hereby attest that I have on file written permission to sign this joint statement and report from all parties whose signatures are indicated by a "conformed" signature (/s/) within this efiled document. /s/ Arthur J. Burke 3 STIPULATION AND [PROPOSED] ORDER REGARDING EXTENSION OF TIME AND STAY OF PRETRIAL PROCEEDINGS PENDING RULING BY THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION, CASE NO. 3:09-CV-00612-BZ 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 PURSUANT TO STIPULATION, IT IS SO ORDERED. Dated: March 9, 2009 By: The Honorable Bernard Zimmerman United States Magistrate Judge 4 STIPULATION AND [PROPOSED] ORDER REGARDING EXTENSION OF TIME AND STAY OF PRETRIAL PROCEEDINGS PENDING RULING BY THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION, CASE NO. 3:09-CV-00612-BZ

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