Cats and Dogs Animal Hospital, Inc. v. Yelp! Inc.

Filing 15

EX PARTE APPLICATION to Consolidate Cases, as to 10-01578, filed by defendant Yelp! Inc.. (Attachments: # 1 Exhibit Exhibit 1 to Ex Parte Application, # 2 Declaration Declaration of M. Brown, # 3 Exhibit Exhibits A-H to the Declaration of M. Brown, # 4 Proposed Order Proposed Order, # 5 Disclosure Statement as to Interested Parties)(Brown, Matthew)

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COOLEY GODWARD KRONISH LLP MICHAEL G. RHODES (116127) ([e-mail]) MATTHEW D. BROWN (196972) ([e-mail]) BENJAMIN KLEINE (257225) ([e-mail]) 101 California Street 5th Floor San Francisco, CA 94111-5800 Telephone: [phone] Facsimile: [phone] COOLEY GODWARD KRONISH LLP SARAH R. BOOT (253658) ([e-mail]) 4401 Eastgate Mall San Diego, CA 92121-1909 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant YELP! INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION CATS AND DOGS ANIMAL HOSPITAL, INC.,et al., on behalf of itself and all others similarly situated, Plaintiffs, v. YELP! INC., Defendant. CHRISTINE LaPAUSKY d/b/a D'AMES DAY SPA, on behalf of herself and all others similarly situated, v. YELP! INC., Defendant.
1.
DEF. YELP'S EX PARTE APPLICATION CASE NOS. CV 10-01340 & 01578 VBF (SSX)

Case No. CV 10-01340 VBF(SSx) DEFENDANT YELP! INC.'S EX PARTE APPLICATION TO CONSOLIDATE RELATED CASES FOR ALL PURPOSES AND TO SET DATES FOR CONSOLIDATED AMENDED COMPLAINT, RESPONSIVE PLEADING, AND JOINT SCHEDULING CONFERENCE Judge: Hon. Valerie Baker Fairbank Case No. CV 10-01578 VBF (SSx)

Plaintiffs,

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OVERVIEW AND REQUEST FOR RELIEF Defendant Yelp! Inc. ("Yelp") brings this ex parte application to consolidate the two above-captioned putative class actions1 for all purposes, and to set dates for the filing of a consolidated amended complaint, responsive pleading, and joint scheduling conference. All parties in these two cases--Plaintiffs in Cats and Dogs, Plaintiff in LaPausky, and Yelp ("the Parties")--agree that the cases should be consolidated. (See Declaration of Matthew D. Brown, ("Brown Decl.") ¶¶ 3, 7, Exs. B, E.) The cases have already been designated as related by this Court's Order dated March 12, 2010. After meeting and conferring, the Parties have not been able to agree on how to proceed once the cases are consolidated. Specifically, the Parties do not agree as to whether a consolidated amended complaint should be filed or to the timing of Yelp's responsive pleading. Plaintiffs also appear not to agree on who should be designated as lead counsel. Both Yelp and Plaintiff in LaPausky believe that the most appropriate course after consolidation is for all Plaintiffs to file a single consolidated and superseding amended complaint, and for Yelp to file a single, responsive pleading. Both Yelp and Plaintiff in LaPausky also believe that the case schedule in the coming weeks should be sequenced logically to allow sufficient time for consolidation, orderly preparation of the post-consolidation complaint and responsive pleading, and resolution of the lead counsel issue, before attempting to meet and confer on Rule 26 issues and begin discovery.

1

Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., No. CV 10-01340-VBF (SSx) (C.D. Cal. filed Feb. 25, 2010) ("Cats & Dogs") and Christine LaPausky d/b/a D'ames Day Spa v. Yelp! Inc., No. CV 10-01578-VBF (SSx) (C.D. Cal. filed Mar. 3, 2010) ("LaPausky").
2.
DEF. YELP'S EX PARTE APPLICATION CASE NOS. CV 10-01340 & 01578 VBF (SSX)

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Accordingly, Yelp now seeks an Order from this Court providing the following relief: 1. Pending the resolution of this ex parte application, Yelp shall be relieved of any obligation it would otherwise have to respond to the complaints currently on file in each case. 2. 3. 4. The Cats and Dogs and LaPausky cases shall be consolidated for all purposes. Plaintiffs shall file a consolidated and superseding amended complaint 30 days after the Court enters its order granting consolidation. Yelp shall be relieved of the obligation of filing separate responsive pleadings to the complaint in each case and instead Yelp shall file a single responsive pleading to the consolidated amended complaint 30 days after it is filed.2 5. The Scheduling Conference currently set for April 26, 2010 at 8:30 a.m. shall be taken off calendar and the Parties shall be relieved of their obligations in connection with the April 26 Scheduling Conference, including preparation of the Joint Rule 26(f) Report currently due April 12. 6. The joint Scheduling Conference shall be scheduled for a new date, at least 30 days after Yelp files its responsive pleading(s).

2

If the Court were to deny consolidation despite the agreement of the Parties, Yelp requests an Order providing that responses to the complaint in each case shall be filed within 30 days after entry of the Court's Order.
3.
DEF. YELP'S EX PARTE APPLICATION CASE NOS. CV 10-01340 & 01578 VBF (SSX)

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PLAINTIFFS' POSITIONS ON THIS APPLICATION Plaintiff in LaPausky stipulates to consolidation as well as to all other relief requested above. (Brown Decl. ¶ 3, Ex. B.) Plaintiffs in Cats and Dogs agree to consolidation but will likely oppose the other relief requested in this application. (Id. at ¶ 7, Ex. E.) No party has requested a hearing. SUMMARY OF MEET-AND-CONFER EFFORTS AND NOTICE In accordance with Local Rule 7-3, Yelp first discussed consolidation and requested a stipulation from the Cats and Dogs Plaintiffs on March 10, but Plaintiffs refused to stipulate and said they opposed consolidation. Yelp asked for a 30-day extension for its response to the Cats and Dogs complaint while the consolidation issues were sorted out; the Cats and Dogs Plaintiffs refused, and instead granted a 14-day extension. (Brown Decl. ¶ 2, Ex. A.) On March 11, Yelp conferred with Plaintiff in LaPausky, who agreed that the cases should be consolidated and that a consolidated amended complaint should be filed thereafter. (Id. at ¶ 3.) Yelp and Plaintiff in LaPausky subsequently entered a stipulation to this effect and also agreed on the other relief requested in this application. (Id., Ex. B.) Plaintiff in LaPausky granted Yelp's request for a 30-day extension for its response to the LaPausky complaint in light of the as-yetunresolved consolidation issues. (Id. at ¶ 4, Ex. C.) Pursuant to Local Rule 7-19,3 on March 18, counsel for Yelp met with counsel for Cats and Dogs Plaintiffs and informed them that Yelp intended to file both a motion to consolidate and an ex parte application seeking the aboverequested relief on March 22 or 23, and that Plaintiff in LaPausky would be stipulating to the relief requested in both. (Id. at ¶ 5.) In light of the agreement of the Plaintiff in LaPausky, Yelp asked whether Cats and Dogs Plaintiffs would reconsider their refusal to stipulate to consolidation and the filing of a consolidated
3

In accordance with L. R. 7-19, Exhibit 1 to this Ex Parte Application contains the names, addresses, telephone numbers, and email addresses of opposing counsel.
4.
DEF. YELP'S EX PARTE APPLICATION CASE NOS. CV 10-01340 & 01578 VBF (SSX)

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amended complaint. Cats and Dogs Plaintiffs stated they would consider this request. (Brown Decl. ¶ 5.) On March 22, counsel for Yelp emailed counsel for Cats and Dogs Plaintiffs, reiterated this request, and included in the text of the email the specific relief Yelp intended to seek in both the motion and the ex parte application. (Id. at ¶ 6, Ex. D.) In accordance with Local Rule 7-19.1 and this Court's Standing Order, Yelp informed Plaintiffs that they will have 24 hours to oppose its ex parte application and that Yelp did not intend to request a hearing. (Id.) Counsel for Cats and Dogs Plaintiffs responded via email stating his clients' agreement that the two cases should be consolidated. (Id. at ¶ 7, Ex. E.) He also stated that, rather than filing a consolidated amended complaint, both counsel in Cats and Dogs and counsel in LaPausky favored deeming the First Amended Complaint ("FAC") in Cats and Dogs as the consolidated complaint. Counsel for Plaintiff in LaPausky, however, was not included on this email. (Id.) Counsel for Yelp contacted counsel for Plaintiff in LaPausky and discovered that he had not agreed to deem the Cats and Dogs First Amended Complaint as the consolidated complaint. (Id. at ¶ 8.) Yelp confronted Cats and Dogs counsel about this disparity, and Cats and Dogs represented its intention to file its own ex parte application seeking the relief to which LaPausky counsel would not stipulate (designation of the Cats and Dogs FAC as the consolidated complaint) and seeking appointment as interim lead counsel. (Id. at ¶¶ 9-10, Exs. F, G.) Yelp's counsel made clear that it could not agree to treat the Cats and Dogs FAC as the consolidated complaint in the absence of an express stipulation by the plaintiffs in both cases. (Id. at ¶ 11, Ex. H.) Because all plaintiffs do not agree to that approach, Yelp's position is that a consolidated amended complaint should be filed. (Id.) In fact, counsel in LaPausky agrees with Yelp that a consolidated amended complaint should be filed, as memorialized in a Stipulation filed herewith. (Id. at ¶ 3, Ex. B.)
5.
DEF. YELP'S EX PARTE APPLICATION CASE NOS. CV 10-01340 & 01578 VBF (SSX)

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POINTS AND AUTHORITIES Consistent with the Parties' unanimous agreement, it is appropriate for the Court to consolidate the Cats and Dogs and LaPausky cases for all purposes. The cases present common issues of law and fact, and consolidation will promote the interests of justice, judicial economy, and efficiency. See Fed. R. Civ. P. 42(a)(2); Burnett v. Rowzee, Nos. SACV07-641 DOC (ANx), et al., 2007 WL 4191991, at *2 (C.D. Cal. Nov. 26, 2007) ("The threshold issue [in determining consolidation] is whether the two proceedings involve a common party and common issues of fact or law."); Huene v. U.S., 743 F.2d 703, 704 (9th Cir. 1984) (While "exercising its broad discretion to order consolidation," a district court "weighs the saving of time and effort of consolidation would produce against any inconvenience, delay, or expense that it would cause."). Among other considerations, if these cases were not consolidated and instead proceeded separately, duplicative discovery and motion practice would force Yelp to expend significant extra efforts and costs, and this Court would expend unnecessary time and effort presiding over duplicative motions to dismiss, class certification proceedings, discovery matters, and other motions and proceedings. Upon consolidating these two cases, the Court has the power to order Plaintiffs to file a consolidated amended complaint. See Fed. R. Civ. P. 42(a)(3); In re Equity Funding Co. of Am. Sec. Litig., 416 F. Supp. 161, 176 (C.D. Cal. 1976) (court has power to order consolidated pleadings where it would tend to avoid unnecessary cost or delay and would not cause serious prejudice to a party's rights). Both Yelp and Plaintiff in LaPausky agree that the most appropriate course after consolidation in this case is for all Plaintiffs to file a single consolidated and superseding amended complaint, and for Yelp to file a single, responsive pleading. It is a common procedure in consolidated class actions because having one coherent pleading provides clarity and reduces burdens on both the Court and the parties. "As a management tool for complex litigation, the consolidated complaint has been
6.
DEF. YELP'S EX PARTE APPLICATION CASE NOS. CV 10-01340 & 01578 VBF (SSX)

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found to have significant advantages." 8-42 Moore's Federal Practice ­ Civil § 42.13(5)(a) ( 2010) (identifying certain advantages). See also In re Equity Funding, 416 F. Supp. at 176 (finding that a consolidated complaint avoided unnecessary costs and delay, allowed the court to receive briefing and hear argument directed to one coherent pleading, made consideration of class action issues considerably easier, lessened the burdens of discovery management, and made clerical and administrative matters much less burdensome). Yelp and Plaintiff in LaPausky also have stipulated to the remainder of the above-requested ex parte relief, which is well within the Court's inherent case management authority. Both parties believe that the case schedule in the coming weeks should be sequenced logically to allow sufficient time for consolidation, orderly preparation of the post-consolidation complaint and responsive pleading, and resolution of the lead counsel issue (which Yelp understands is likely to be contested), before attempting to meet and confer on Rule 26 issues, prepare a joint Rule 26(f) report, and begin discovery. This request is made in the interest of orderly case management, not for unwarranted delay, and it would cause no prejudice to any party. On the contrary, there is substantial risk of confusion and prejudice if the parties must attempt to carry out their Rule 26 obligations and engage in discovery before the operative pleadings have been prepared and filed and before lead counsel has been designated.

7.

DEF. YELP'S EX PARTE APPLICATION CASE NOS. CV 10-01340 & 01578 VBF (SSX)

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C ONCLUSION Yelp respectfully requests that this Court grant its ex parte application in its entirety.

Dated:

March 24, 2010

COOLEY GODWARD KRONISH LLP MICHAEL G. RHODES (116127) MATTHEW D. BROWN (196972) BENJAMIN KLEINE (257225) SARAH R. BOOT (253658) /s/ Matthew D. Brown Matthew D. Brown (196972) Attorneys for Defendant YELP! INC.

8.

DEF. YELP'S EX PARTE APPLICATION CASE NOS. CV 10-01340 & 01578 VBF (SSX)