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

Filing 66

Emergency MOTION to Shorten Time Relating to Motion to Compel 30(b)(6) Deposition on Monday, June 21, 2010, and Motion for Sanctions filed by Cats and Dogs Animal Hospital, Inc.. Motion Hearing set for 6/18/2010 09:00 AM. (Attachments: # 1 Declaration of Jared H. Beck in Support of Plaintiffs' Motion to Compel 30(b)(6) Deposition, For Sanctions, and to Shorten Time, # 2 Declaration of Jack Fitzgerald in Support of Plaintiffs' Motion to Compel 30(b)(6) Deposition, For Sanctions, and to Shorten Time, # 3 Proposed Order Granting Motion to Shorten Time)(Fitzgerald, John) (Filed on 6/16/2010)

1 THE WESTON FIRM GREGORY S. WESTON (239944) 2 888 Turquoise Street San Diego, CA 92109 3 Telephone: [phone] Facsimile: [phone] [e-mail] 5 JACK FITZGERALD (257370) 6 2811 Sykes Court Santa Clara, CA 95051 7 Telephone: [phone] [e-mail] 9 BECK & LEE BUSINESS TRIAL LAWYERS JARED H. BECK (233743) 10 ELIZABETH LEE BECK (233742) Courthouse Plaza Building 11 28 West Flagler Street, Suite 555 12 Miami, FL 33130 Telephone: [phone] Facsimile: [phone] [e-mail] 14 [e-mail] 15 16 17 Attorneys for Plaintiffs and the Proposed Classes UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. 3:10-cv-02351 MHP Pleading Type: Class Action Action Filed: February 23, 2010 PLAINTIFFS' NOTICE OF MOTION AND MOTION TO SHORTEN TIME, COMPEL 30(B)(6) DEPOSITION, AND FOR SANCTIONS Judge: The Hon. Marilyn Hall Patel Date: TBD Time: TBD

18 CATS AND DOGS ANIMAL HOSPITAL, INC.; ASTRO APPLIANCE SERVICE; 19 BLEEDING HEART, LLC; CALIFORNIA FURNISHINGS, INC.; CELIBRÉ, INC.; J.L. 20 FERRI ENTERTAINMENT, INC.; LE 21 PETITE RETREAT DAY SPA, LLC; SAN FRANCISCO BAY BOAT CRUISES, LLC; 22 WAG MY TAIL, INC.; and ZODIAC RESTAURANT GROUP, INC., on behalf of 23 themselves and all others similarly situated, 24 25 26 27 v. YELP! INC., Defendant. Plaintiffs,

Cats and Dogs Animal Hospital, Inc.et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP PLAINTIFFS' MOTION TO COMPEL DEPOSITION, FOR SANCTIONS AND TO SHORTEN TIME

1 TO ALL PARTIES AND THEIR COUSNEL OF RECORD: 2 PLEASE TAKE NOTICE THAT in accordance with Northern District of California

3 Local Rule 37, Plaintiffs hereby move the Court for an Order compelling Defendant Yelp! Inc. 4 ("Yelp") to produce for deposition on Monday, June 21, 2010, a corporate representative 5 pursuant to Rule 30(b)(6) (the "Motion to Compel"). 6 PLEASE TAKE FURTHER NOTICE THAT in accordance with Federal Rule of Civil

7 Procedure 37(d)(1)(A)(i) and Local Rule 37-1(a), Plaintiffs move for sanctions in the amount of 8 $5,119.80, representing the costs incurred by Plaintiffs because of Yelp's last-minute 9 cancellation of the noticed deposition ($954.80), and for the fees associated with bringing this 10 Motion ($4,165). 11 PLEASE TAKE FURTHER NOTICE THAT in accordance with Local Rule 6-3,

12 Plaintiffs move for an Order shortening time on the Motion to Compel, and request that Yelp's 13 Opposition, if any, be due on Thursday, June 17, 2010, and that the Motion to Compel be heard 14 and decided thereafter without Reply. Plaintiffs' Motion for Shortening of Time is based on the 15 concurrently-filed Declaration of Jared H. Beck, dated June 16, 2010 (the "Beck Decl."). 16 17 1. Facts Giving Rise to This Motion On May 5, 2010, Plaintiffs served upon Yelp a Notice of Deposition pursuant to

18 Rule 30(b)(6), scheduling the deposition of Yelp's corporate representative for June 21, 2010 in 19 San Francisco, where Yelp is based. (See Beck Decl., Ex. A.) 20 2. On June 13, 2010, Plaintiffs' attorneys Jared H. Beck and Elizabeth Lee Beck,

21 both of Beck & Lee based in Miami, Florida, purchased non-refundable airfare for travel to San 22 Francisco. (See Beck Decl. Exs. B-C.) 23 3. At 9:57 p.m. PST on June 15, 2010--six weeks after the deposition notice was

24 served, but only three business days before it was scheduled to take place--Yelp served 25 Plaintiffs with its Objections to Plaintiffs' Notice of Taking Fed. R. Civ. P. 30(B)(6) Deposition 26 (the "Objection"). (See Beck Decl. Exs. D-E.) The Objection asserted that the deposition was 27 "premature," despite the fact that the parties have already exchanged discovery and conducted 28 1 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP PLAINTIFFS' MOTION TO COMPEL DEPOSITION, FOR SANCTIONS AND TO SHORTEN TIME

1 the Rule 26(f) conference over two months ago, on April 8, 2010. See Fed. R. Civ. P. 26(d)(1) 2 (permitting the parties to conduct discovery after they have conferred pursuant to Rule 26(f)). 3 4. At 1:19 a.m. PST on June 16, 2010, Mr. Beck emailed counsel for Yelp seeking

4 clarification as to whether Yelp was refusing to produce a witness for the deposition. Mr. Beck 5 offered to accommodate Yelp on any issues relating to time or location to ensure that the 6 deposition would go forward on June 21st. (See Beck Decl. Ex. F.) 7 5. At 7:27 p.m. EST on June 16, 2010, Yelp's counsel responded by email, asserting

8 that "it is premature to move forward with depositions before the issues of consolidation and 9 coordination have been resolved." (Beck Decl. Ex. G.) 10 11 Argument Yelp's last-minute attempt to cancel the 30(b)(6) deposition Plaintiffs noticed six weeks

12 ago is unfair and, if permitted, will force Plaintiffs to incur substantial costs, including non13 refundable airfare. 14 Yelp's Objection and unilateral cancellation of the 30(b)(6) deposition are also improper.

15 Yelp bases its Objection on the "procedural history and posture of this case," purportedly 16 because of Yelp's pending motion to consolidate this action with the Levitt action (Dkt. No. 64). 17 (Objection at 2.) But Yelp knew it would seek such consolidation no later than April 9, 2010, 18 when it moved to transfer this action from the Central District to this Court on that basis. (See 19 Dkt. No. 25 at 12:2-3 ("If LaPausky and Cats and Dogs are transferred to the Northern District, 20 Yelp would seek consolidation of the three actions [i.e., the Levitt action]")). Yelp could have 21 objected to the 30(b)(6) deposition on this basis from the time it was served in May, but chose 22 not to. 23 Moreover, Yelp has been fully participating in discovery since first engaging in the Rule

24 26(f) conference on April 8, 2010, including serving Plaintiffs with 120 interrogatories and 510 25 requests for document--all of which Plaintiffs have substantively responded to. Similarly, Yelp 26 has responded and objected to the full sets of interrogatories and document requests which 27 Plaintiffs served on Yelp. Having wetted its toes in the garden hose of discovery--even while the 28 2 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP PLAINTIFFS' MOTION TO COMPEL DEPOSITION, FOR SANCTIONS AND TO SHORTEN TIME

1 LaPausky and Levitt copycat actions were pending--Yelp cannot reasonably shut off the spigot 2 now, especially at the last minute. 3 Nor has Yelp met and conferred with Plaintiffs in good faith. 1 Instead, Yelp ignored

4 Plaintiffs' attempt to devise a solution that would avoid the expense and inconvenience incurred 5 by Yelp's cancellation. After the close of business, Yelp merely responded that it was "hard to 6 believe" Plaintiffs legitimately expected the deposition to proceed, or that Plaintiffs purchased 7 non-refundable airfare in order to attend the deposition. (See Beck Decl. Ex G.) This Motion 8 should suffice to disabuse Yelp of its apparent doubts. 9 Finally, Yelp's reliance upon the pendency of Levitt as a basis to withhold production of

10 witness for a duly noticed Rule 30(b)(6) deposition of its corporate representative--without 11 having filed an appropriate motion for protective order or to stay discovery--is without merit. 12 13 14 15 16 17 18 19 20 21 22 23 As detailed in Plaintiffs' Memorandum of Points of Points & Authorities in Opposition to Yelp's Motion for Consolidation (Dkt. No. 65-1), Levitt is a copycat of this action. The Levitt plaintiff's lawyers have done no more than file a complaint mimicking the allegations in this case, after which they stipulated to allow Yelp an additional four months to respond. Any concerns on Yelp's part that discovery in this case be coordinated with Levitt could have been easily handled simply by asking, in a timely manner, that the lawyers for the Levitt plaintiff be invited to attend the deposition, a request to which Plaintiffs' counsel would have readily agreed. Instead, Yelp waited until the eleventh hour and then raised the pendency of Levitt as an "excuse" not to produce a witness. Such gamesmanship is improper. And even now Yelp persists in refusing to provide alternate dates for the deposition.
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Yelp has similarly refused to meet and confer concerning the discovery that the parties have already exchanged, unless Mr. Levitt is involved, even though Mr. Levitt was not involved in Plaintiffs' discovery and has not engaged in any discovery himself. (See Declaration of Jack 24 Fitzgerald, dated June 16, 2010, at ¶ 3.) 25 2 Pursuant to the generous stipulation, Yelp's response to Levitt was due to be filed on August 26 18, 2010, even though the Levitt complaint was filed on March 12, 2010. By contrast, Yelp filed its Motion to Dismiss in this case on April 1, 2010 ­ after the original Complaint was filed on 27 February 23, 2010, and the First Amended Complaint on March 16, 2010. The Motion to Dismiss has been fully briefed and was scheduled for hearing on May 10, 2010 before Judge 28 Fairbank in the Central District of California, prior to transfer to this Court. 3 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP PLAINTIFFS' MOTION TO COMPEL DEPOSITION, FOR SANCTIONS AND TO SHORTEN TIME

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Based on Yelp's refusal to meet and confer, the Court "may impose an appropriate

2 sanction, which may include an order requiring payment of all reasonable expenses, including 3 attorney's fees, caused by the refusal or failure to confer." N.D. Cal. L.R. 37-1(a); see also Fed. 4 R. Civ. P. 37(d)(1)(A)(i) (allowing sanctions where a 30(b)(6) witness fails to appear for a 5 noticed deposition). Plaintiffs hereby move for their reasonable fees incurred in bringing this 6 motion, in the amount of $4,165. (See Beck Decl. ¶ 9.) Should the deposition not proceed on 7 Monday, June 21, 2010, Plaintiffs further move for their non-refundable costs, i.e., $954.80 8 (airfare for Jared Beck and Elizabeth Lee Beck, see Beck Decl. ¶ 3). 9 10 Shortening of Time Plaintiffs request that the time for the Motion to Compel be shortened so that the Court

11 has an opportunity to rule on it and compel the deposition to take place, as scheduled, on 12 Monday, June 21, in order that Plaintiffs may avoid the expense and inconvenience of Yelp's 13 last-minute cancellation. Specifically, Plaintiffs request that Yelp's Opposition, if any, be due 14 June 17, 2010, and request that the Court rule on the Motion thereafter, without Reply. (See Beck 15 Decl. ¶ 10.) 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP PLAINTIFFS' MOTION TO COMPEL DEPOSITION, FOR SANCTIONS AND TO SHORTEN TIME

1 Respectfully Submitted, 2 3 4 /s/ Jack Fitzgerald Jack Fitzgerald

THE WESTON FIRM 5 GREGORY S. WESTON 888 Turquoise Street 6 San Diego, CA 92109 Telephone: [phone] Facsimile: [phone] 8 [e-mail] 9 JACK FITZGERALD 2811 Sykes Court 10 Santa Clara, CA 95051 Telephone: [phone] [e-mail] 12 BECK & LEE BUSINESS TRIAL LAWYERS 13 JARED H. BECK ELIZABETH LEE BECK 14 Courthouse Plaza Building 28 West Flagler Street, Suite 555 15 Miami, FL 33130 16 Telephone: [phone] Facsimile: [phone] 17 [e-mail] [e-mail] 18 Attorneys for Plaintiffs and the Proposed Classes 19 20 21 22 23 24 25 26 27 28 5 Cats and Dogs Animal Hospital, Inc. et al. v. Yelp! Inc., Case No. 3:10-cv-02351 MHP PLAINTIFFS' MOTION TO COMPEL DEPOSITION, FOR SANCTIONS AND TO SHORTEN TIME