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

Filing 74

Reply Memorandum re 64 MOTION to Consolidate Cases filed byYelp! Inc.. (Brown, Matthew) (Filed on 7/6/2010)

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COOLEY LLP
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COOLEY 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] Fax: [phone] Attorneys for Defendant YELP! INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

BORIS Y. LEVITT, on behalf of himself and all others similarly situated, Plaintiff, v. YELP! INC.; and DOES 1 through 100, inclusive, Defendants.

No. CV 10-01321 MHP DEFENDANT YELP! INC.'S REPLY IN SUPPORT OF MOTION TO CONSOLIDATE RELATED CASES FOR ALL PURPOSES AND TO SET DATES FOR CONSOLIDATED AMENDED COMPLAINT AND RESPONSE THERETO Date: Monday, July 19, 2010 Time: 2:00 p.m. _ Judge: Hon. Marilyn Hall Patel

CATS AND DOGS ANIMAL HOSPITAL, INC., et al., on behalf of itself and all others similarly situated, Plaintiffs, v. YELP! INC., Defendant.

No. CV 10-02351 MHP

DEF. YELP'S REPLY ISO MOT. TO CONSOLIDATE CASE NOS. CV 10-01321 &CV 10-02351 MHP

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In deciding whether to consolidate cases, "the main question" for a court "is whether there is a common question of law or fact." Ind. State Dist. Council of Laborers and HOD Carriers Pension Fund v. Gecht, No. C-06-7274 EMC, 2007 WL 902554, at *1 (N.D. Cal. Mar. 22, 2007) (emphasis added). Plaintiffs in Cats and Dogs Animal Hospital, Inc. v. Yelp! Inc., No. CV 10-02351 MHP ("Cats and Dogs"), concede, as they must, that their action and Boris Y. Levitt v. Yelp! Inc., No. CV 10-01321 ("Levitt"), "involve common questions of law and fact," and that the Court may, in its discretion, grant Yelp! Inc.'s ("Yelp") motion to consolidate. (Opp. at 3:22-25 (emphasis added).) This concession notwithstanding, the Cats and Dogs Plaintiffs argue that granting Yelp's motion would cause "delay" and that "[t]he harm from delay . . . far outweighs the benefit of consolidation." (Opp. at 4:12-13.) The "delay" to which Plaintiffs point is Yelp's request that the Court order Plaintiffs to file a consolidated, amended complaint, which Plaintiffs argue will cause putative class members to "suffer tremendously." (Opp. at 2:5-13.) Plaintiffs' argument that they will be prejudiced by this "delay" is without merit. First, granting Yelp's request would not result in "delay" given that the initial case management conference for both of these related cases will not be held until August 23. (Docket No. 63.) Second, Plaintiffs have not explained how they would be prejudiced by what they characterize as "delay," nor can they. These cases, filed just weeks apart, are in a similar procedural posture, which weighs in favor of consolidation and undermines Plaintiffs' claims of prejudice from "delay." Burnett v. Rowzee, No. SACV07-641 DOC (ANx), 2007 WL 4191991, at *3 (C.D. Cal. Nov. 26, 2007) (finding no prejudice where "no case is close to trial" and all of the cases to be consolidated arose within a four-month period, so that "the risk of prejudice due to cases being at different stages of preparation is minimal"). Moreover, Plaintiffs have failed to point to any authority supporting the notion that this purported prejudice would be sufficient to outweigh the benefits of consolidating two related cases sharing not only "common questions of fact and law" but "identical" alleged "factual scenarios." (Opp. at 3:23, 4:15-16.) Instead, as Yelp argued in its moving brief (Yelp Mot. at 10), filing a consolidated complaint will streamline these proceedings by incorporating all named plaintiffs, and their 1.
DEF. YELP'S REPLY ISO MOT. TO CONSOLIDATE CASE NOS. CV 10-01321 &CV 10-02351 MHP

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claims and allegations, into a single pleading.1 See In re Equity Funding Co. of Am. Sec. Litig., 416 F. Supp. 161, 176 (C.D. Cal. 1976) (finding that a consolidated complaint avoided unnecessary costs and delay, allowed the court "to receive memoranda 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 details, [and] matters . . . much less burdensome"). Cats and Dogs Plaintiffs also object to consolidation because "counsel for Cats and Dogs do not wish to work with counsel for Mr. Levitt." (Opp. at 5:12.) Yet Plaintiffs have cited no authority holding that an attorney's wish to be the sole Plaintiffs' counsel has any bearing on whether cases should be consolidated. It does not. Similarly, Cats and Dogs Plaintiffs assert that Levitt's complaint is not well-drafted and argue that this, too, weighs against consolidation. (Opp. at 4:14-5:11.) They disapprove of some of Levitt's claims for relief and of Levitt's approach to defining the proposed class. (Id.) But, again, Plaintiffs fail to point to any authority supporting the argument that their disapproval of Levitt counsel's approach somehow weighs against consolidation in these circumstances. Cf. Osher v. JNI Corp., No. 01-CV-0557-J (NLS), 2001 WL 36176415, at *2 (S.D. Cal. July 10, 2001) (finding that Rule 42 does not "require[] that the actions be identical before they may be consolidated"). In sum, Plaintiffs fail to present any delay, inconvenience, or expense that outweighs the benefits of consolidation. See Huene v. U.S., 743 F.2d 703, 704 (9th Cir. 1984) (while

"exercising its broad discretion to order consolidation of actions," a district court also "weighs the saving of time and effort consolidation would produce against any inconvenience, delay, or expense that it would cause"). Rather, as Yelp explained in its opening brief, consolidating these cases will preclude the possibility of inconsistent results, streamline the discovery process, and

Plaintiffs' request to have their First Amended Complaint be deemed the "operative" complaint should be denied. Their complaint, obviously, does not include Levitt as a named Plaintiff nor does it include all of Levitt's claims for relief. If Plaintiffs' request is granted, Yelp would be forced to litigate the remaining Levitt claims after the conclusion of the litigation over the Cats and Dogs complaint. This incontrovertible delay would subject Yelp to great prejudice. 2.
DEF. YELP'S REPLY ISO MOT. TO CONSOLIDATE CASE NOS. CV 10-01321 &CV 10-02351 MHP

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cut the number of required motions in half. These benefits are not outweighed by Plaintiffs' meritless claims of "delay" or by their jockeying to be lead counsel for the putative class. CONCLUSION For these reasons, Yelp respectfully requests that this Court grant Yelp's Motion in its entirety. Dated: July 6, 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 MOT. TO CONSOLIDATE CASE NOS. CV 10-01321 &CV 10-02351 MHP