Intermec Technologies Corp. v. Palm, Inc.

Filing 97

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Intermec Technologies Corp. v. Palm, Inc. Doc. 97 1 JONATHAN M. JACOBSON, State Bar No. 1350495 (N.Y.) WILSON SONSINI GOODRICH & ROSATI, P.C. 2 1301 Avenue of the Americas 40th Floor 3 New York, NY 10019 4 Tel.: (212) 999-5800 Fax: (212) 999-5899 5 Email: jjacobson@wsgr.com 6 KEITH E. EGGLETON, State Bar No. 159842 (CA) WILSON SONSINI GOODRICH & ROSATI, P.C. 7 650 Page Mill Road 8 Palo Alto, Ca 94304-1050 Tel: (650) 493-9300 9 Fax: (650) 565-5100 10 Attorneys for Defendant Netflix, Inc. 11 Neal Manne 12 SUSMAN GODFREY LLP 1000 Louisiana Street, Suite 5100 13 Houston, Texas 77002 Tel: (713) 651-9366 14 Fax: (713) 654-6666 nmanne@susmangodfrey.com 15 rhess@susmangodfrey.com 16 Counsel for Defendants Wal-Mart Stores, Inc, et al. 17 [Additional counsel on signature page] 18 19 20 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 21 Andrea Resnick et al. v. Walmart.com, et al. (Case No. C 09-0002 PJH) 22 Michael O'Connor v. Walmart.com, et al. 23 (Case No. C 09-0096 PJH) Sarah Endzweig v. Walmart.com, et al. 24 (Case No. C 09-0111 PJH) Christopher Schmitz v. Walmart.com, et al. 25 (Case No. C 09-0116 PJH) 26 Scott Lynch, et al. v. Walmart.com, et al. (Case No. C 09-0138 PJH) 27 Jonathan Groce, et al. v. Netflix, Inc., et al. (Case No. C 09-0139 PJH) 28 Related Case File No. C 09-0002 PJH DEFENDANTS' MOTION FOR ADMINISTRATIVE RELIEF TO CONTINUE CASE MANAGEMENT CONFERENCE AND POSTPONE FILING OF JOINT CASE MANAGEMENT STATEMENT DEFENDANTS' MOTION FOR ADMINISTRATIVE RELIEF TO CONTINUE CASE MANAGEMENT CONFERENCE AND POSTPONE FILING OF JOINT CASE MANAGEMENT STATEMENT Dockets.Justia.com 1 Liza Sivek v. Walmart.com, et al. (Case No. C 09-0156 PJH) 2 Armond Faris v. Netflix, Inc., et al. (Case No. C 09-0180 PJH) 3 Suzanne Slobodin v. Netflix, Inc., et al. 4 (Case No. C 09-0225 PJH) Katherine Anthony, et al. v. Walmart.com, et al. 5 (Case No. C 09-0236 PJH) Melanie Polk-Stamps v. Netflix, Inc., et al. 6 (Case No. C 09-0244 PJH) Richard Sheeler, Jr. v. Walmart.com, et al. 7 (Case No. C 09-0274 PJH) 8 Cathleen Chapman v. Netflix, Inc., et al. (Case No. C 09-0294 PJH) 9 Michael Orozco v. Netflix, Inc., et al. (Case No. C 09-0297 PJH) 10 Linda Landels, et al. v. Netflix, Inc., et al. (Case No. C 09-0340 PJH) 11 Sarah Grime v. Netflix, Inc., et al. 12 (Case No. C 09-0349 PJH) Douglas Meyer v. Walmart.com, et al. 13 (Case No. C 09-0361 PJH) Laura Randall v. Walmart.com, et al. 14 (Case No. C 09-0368 PJH) Frank Hirsch v. Netflix, Inc., et al. 15 (Case No. C 09-0375 PJH) 16 Melanie Miscioscia v. Netflix, Inc., et al. (Case No. C 09-0377 PJH) 17 James Chatelain v. Netflix, Inc., et al. (Case No. C 09-0391 PJH) 18 Patras v. Netflix, Inc., et al. (Case No. C 09-00378 PJH) 19 Weiner v. Walmart.com USA LLC, et al. 20 (Case No. C 09-00398 PJH) Millrood v. Walmart.com USA LLC, et al. 21 (Case No. C 09-00399 PJH) Kober v. Walmart.com USA LLC, et al. 22 (Case No. C 09-00400 PJH) 23 Lacabe v. Walmart.com USA LLC, et al. (Case No. C 09-00402 PJH) 24 Roy v. Netflix, Inc., et al. (Case No. C 09-00434 PJH) 25 Bruno, et al. v. Walmart.com USA LLC, et al. (Case No. C 09-00445 PJH) 26 Zaker v. Netflix, Inc., et al. 27 (Case No. C 09-00447 PJH) Parikh v. Netflix, Inc., et al. 28 (Case No. C 09-00496 PJH) DEFENDANTS' MOTION FOR ADMINISTRATIVE RELIEF TO CONTINUE CASE MANAGEMENT CONFERENCE AND POSTPONE FILING OF JOINT CASE MANAGEMENT STATEMENT 1 Johnson v. Walmart.com USA LLC, et al. (Case No. C 09-00553 PJH) 2 Gannon v. Walmart.com USA LLC, et al. (Case No. C 09-00554 PJH) 3 Williams v. Netflix, Inc., et al. 4 (Case No. C 09-00678 PJH) 5 Defendants Netflix, Inc., Walmart.com USA LLC, and Wal-Mart Stores, Inc. respectfully 6 request that the Court (1) continue the Case Management Conference currently scheduled for April 9, 7 2009, (2) postpone the parties' Rule 26(f) obligations, and (3) postpone the deadline for filing a Joint 8 Case Management Statement currently due on April 2, 2009. 9 On March 26, 2009, the Judicial Panel on Multidistrict Litigation (the "MDL Panel") will 10 hear competing requests to consolidate and transfer these and numerous other related cases to one of 11 at least nine different venues. No one knows, at this time, where the cases will eventually be 12 consolidated or which counsel will be designated lead counsel for the numerous Plaintiffs. 13 Defendants respectfully submit that proceedings in this Court should be adjourned for a brief period 14 of time until the cases have been centralized by the MDL Panel in a single court and lead counsel 15 have been appointed to represent the Plaintiffs in the fifty-six cases that are currently pending. The 16 requested adjournment is well within this Court's discretion, would be limited in scope and duration, 17 and, without prejudice to the Plaintiffs, would save the Court, the parties, and their counsel 18 significant time and resources. An adjournment is the common sense and practical approach under 19 the circumstances. 20 21 BACKGROUND There are presently thirty-three related antitrust cases, filed as putative class actions, pending 22 in this Court against Defendants (collectively, the "California Cases"). Eighteen additional cases, 23 naming the same Defendants and proposing the same putative class, are pending in fifteen other 24 federal district courts throughout the country. (Schedule of Related Cases, Ex A.) There are also five 25 state cases filed in California and Florida that are virtually identical to the various federal cases; of 26 these, the four California state cases have recently been removed by Walmart.com to this Court, and 27 the one Florida state case will soon be removed to the United States District Court for the Middle 28 District of Florida. 1 DEFENDANTS' MOTION FOR ADMINISTRATIVE RELIEF TO CONTINUE CASE MANAGEMENT CONFERENCE AND POSTPONE FILING OF JOINT CASE MANAGEMENT STATEMENT 1 These more than fifty federal court cases are the subject of multiple competing requests to 2 consolidate and transfer currently pending before the MDL Panel. Certain of the Plaintiffs in the 3 California Cases filed one such motion, requesting that all related cases against Defendants be 4 consolidated and transferred to this Court. The Plaintiffs in the eighteen other federal actions, 5 however, have filed separate responses requesting consolidation and transfer to at least eight other 6 different venues San Juan, PR; East St. Louis, IL; Baton Rouge, LA; Charleston, WV; 7 Birmingham, AL; Brooklyn, NY; Chicago, IL; and Cleveland, OH. The competing MDL positions 8 are scheduled to be heard on March 26, 2009. Defendants Netflix and Wal-Mart both support 9 centralization in this Court, and have so advised the MDL Panel. But no one knows where the cases 10 ultimately will be consolidated. 11 On February 2, 2009, this Court issued a routine order scheduling a Case Management 12 Conference for April 9, 2009, and setting various deadlines for Rule 26(f) conferences and the filing 13 of a Joint Case Management Statement by April 2, 2009. Notwithstanding the uncertainty as to 14 where these cases will ultimately wind up, some of the Plaintiffs' counsel in the California Cases are 15 insisting that these proceedings continue as scheduled and have declined to consent to a brief 16 adjournment until after the MDL Panel has ruled. 17 Proceeding with these pretrial matters in the subset of cases pending in this Court in advance 18 of the MDL ruling will potentially waste the time and resources of the Court, the parties, and their 19 counsel. If the Court were to proceed with case management conferences and statements in the 20 California Cases, the Plaintiffs in the other actions would request similar activity in their cases in 21 order to prevent the appearance before the MDL Panel that the California Cases are progressing more 22 quickly than the other actions, a factor that would favor consolidation and transfer to this Court. The 23 burden then would fall entirely on Defendants to retain multiple sets of counsel and endeavor to 24 avoid conflicting case management orders across multiple jurisdictions over these upcoming weeks. 25 Because the complaints that have been filed to date are likely to be replaced by a single amended 26 consolidated complaint, with the equal likelihood of a single discovery schedule, it would be wasteful 27 and inefficient to require case management conferences, Rule 26(f) meetings, and joint case 28 management statements in multiple jurisdictions before the MDL ruling. A short adjournment of 2 DEFENDANTS' MOTION FOR ADMINISTRATIVE RELIEF TO CONTINUE CASE MANAGEMENT CONFERENCE AND POSTPONE FILING OF JOINT CASE MANAGEMENT STATEMENT 1 these matters, lasting only until resolution of the MDL motions to consolidate and transfer, will 2 prevent this waste without prejudice to any party.1 3 4 5 ARGUMENT This Court possesses the inherent power to adjourn proceedings on its docket. Landis v. 6 North American Co., 299 U.S. 248, 254 (1936). This power is "incidental to the power inherent in 7 every court to control the disposition of the causes on its docket with economy of time and effort for 8 itself, for counsel, and for litigants." Id. There are at least two ways in which an adjournment 9 pending the outcome of motions to consolidate and transfer before the MDL Panel promotes judicial 10 economy: 11 12 13 14 15 First, if this case is consolidated with the other cases . . . and this Court is not assigned by the MDL Panel to preside over the consolidated litigation, this Court will have needlessly expended its energies familiarizing itself with the intricacies of a case that would be heard by another judge. And second, any efforts on behalf of this Court concerning case management will most likely have to be replicated by the judge that is assigned to handle the consolidated litigation if the MDL Panel does not consolidate the . . . cases in this Court. 16 Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1361 (C.D. Cal. 1997). The same is true here. The 17 MDL Panel may transfer all the cases to this Court as the California Cases Plaintiffs have requested, 18 or they could be transferred to any one of at least nine other venues throughout the country to which 19 other Plaintiffs have requested transfer, e.g., San Juan, PR, Brooklyn, NY, Baton Rouge, LA, 20 Charleston, WV, or Birmingham, AL. 21 These savings in judicial resources have prompted a "majority of courts [to] conclude[] that it 22 is often appropriate to adjourn preliminary pretrial proceedings while a motion to transfer and 23 24 25 26 27 28 3 DEFENDANTS' MOTION FOR ADMINISTRATIVE RELIEF TO CONTINUE CASE MANAGEMENT CONFERENCE AND POSTPONE FILING OF JOINT CASE MANAGEMENT STATEMENT 1 Without commenting now on the numerous inaccuracies in the various complaints that have been filed, it is undisputed that the underlying events have been matters of public record for almost four full years. Although all parties desire an expeditious resolution of this litigation, there is no emergency that would counsel against the short adjournment Defendants seek. One might suspect that the Plaintiffs' counsel opposed to this adjournment are motivated, at least in part, by a desire to improve their positioning before the MDL Panel and to advance their own cause in the positioning for the lead counsel role in the consolidated cases after the MDL Panel has ruled. 1 consolidate is pending with the MDL Panel." Id. at 1362 (citing American Seafood v. Magnolia 2 Processing, Inc., No. 92-1030, 1992 WL 102762, at *6 (E.D. Penn. May 7, 1992)). That majority 3 includes several courts in the Ninth Circuit. See, e.g., Lyman v. Asbestos Defendants (B*P), No. C 4 07-4240, 2007 WL 2972926, at *3 (N.D. Cal. Oct. 10, 2007) (granting motion to stay pretrial 5 proceedings where it "will likely preserve judicial resources by preventing a duplication of 6 proceedings before this Court and the MDL court, and because the Plaintiffs have not persuasively 7 identified any hardship resulting from such a stay"); Gonzalez v. Merck & Co., No. CV-07-30348 LRS., 2007 WL 2220286, at *2 (E.D. Wash. Aug. 2, 2007) (where MDL decision was pending, court 9 "agree[d] with Defendant Merck and well settled case law that dictates a stay should be granted to 10 promote judicial economy"); Mailblocks, Inc. v. Spam Arrest, LLC, No. CV 03-0077, 2003 WL 11 22319080 at *2-*3 (W.D. Wash. June 9, 2003) ("[l]itigation should be stayed to permit the MDL 12 Panel to decide a motion to consolidate" where the stay would "achieve gains in judicial economy 13 and consistency that outweigh the prejudice the parties would suffer from the delay" and stay could 14 be lifted "as soon as the MDL Panel decides the motion to consolidate"). 15 There are no other pressing motions that this Court need decide, and any adjournment will be 16 relatively short given the proximity of the MDL hearing set for March 26. An adjournment will not 17 prejudice the Plaintiffs in the California Cases in these proceedings, or vis--vis Plaintiffs in related 18 cases against Defendants pending in the many other jurisdictions. None of the courts in the other 19 cases has issued a case management order. However, if this Court were to proceed with preliminary 20 case management now, the Plaintiffs in the non-California Cases would likely request similar 21 activities in order to create a level playing field before the MDL Panel. The inevitable result is that 22 Defendants would be forced to retain counsel and to respond in each of the eight other jurisdictions 23 that are candidates for centralization. The courts in those jurisdictions will waste judicial resources 24 engaging in case management activity that may be mooted by the MDL Panel's ruling. This is 25 precisely the waste, burden and inefficiency the MDL procedure is designed to avoid and prevent. 26 See MANUAL FOR COMPLEX LITIGATION (FOURTH) 22.35 ("A stay pending the Panel's decision can 27 increase efficiency and consistency, particularly when the transferor court believes that a transfer 28 order is likely and when pending motions raise issues likely to be raised in other cases as well."). 4 DEFENDANTS' MOTION FOR ADMINISTRATIVE RELIEF TO CONTINUE CASE MANAGEMENT CONFERENCE AND POSTPONE FILING OF JOINT CASE MANAGEMENT STATEMENT 1 2 CONCLUSION Common sense suggests a brief adjournment of the Case Management Conference and related 3 proceedings until the MDL Panel has ruled. Defendants respectfully request the Court grant their 4 motion for administrative relief. 5 DATED: March 11, 2009 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BY: Jonathan M. Jacobson Jonathan M. Jacobson Sara Ciarelli Walsh 1301 Avenue of the Americas 40th Floor New York, NY 10019 Tel.: (212) 497-7700 Fax: (212) 999-5899 Keith E. Eggleton 650 Page Mill Road Palo Alto, Ca 94304-1050 Tel: (650) 493-9300 Fax: (650) 565-5100 Scott Andrew Sher 1700 K Street, NW, Fifth Floor Washington, DC 20006 Tel: (202) 973-8800 Fax: (202) 973-8899 Counsel for Defendant Netflix, Inc. Neal Manne Richard Wolf Hess SUSMAN GODFREY LLP 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Tel: (713) 651-9366 Fax: (713) 654-6666 5 DEFENDANTS' MOTION FOR ADMINISTRATIVE RELIEF TO CONTINUE CASE MANAGEMENT CONFERENCE AND POSTPONE FILING OF JOINT CASE MANAGEMENT STATEMENT Respectfully Submitted, WILSON SONSINI GOODRICH & ROSATI, PC 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 Stephen Edward Morrissey Kathryn Parsons Hoek Marc M. Seltzer SUSMAN GODFREY LLP 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067-6029 Tel.: 310-789-3100 Fax: 310-789-3150 Counsel for Defendant Wal-Mart Stores, Inc. and Walmart.com USA LLC 6 DEFENDANTS' MOTION FOR ADMINISTRATIVE RELIEF TO CONTINUE CASE MANAGEMENT CONFERENCE AND POSTPONE FILING OF JOINT CASE MANAGEMENT STATEMENT 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 16. 18. EXHIBIT A RELATED CASES PENDING IN OTHER JURISIDICTIONS CASE TITLE 1. MaGee v. Netflix, Inc., et al. Michalski, et al. v. Netflix, Inc., et 2. al. Boynton v. Walmart.com USA 3. LLC, et al. Mayer v. Walmart.com USA 4. LLC, et al. 5. Christina v. Netflix, Inc., et al. 6. Hotard v. Netflix, Inc., et al. Levin v. Walmart.com USA LLC, 7. et al. 8. Touchton v. Netflix, Inc., et al. 9. Kopera v. Netflix, Inc., et al. Walters, et al. v. Netflix, Inc., et 10. al. 11. Karatz v. Netflix, Inc., et al. 12. Bowles v. Netflix, Inc., et al. 13. Shafeek v. Netflix, Inc., et al. 14. Wagner v. Netflix, Inc., et al. 15. Jones v. Netflix, Inc., et al. Ortiz-Cardona v. Netflix, Inc., et al. Cleary v. Walmart.com USA LLC, et al. DATE FILED CASE NO. DISTRICT Western District of Washington District of Minnesota District of New Hampshire District of Vermont 1/16/09 2:09-cv-00070 1/23/09 0:09-cv-00158 1/28/09 1:09-cv-00026 1/30/09 1:09-cv-00028 2/2/09 2/3/09 2/5/09 2/6/09 2/6/09 2/9/09 2/9/09 3:09-cv-00059 Middle District of Louisiana 2:09-cv-01938 Eastern District of Louisiana 1:09-cv-00744 2:09-cv-00241 2:09-cv-00242 2:09-cv-00110 1:09-cv-00136 Northern District of Illinois Northern District of Alabama Northern District of Alabama Southern District of West Virginia Southern District of Indiana Middle District of Florida Eastern District of New York Northern District of Ohio Southern District of Illinois District of Puerto Rico Northern District of Illinois 2/12/09 8:09-cv-00250 2/13/09 1:09-cv-00617 2/16/09 3:09-cv-00360 2/17/09 3:09-cv-00131 2/18/09 3:09-cv-01157 3/5/09 1:09-cv-1383 DEFENDANTS' MOTION FOR ADMINISTRATIVE RELIEF TO CONTINUE CASE MANAGEMENT CONFERENCE AND POSTPONE FILING OF JOINT CASE MANAGEMENT STATEMENT

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