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

Filing 53

REPLY in support of MOTION to Consolidate Cases, as to 10cv01578, 26 and to Set Schedule for Filing Consolidated Amended Complaint filed by Defendant Yelp! Inc.. (Brown, Matthew)

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COOLEY LLP MICHAEL G. RHODES (116127) ([e-mail]) MATTHEW D. BROWN (196972) ([e-mail]) BENJAMIN KLEINE (257225) ([e-mail]) SARAH R. BOOT (253658) ([e-mail]) NEHA MARATHE (252304) ([e-mail]) 101 California Street, 5th Floor San Francisco, CA 94111-5800 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. Case No. CV 10-01340 VBF(SSx) DEFENDANT YELP! INC.'S REPLY IN SUPPORT OF 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. Plaintiffs,

DEF. YELP'S REPLY ISO MOTION TO CONSOLIDATE CASE NOS. CV 10-01340 & 01578 VBF (SSX)

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I.

ARGUMENT Yelp has tried since the first call between its counsel and opposing counsel,

on March 10, to reach an agreement on consolidation without the need for motion practice. Counsel for the Cats and Dogs Plaintiffs originally opposed consolidation, and it was not until the eve of Yelp's filing of a motion that Plaintiffs said they agreed to consolidation. Yet, even then, they continued to oppose the filing of a consolidated amended complaint. (Yelp Mot. at 5:14­7:2.) The alternative proposals the Cats and Dogs Plaintiffs have made fail to address Yelp's articulated concerns and fail to provide the recognized benefits of a consolidated amended complaint. By contrast, Plaintiff LaPausky's then-counsel, Mr. Marron, agreed from the beginning that the most appropriate course was to have the cases consolidated and to have all plaintiffs file a consolidated amended complaint. (Yelp Mot. at 5:2126.) Yelp and LaPausky entered a stipulation setting forth that agreement, which was filed with this Court. (Id.; see also Declaration of Matthew D. Brown in Support of Yelp Mot., Ex. B.) Now that counsel for the Cats and Dogs Plaintiffs have replaced Mr. Marron as counsel for LaPausky, it appears (though they have not directly addressed the issue) that they are disavowing part of that stipulation. LaPausky had previously stipulated that a consolidated amended complaint should be filed, yet now the filing on behalf of all plaintiffs takes the position that such a consolidated complaint is "needless[]" (Pltfs' "Non-Opposition" at 1:15-16) and suggests that Yelp's motivation is "to needlessly delay the proceedings" (id. at 2:2-4). It is ironic now to hear Plaintiffs accuse Yelp of being "dilatory" and "wast[ing] the Court's time." (Id. at 1:1-3, 1:20-24.) Although Plaintiffs' filing is styled a "non-opposition" to Yelp's motion, it is, at most, a partial non-opposition (and a partial opposition). In their filing, Plaintiffs first say they agree that the Cats and Dogs and LaPausky cases should be
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DEF. YELP'S REPLY ISO MOTION TO CONSOLIDATE CASE NOS. CV 10-01340 & 01578 VBF (SSX)

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"consolidated for all purposes." (Pltfs' "Non-Opposition" at 1:11-14.) But then they go on to say that the LaPausky case should be stayed. (Id. at 1:16-19, 2:5-10.) As far as we can tell, the net effect of what Plaintiffs propose here is not truly consolidation for all purposes, but is, in reality, a proposal that the Cats and Dogs case be litigated while the LaPausky case is stayed. This is precisely what Yelp is trying to avoid. Yelp wants to make sure that both cases are litigated and resolved in an efficient and consistent manner, and believes that the approach that provides all parties and the Court with the most clarity is a consolidated amended complaint. Plaintiffs make the rather odd statement that if the Court were to order them to file a consolidated and superseding amended complaint, "all plaintiffs will do is refile the [Cats and Dogs] FAC [First Amended Complaint] exactly as it is now, except with the phrase `Consolidated Complaint' on its cover." (Pltfs' "NonOpposition" at 1:20-24; see also id. at 1:25 (referring to "renamed but identical complaint").) That is obviously not what Yelp is requesting. The consolidated and superseding complaint should include all 11 named plaintiffs in both the Cats and Dogs and LaPausky cases, and should also include plaintiff-specific allegations for all named plaintiffs. Proceeding with the Cats and Dogs complaint as it stands now, but calling it the "consolidated" complaint, would not incorporate all plaintiffs and their claims and allegations into the litigation, nor would it provide clarity on exactly what claims and allegations are being pressed against Yelp. (See also Yelp Mot. at 11:3-19 (citing authorities discussing advantages of consolidated complaint).) As discussed in Yelp's papers in support of its motion to transfer the Cats and Dogs and LaPausky cases to the Northern District of California, there is also a third related case against Yelp which is pending in the Northern District (Boris Y. Levitt v. Yelp! Inc., No. CGC-10-497777). Yelp's view is that all three cases should be consolidated and that the most appropriate venue is the Northern District. The plaintiff in the Northern District case, Levitt, has said that he will stipulate to
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DEF. YELP'S REPLY ISO MOTION TO CONSOLIDATE CASE NOS. CV 10-01340 & 01578 VBF (SSX)

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the consolidation of all three cases if Cats and Dogs and LaPausky are transferred to the Northern District. (Declaration of Matthew D. Brown in Support of Defendant Yelp! Inc.'s Reply in Support of Motion to Transfer Venue (28 U.S.C. § 1404(a)), filed Apr. 26, 2010, ¶¶ 2-4.) II. CONCLUSION For the reasons set forth herein and in Yelp's moving papers, Yelp respectfully requests that this motion be granted. Dated: April 26, 2010 COOLEY LLP /s/ Matthew D. Brown Matthew D. Brown (196972) Attorneys for Defendant YELP! INC.

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DEF. YELP'S REPLY ISO MOTION TO CONSOLIDATE CASE NOS. CV 10-01340 & 01578 VBF (SSX)