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

Filing 26

NOTICE OF MOTION AND MOTION to Consolidate Cases, as to 10cv01578, filed by defendant Yelp! Inc.. Motion set for hearing on 5/10/2010 at 01:30 PM before Judge Valerie Baker Fairbank. (Attachments: # 1 Declaration Brown Decl, # 2 Exhibit Exhs A-H to Brown Decl, # 3 Proposed Order Proposed Order, # 4 Cert of Service)(Brown, Matthew)

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COOLEY GODWARD KRONISH LLP MICHAEL G. RHODES (116127) ([e-mail]) MATTHEW D. BROWN (196972) ([e-mail]) BENJAMIN H. 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 CATS AND DOGS ANIMAL HOSPITAL, INC., et al., on behalf of itself and all others similarly situated, Plaintiffs, v. YELP! INC., Defendant. Case No. CV 10-01340 VBF(SSx) DECLARATION OF MATTHEW D. BROWN IN SUPPORT OF DEFENDANT YELP! INC.'S MOTION TO CONSOLIDATE RELATED CASES FOR ALL PURPOSES AND TO SET SCHEDULE FOR FILING CONSOLIDATED AMENDED COMPLAINT Date: Monday, May 10, 2010 Time: 1:30 p.m. Judge: Hon. Valerie Baker Fairbank Case No. CV 10-01578 VBF (SSx)

CHRISTINE LaPAUSKY d/b/a D'AMES DAY SPA, on behalf of herself and all others similarly situated, v. YELP! INC., Defendant.
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Plaintiffs,

DECLARATION OF MATTHEW D. BROWN ISO DEF. YELP'S MOTION TO CONSOLIDATE CASE NOS. CV 10-01340 & 01578 VBF (SSX)

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I, Matthew D. Brown, hereby declare as follows: 1. I am an attorney duly licensed to practice law in the State of California and am a partner with the firm of Cooley Godward Kronish LLP, counsel of record for Defendant Yelp! Inc. ("Yelp") in this action. I have personal knowledge of the facts set forth herein, except where otherwise stated, and, if called as a witness, I could and would competently testify thereto. 2. In accordance with Local Rule 7-3, I first discussed consolidation and requested a stipulation from counsel for the Cats and Dogs Plaintiffs on March 10, 2010. Plaintiffs refused to stipulate and said they opposed consolidation. I asked for a 30-day extension for Yelp's 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. Attached hereto as Exhibit A is a true and correct copy of the Stipulation between Yelp and Cats and Dogs Plaintiffs to extend Yelp's time to respond to the initial complaint by 14 days. 3. On March 11, 2010, I conferred with counsel for the Plaintiff in LaPausky, who agreed that the cases should be consolidated and that a consolidated amended complaint should be filed thereafter. Yelp and Plaintiff in LaPausky subsequently entered a stipulation to this effect (and also agreed on other relief, which is now moot, such as setting a date for a joint case management conference to occur after the resolution of the consolidation issues). Attached hereto as Exhibit B is a true and correct copy of the Stipulation of Plaintiff Christine LaPausky and Defendant Yelp! Inc. To Consolidate Related Cases For All Purposes and to Set Dates for Consolidated Amended Complaint, Responsive Pleading, and Joint Scheduling Conference. 4. Subsequently, Plaintiff in LaPausky also granted Yelp's request for a 30-day extension for its response to the LaPausky complaint in light of the as-yetunresolved consolidation issues. Attached hereto as Exhibit C is a true and correct
DECLARATION OF MATTHEW D. BROWN ISO DEF. YELP'S MOTION TO CONSOLIDATE CASE NOS. CV 10-01340 & 01578 VBF (SSX)

2.

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copy of the Stipulation between Yelp and Plaintiff LaPausky to extend Yelp's time to respond to the initial complaint by 30 days. 5. On March 18, 2010, I met with counsel for Cats and Dogs Plaintiffs and informed them that on March 22 or 23, Yelp intended to file both a motion to consolidate and an ex parte application seeking a consolidated amended complaint and requesting that Yelp only be required to file a single response to the consolidated amended complaint, among other things. I also stated that Plaintiff in LaPausky would be stipulating to the relief requested in both the motion to consolidate and the ex parte application. In light of the agreement of the Plaintiff in LaPausky, I asked whether Cats and Dogs Plaintiffs would reconsider their refusal to stipulate to consolidation and the filing of a consolidated amended complaint. Cats and Dogs Plaintiffs stated they would consider this request. 6. On March 22, 2010, I 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. Attached hereto as Exhibit D is a true and correct copy of my March 22, 2010, 12:01 p.m. email to counsel for Cats and Dogs Plaintiffs. 7. Counsel for Cats and Dogs Plaintiffs replied via email stating his clients' agreement that the two cases should be consolidated. 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. Attached hereto as Exhibit E is a true and correct copy of the March 22, 2010, 2:13 p.m. email from counsel for Cats and Dogs Plaintiffs to me. 8. After receiving this email, I called counsel for Plaintiff in LaPausky and discovered that he had not agreed to deem the Cats and Dogs FAC as the consolidated complaint.
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DECLARATION OF MATTHEW D. BROWN ISO DEF. YELP'S MOTION TO CONSOLIDATE CASE NOS. CV 10-01340 & 01578 VBF (SSX)

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9.

I then replied to Cats and Dogs counsel by email. Attached hereto as

Exhibit F is a true and correct copy of my March 22, 2010, 5:34 p.m. email to counsel for Cats and Dogs Plaintiffs. 10. 11. Attached hereto as Exhibit G is a true and correct copy of the March Attached hereto as Exhibit H is a true and correct copy my March 22, 22, 2010, 7:07 p.m. email from counsel for Cats and Dogs Plaintiffs to me. 2010, 10:53 p.m. email to counsel for Cats and Dogs Plaintiffs. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Francisco, California. ___/s/ Matthew D. Brown__ Matthew D. Brown Executed this 12th day of April 2010 at San

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DECLARATION OF MATTHEW D. BROWN ISO DEF. YELP'S MOTION TO CONSOLIDATE CASE NOS. CV 10-01340 & 01578 VBF (SSX)