Dodson et al v. Tempur-Sealy International, Inc. et al

Filing 93

STIPULATION AND ORDER re 92 STIPULATION WITH PROPOSED ORDER filed by Tempur-Pedic North America, LLC, Tempur-Sealy International, Inc. Terminating as Moot: 83 MOTION Modify October 20, 2014 Scheduling Order. Signed by Judge Jon S. Tigar on December 18, 2014. (wsn, COURT STAFF) (Filed on 12/18/2014)

1 CALL & JENSEN
Mark L. Eisenhut, Bar No. 185039
2 [e-mail]
3 Matthew R. Orr, Bar No. 211097
[e-mail]
4 Aaron L. Renfro, Bar No. 255086
[e-mail]
5 A Professional Corporation
6 610 Newport Center Drive, Suite 700
Newport Beach, CA 92660
7 Tel: [phone]
Fax: [phone]
8
RUMBERGER, KIRK & CALDWELL, P.A.
9 Douglas B. Brown, Esq. [Pro Hac Vice]
10 [e-mail]
Daniel J. Gerber, Esq. [Pro Hac Vice]
11 [e-mail]
Darren McCartney, Esq. [Pro Hac Vice]
12 [e-mail]
13 Samantha C. Duke, Esq. [Pro Hac Vice]
[e-mail]
14 Lincoln Plaza, Suite 1400
300 South Orange Avenue
15 Orlando, FL 32802
Tel.: [phone]
16 Fax: [phone]
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Attorneys for Defendants Tempur-Sealy International, Inc.,
18 formerly known as Tempur-Pedic International, Inc. and
Tempur-Pedic North America, LLC
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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22 MICHAEL DODSON, ALVIN TODD, and Case No. 3:13-cv-04984-JST
HENRY and MARY THOMPSON, et al.,
23 individually and on behalf of all others
Amended Joint Stipulation and Order
similarly situated,
to Modify the October 20, 2014
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Scheduling Order
Plaintiffs,
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26

vs.

27 TEMPUR-SEALY INTERNATIONAL,
28 INC., formerly known as TEMPUR-PEDIC Complaint Filed: October 25, 2013
INTERNATIONAL, INC. and TEMPUR- Trial Date:
None Set
Amended Joint Stipulation and Order to Modify the October 20, 2014 Scheduling Order

1 PEDIC NORTH AMERICA, LLC,
2

Defendants.

3

Pursuant to Local Rules 6 and 7, Plaintiffs and Defendants Tempur-Sealy

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International, Inc. and Tempur-pedic North America, LLC (collectively, “Defendants”,

6 and, together with Plaintiffs, the “Parties”), hereby stipulate and agree to the following
7 modification of the October 20, 2014 Scheduling Order:
8 I.

BACKGROUND

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1.

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Plaintiffs filed the original Complaint on October 25, 2013. Plaintiffs filed

the First Amended Complaint on November 7, 2013 and the Second Amended

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Complaint on August 29, 2014. (Doc. 63).
2.

Defendants represent that during November 2013 until January 2014,

14 Defendant engaged in an effort to determine the scope of likely document production in
15 order to estimate how long document discovery and Electronically Stored Information
16 (“ESI”) searches would take for purposes of the upcoming scheduling conference.
17
Declaration of Daniel Gerber ¶ 4 (hereinafter Gerber Dec.), attached as Exhibit A.
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3.
On June 4, 2014, this Court entered a Scheduling Order setting the
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20 deadline to file the motion for class certification on January 15, 2015. (Doc. 56).
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4.

On August 5, 2014, Plaintiffs propounded two sets of almost identical

22 discovery on Defendants consisting of 204 requests for production of documents (102 to
23 each Defendant) and 66 interrogatories (33 to each Defendant). Following extensions,
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Defendants’ served responses to the discovery on September 24, 2014. Gerber Dec ¶ 5.
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5.
Since September 24, 2014, Defendants’ counsel has conferred with
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27 Plaintiffs’ counsel in a good faith effort to reduce the scope of discovery requested;
28
-2Amended Joint Stipulation and Order to Modify the October 20, 2014 Scheduling Order

1 while all disputes have not been resolved, the scope of discovery is largely settled upon.
2 See Gerber Dec. ¶ 6.
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6.
On August 27th and 29th, 2014, Plaintiffs propounded two more sets of
4
discovery consisting of 42 interrogatories (21 to each Defendant) and 96 requests for
5
th
6 production (48 to each Defendant). On September 29 and October 1st, 2014
7 Defendants served responses to that discovery. See Gerber Dec. ¶ 7.
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7.

On October 17, 2014, the Parties filed a Joint Motion to Modify the

9 Scheduling Order. This Court entered an Order on October 20, 2014 setting the
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deadline to file the motion for class certification on February 16, 2014. (Doc. 78).
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8.
On November 7, 2014, Plaintiffs propounded three more sets of discovery
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13 containing 118 interrogatories (59 to each Defendant) and 10 requests for production (5
14 to each Defendant). Defendants have received an extension and have not yet responded
15 to this discovery. See Gerber Dec. ¶ 8.
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9.

Defendants represent that despite Defendants’ best efforts, unforeseen

technical difficulties and miscommunication have made the deadlines in the October 20,

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2014 Scheduling Order impossible to meet. See Gerber Dec. ¶ 9. Defendants have not

20 completed an autopsy of the specific failures that led to these delays. Defendants have
21 been focused on complying with discovery.
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10.

This delay prevents the Parties from maintaining the current schedule set

23 forth in the October 20, 2014 Scheduling Order, which defense counsel thought could
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be met. See Gerber Dec. ¶ 10. Defendants represent that Defendants and Defendants’
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counsel take seriously their obligations to the Court and to the Plaintiffs to comply with
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27 the agreed scope of discovery. However, unforeseen technical difficulties and
28 miscommunication have mired this production. Id.
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11.

Because of the delay in Defendants’ production, the Parties have already

2 agreed to postpone the depositions of Defendants’ representatives until early 2015. See
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Gerber Dec. ¶ 11.
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12. The modification of the October 20, 2014 Scheduling Order will benefit all
5
6 Parties because it will allow for a full adjudication after a reasonable and complete
7 discovery. The modification to the Scheduling Order will enable the Parties to fully and
8 thoroughly develop and complete the underlying discovery necessary to prepare and
9 respond to Plaintiffs’ motion for class certification.
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13. This is the second request for modification of the Scheduling Order.
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Gerber Dec. ¶ 13.
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STIPULATION
13 II.
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14.

The Parties stipulate and agree to, and request the Court order the

15 following modified deadlines:
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Event
Deadline for Defendants to
complete production of all
documents in response to
non-objected to requests for
production
Deadline for Plaintiffs to
identify expert witnesses and
provide proposed deposition
dates
Deadline to file motion for
class certification
Deadline for Defendants to
identify expert witnesses and
provide proposed deposition
dates

Current Deadline

Proposed Deadline
To be produced on a
timely rolling basis
through January 31,
2015

January 16, 2015

May 16, 2015

February 16, 2015

June 16, 2015

March 10, 2015

July 10, 2015 (or 24
days from filing the
motion for class

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certification,
whichever is sooner)

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Depositions of Plaintiffs’
expert witnesses re: class
certification

February 18, 2015March 20, 2015

Deadline to file opposition to
motion for class certification

April 6, 2015

August 6, 2015 (or
52 days from the
filing of the motion
for class certification,
whichever is sooner)

Depositions of Defendants’
expert witnesses re: class
certification

April 15, 2015-May
9, 2015

August 15, 2015 –
September 9, 2015
(or 60-85 days from
filing the motion for
class certification,
whichever is sooner)

Deadline to file reply in
support of motion for class
certification

June 13, 2015

October 13, 2015 (or
119 days from filing
the motion for class
certification,
whichever is sooner)

Class certification hearing

July 2, 2015

November 2, 2015

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June 18, 2015- July
20, 2015 (or 2-34
days from filing the
motion for class
certification,
whichever is sooner)

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20 Dated: December 15, 2014.
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By: /s/ Samantha C. Duke
Douglas B. Brown, Esq.*
Daniel J. Gerber, Esq.*
Darren K. McCartney, Esq.*
Samantha C. Duke, Esq.*
RUMBERGER, KIRK & CALDWELL
Lincoln Plaza, Suite 1400
300 South Orange Avenue
Orlando, FL 32802
Tel.: [phone]
Fax: [phone]
-5-

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CALL & JENSEN
Mark L. Eisenhut, Bar No. 185039
Matthew R. Orr, Bar No. 211097
Aaron L. Renfro, Bar No. 255086
A Professional Corporation
610 Newport Center Drive, Suite 700
Newport Beach, CA 92660
Tel: [phone]
Fax: [phone]

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Attorneys for Tempur-Sealy International,
Inc. and Tempur-Pedic North America,
LLC

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* Admitted pro hac vice

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ALLEN STEWART, P.C.
Allen M. Stewart, Esq.
Steve B. Jensen, Esq.
Stephanie B. Sherman, Esq.
325 N. St. Paul Street, Suite 4000
Dallas, Texas 75201
Tel: [phone]
Fax: [phone]
AUDET & PARTNERS, LLP
Michael McShane, Esq.
Jonas P. Mann, Esq.
Dana M. Isaac, Esq.
221 Main Street, Suite 1460
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]
THE SIMON LAW FIRM, PC.
John G. Simon, Esq.
Ryan Keane, Esq.
80 Market Street, Suite 1700
St. Louis, MO 63101
Tel: [phone]
Fax: [phone]
SHIPMAN & WRIGHT, L.L.P.
Gary K. Shipman, Esq.
William G. Wright, Esq.
Angelique Adams, Esq.
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575 Military Cutoff Road, Suite 106
Wilmington, NC 28405
Tel: [phone]
By: /s/ Angelique Adams

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Attorneys for Plaintiffs and the Proposed
Class

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DECLARATION OF DANIEL J. GERBER
I, Daniel J. Gerber, declare:
1.

I am an attorney licensed to practice law in Florida that has been admitted

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pro hac vice to appear in this case. I am an attorney at the law firm of Rumberger, Kirk

6 & Caldwell, P.A. located in Orlando, Florida, counsel of record for Defendants. I have
7 personal knowledge of the facts contained below and believe that I am competent to
8 testify as to such facts.
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2.

I make this declaration in support of the Parties’ Joint Stipulation to

Modify the October 20, 2014 Scheduling Order.

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3.

This case is a purported class action alleging violations of ten states’

13 consumer protection laws based on allegations of false advertising and deceptive and
14 unfair trade practices.
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4.

During November 2013 until January 2014, Defendant engaged in an effort

16 to determine the scope of likely document production in order to estimate how long
17
document discovery and Electronically Stored Information (“ESI”) searches would take
18
for purposes of the upcoming scheduling conference.
19
5.
On August 5, 2014, Plaintiffs propounded two sets of almost identical
20
21 discovery on Defendants consisting of 204 requests for production of documents (102 to
22 each Defendant) and 66 interrogatories (33 to each Defendant). Following extensions,
23 Defendants’ served responses to the discovery on September 24, 2014.
24
6.
Since September 24, 2014, Defendants’ counsel has conferred with
25
Plaintiffs’ counsel in a good faith effort to reduce the scope of discovery requested;
26
27 while all disputes have not been resolved, the scope of discovery is largely settled upon.
28
-8-

1

7.

On August 27th and 29th, 2014, Plaintiffs propounded two more sets of

2 discovery consisting of 42 interrogatories (21 to each Defendant) and 96 requests for
3
production (48 to each Defendant). On September 29th and October 1st, 2014
4
Defendants served responses to that discovery.
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8.
On November 7, 2014, Plaintiffs propounded three more sets of discovery
6
7 containing 118 interrogatories (59 to each Defendant) and 10 requests for production (5
8 to each Defendant). Defendants have received an extension and have not yet responded
9 to this discovery.
10
9.
Despite Defendants’ best efforts, unforeseen technical difficulties and
11
miscommunication have made the deadlines in the October 20, 2014 Scheduling Order
12
13 impossible to meet. Defendants have not completed an autopsy of the specific failures
14 that led to these delays. Defendants have been focused on complying with discovery.
15

10.

This delay prevents the Parties from maintaining the current schedule set

16 forth in the October 20, 2014 Scheduling Order, which defense counsel thought could
17
be met. Defendants and Defendants’ counsel take seriously their obligations to the
18
Court and to the Plaintiffs to comply with the agreed scope of discovery. However,
19
20 unforeseen technical difficulties and miscommunication have mired this production.
21

11.

Because of the delay in Defendants’ production, the Parties have already

22 agreed to postpone the depositions of Defendants’ representatives until early 2015.
23
24

12.

The modification of the October 20, 2014 Scheduling Order will benefit all

Parties because it will allow for a full adjudication after a reasonable and complete

25
26

discovery. The modification to the Scheduling Order will enable the Parties to fully and

27 thoroughly develop and complete the underlying discovery necessary to prepare and
28 respond to Plaintiffs’ motion for class certification.
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13.

This is the second request for modification of the Scheduling Order.

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14.

I have conferred with counsel for Plaintiffs and they agree to the proposed

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modifications of the October 20, 2014 Scheduling Order.

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I declare under penalty of perjury that the foregoing is true, and that this

th
6 declaration is made this 15 day of December, 2014.

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By: /s/ Daniel J. Gerber
Daniel J. Gerber

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DERED

O OR
IT IS S

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NO
RT

ER

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. Ti ga r

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J u d ge J o

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PURSUANT TO THE ABOVE STIPULATION, IT IS SO ORDERED.
S DISTRICT
TE
C
December 18, 2014
TA
Dated: ____________________________
S

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ORDER

UNIT
ED

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F
D IS T IC T O
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SIGNATURE CERTIFICATION
I hereby certify that the content of this document is acceptable to Angelique
Adams, counsel for Plaintiffs and the Proposed Class, and I have obtained Ms. Adams’

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authorization to affix his electronic signature to this document.
By: /s/ Samantha C. Duke
Douglas B. Brown, Esq.*
Daniel J. Gerber, Esq.*
Darren K. McCartney, Esq.*
Samantha C. Duke, Esq.*
RUMBERGER, KIRK & CALDWELL
Lincoln Plaza, Suite 1400
300 South Orange Avenue
Orlando, FL 32802
Tel.: [phone]
Fax: [phone]
CALL & JENSEN
Mark L. Eisenhut, Bar No. 185039
Matthew R. Orr, Bar No. 211097
Aaron L. Renfro, Bar No. 255086
A Professional Corporation
610 Newport Center Drive, Suite 700
Newport Beach, CA 92660
Tel: [phone]
Fax: [phone]

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Attorneys for Tempur-Sealy International,
Inc. and Tempur-Pedic North America,
LLC
* Admitted pro hac vice

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