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

Filing 30

NOTICE OF NON-OPPOSITION to MOTION to Consolidate Cases, as to 10cv01578, 26 filed by Plaintiff Cats and Dogs Animal Hospital, Inc.. (Attachments: # 1 Proposed Order on Consolidation)(Weston, Gregory)

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1 THE WESTON FIRM 2 JACK FITZGERALD (257370) 3 888 Turquoise Street San Diego, CA 92109 4 Telephone: (858) 488-1672 Facsimile: (480) 247-4553 5 6 GREGORY S. WESTON (239944) 7 BECK & LEE BUSINESS TRIAL LAWYERS 8 ELIZABETH LEE BECK (233742) 9 28 West Flagler Street, Suite 555 10 Telephone: (305) 789-0072 11 Facsimile: (786) 664-3334 12 13 Attorneys for Plaintiffs and the Proposed Classes Miami, FL 33130 JARED H. BECK (233743) 14 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Case No: 2:10-cv-01340-VBF-SS PLAINTIFFS' NON-OPPOSITION TO DEFENDANT YELP! INC.'S MOTION TO CONSOLIDATE Hearing Date: May 10, 2010 Hearing Time: 1:30 p.m. Judge: Hon. Valerie Baker Fairbank Defendant. Case No. 2:10-cv-01578-VBF-SS 15 CATS AND DOGS ANIMAL HOSPITAL, 16 INC., et al., on behalf of themselves and all 17 18 19 20 21 others similarly situated, v. YELP! INC., Plaintiffs, 22 CHRISTINE LaPAUSKY d/b/a D'AMES DAY SPA, on behalf of herself and all 23 others similarly situated, 24 25 27 28 v. Plaintiff, 26 YELP! INC., Defendant. Case Nos. 2:10-cv-01340; 2:10-01578 VBF (SS) PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION TO CONSOLIDATE 1 Defendant Yelp! Inc. ("Yelp") wastes the Court's time with the present 2 motion to consolidate when Plaintiffs have repeatedly notified counsel for Yelp 3 they are willing to stipulate to consolidation. 4 On May 16, counsel for Plaintiffs in Cats and Dogs met with, and were 5 retained by, the sole Plaintiff in the later-filed LaPausky copycat action, filed a 6 notice of substitution of counsel, and as counsel for Plaintiffs in both actions again 7 sought to stipulate to consolidation. Yelp refused to agree to stipulation over the 8 phone that day, and has yet to respond to a proposed stipulation sent via e-mail the 9 next day. 10 11 Thus, Plaintiffs favor the first part of Yelp's proposed order, that: 1. The following related cases shall be consolidated for all purposes: Cats and 12 Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., No. CV 10-01340-VBF(SSx) (C.D. 13 Cal. filed Feb. 23, 2010); and Christine LaPausky d/b/a D'ames Day Spa v. Yelp! 14 Inc., No. CV 10-01578-VBF(SSx) (C.D. Cal. filed Mar. 3, 2010). 15 Where the parties disagree is whether Plaintiffs needlessly must file a 16 "consolidated complaint." Plaintiffs' position is that the extensive, detailed Cats 17 and Dogs First Amended Complaint ("FAC") should serve as the consolidated 18 complaint, and the LaPausky Complaint, which is a verbatim copycat of the initial 19 Cats and Dogs Complaint, be stayed. 20 If the Court were to ignore the maxim that "plaintiff is the master of the 21 complaint"1 and accede to Yelp's dilatory request by ordering Plaintiffs to "file a 22 consolidated and superseding amended complaint within 14 days" all plaintiffs will 23 do is refile the FAC exactly as it is now, except with the phrase "Consolidated 24 Complaint" on its cover. Yelp would then, according to its proposed order, have an 25 additional 21 days to respond to the renamed but identical complaint. 26 27 Holmes Group, Inc. v. Vornado Air Circulation Sys., 535 U.S. 826, 832 (2002) 28 (citation omitted) 1 Case Nos. 2:10-cv-01340; 2:10-01578 VBF (SS) PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION TO CONSOLIDATE 1 1 Yelp's motion to dismiss the FAC has been fully briefed and is ready for 2 hearing in two weeks. Given that Plaintiffs are happy to stay the LaPausky action, 3 Yelp's true motive is not to avoid answering multiple pleadings, but to needlessly 4 delay the proceedings. 5 Plaintiffs respectfully request the Court adopt their alternative proposed 6 order on consolidation, which incorporates the first part of Yelp's proposed order 7 on consolidation, but rather than needlessly asking Plaintiffs to rename their FAC 8 and resetting the scheduled hearing, instead simply stays the LaPausky action, any 9 further tag-along action(s), and deems the FAC the operative consolidated 10 complaint. 11 12 DATED: April 19, 2010 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BECK & LEE BUSINESS TRIAL LAWYERS JARED H. BECK ELIZABETH LEE BECK Courthouse Plaza Building 28 West Flagler Street, Suite 555 Miami, FL 33130 Telephone: 305 789 0072 Facsimile: 786 664 3334 Counsel for Plaintiffs and the Proposed Classes 2 Case Nos. 2:10-cv-01340; 2:10-01578 VBF (SS) PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION TO CONSOLIDATE Respectfully Submitted, /s/Gregory S. Weston Gregory S. Weston THE WESTON FIRM GREGORY S. WESTON JACK FITZGERALD 888 Turquoise Street San Diego, California 92109 Telephone: 858 488 1672 Facsimile: 480 247 4553 I oF sERVrcE I am a residentof the stateof Califomia, over the age of 18 and not a party to 2 I. EvanLee. declare r"t:::tttrcAT' "r J address The WestonFirm, 888 TurquoiseStreet,San is 4 the within action.My business the 5 Diego, Califomia,92109.On April 19,2010,I served following documents: 6 7 8 9 10 1. Plaintiffs' Non-Oppositionto DefendantYelp! Inc.'s Motion to Consolidate by noticeof ElectronicFiling, which is a noticeautomatically generated the by CM/ECF systemat the time the documents listed abovewere filed with this Court,to leadcounsellistedby CM/ECF as"ATTORNEY BE NOTICED." TO I declare underpenaltyof perjuryunderthe laws of the Stateof Californiaand l 1 the United States the foregoingis true and correct. that I2 Executed April 19,2010 in SanDiego,Florida. on 13 14 l5 t6 T7 18 t9 )n 2l 22 ZJ .A ,fb _ -P./ l' A_ EvanLee 25 26 27 28 Case Nos.2:10-cv-01340; 2:10-01578 (SS) VBF CERTIFICATEOF SERVICE

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