Forsyth v. Motion Picture Association of America (MPAA) et al

Filing 40

STIPULATION AND ORDER RE [#39]. Signed by Judge Richard Seeborg on 5/17/16. (cl, COURT STAFF) (Filed on 5/17/2016)

1 GLENN D. POMERANTZ (SBN 112503)
[e-mail]
2 MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue, Thirty-Fifth Floor
3 Los Angeles, California 90071-1560
Telephone:
[phone]
[phone]
4 Facsimile:

5 KELLY M. KLAUS (SBN 161091)
[e-mail]

KENNETH LEE MARSHALL (SBN 277092)
[e-mail]
ROGER MYERS (SBN 146164)
[e-mail]
ALEXANDRA C. WHITWORTH (SBN 303046)
[e-mail]
BRYAN CAVE LLP
560 Mission Street, Suite 2500
San Francisco, California 94105
Tel: [phone] /Fax: [phone]

6 ACHYUT J. PHADKE (SBN 261567)
[e-mail]

7 ADAM I. KAPLAN (SBN 268182)

Attorneys for Defendant National Association of
Theatre Owners

[e-mail]

8 MUNGER, TOLLES & OLSON LLP
560 Mission Street, Twenty-Seventh Floor
9 San Francisco, California 94105-2907
Telephone:
[phone]
[phone]
10 Facsimile:

DAVID SCHACHMAN (Pro Hac Vice)
[e-mail]
LAW OFFICES OF DAVID SCHACHMAN,P.C.
55 West Monroe Street, Suite 2970
Chicago, Illinois 60603
Tel: [phone]/Fax: [phone]

11 Attorneys for Defendants Motion Picture
Association of America, Inc., The Walt Disney

One of the Attorneys for Plaintiff Timothy Forsyth

12 Company, Paramount Pictures Corporation, Sony
Pictures Entertainment Inc., Twentieth Century

13 Fox Film Corporation, Universal City Studios
LLC, and Warner Bros. Entertainment Inc.

14
UNITED STATES DISTRICT COURT
15
NORTHERN DISTRICT OF CALIFORNIA
16
TIMOTHY FORSYTH, individually and on behalf of a
17 class of similarly situated individuals,
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19

Plaintiff,
vs.

20 MOTION PICTURE ASSOCIATION OF
AMERICA, INC., a New York corporation, THE
21 WALT DISNEY COMPANY, a Delaware
corporation, PARAMOUNT PICTURES
22 CORPORATION, a Delaware corporation,
SONY PICTURES ENTERTAINMENT INC., a
23 Delaware corporation, TWENTIETH
CENTURY FOX FILM CORPORATION, a
24 Delaware corporation, UNIVERSAL CITY
STUDIOS LLC, a Delaware corporation,
25 WARNER BROS. ENTERTAINMENT INC., a
Delaware corporation, and NATIONAL
26 ASSOCIATION OF THEATRE OWNERS, a
New York corporation,
27
Defendants.
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Case No. 3:16-cv-00935-RS
STIPULATION AND
[PROPOSED] ORDER RE
[1] PLAINTIFF’S RESPONSE TO
DEFENDANTS’ SPECIAL
MOTION TO STRIKE
PLAINTIFFS’ ACTION
PURSUANT TO CALIFORNIA’S
ANTI-SLAPP STATUTE AND
MOTION TO DISMISS, AND
[2] CASE MANAGEMENT
CONFERENCE AND RELATED
DEADLINES
Judge: Hon. Richard Seeborg

STIPULATION AND [PROPOSED] ORDER
Case No. 3:16-cv-00935-RS

1

On May 12, 2016, counsel for Plaintiff and all Defendants conferred telephonically,

2 pursuant to Federal Rules of Civil Procedure 16(b) and 26(f), concerning scheduling issues in this
3 matter. In that scheduling conference, counsel for all parties agreed that, subject to the Court’s
4 approval, (1) the hearing on Defendants’ special motion to strike under California’s anti-SLAPP
5 statute and motion to dismiss, currently set for Thursday, June 9, 2016, at 2:30 p.m. should be
6 taken off calendar, and a new hearing date set following Plaintiff’s submission of their Opposition
7 (as discussed herein) and the parties’ stipulation regarding a date for Defendants’ reply and a
8 proposed hearing date; (2) the page limit for Plaintiff’s Opposition to the motions should be
9 increased as set out below; (3) the correct corporate entity for one of the Defendants should be
10 substituted into the case in place of an incorrectly named Defendant; and (4) the Case
11 Management Conference (“CMC”), currently on calendar for Thursday, May 26, at 10:00 a.m.
12 (Dkt. No. 24), should be taken off calendar, all deadlines set by or related to Rules 16(b) and 26(f)
13 should be vacated and, following the Court’s ruling on Defendants’ dispositive motions, if
14 necessary, the Court should set a new CMC within a month of the ruling on Defendants’
15 dispositive motions, if practicable, and the parties will submit their Rule 26(f) report no later than
16 14 days before the new CMC date.
17

Good cause exists for this stipulation based upon the following recitals:

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A. On April 29, 2016, Defendants filed a joint motion to strike Plaintiff’s entire action

19 pursuant to California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, and to dismiss the
20 complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and Defendant National
21 Association of Theater Owners filed a supplemental brief in support of same;
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B. The hearing on Defendants’ motion to strike and dismiss the case is set for June 9,

23 2016. Under Civil Local Rule 7-3, Plaintiff’s Opposition brief would be due by Friday, May 13,
24 and Defendants’ Reply would be due by Friday, May 20, 2016;
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C. Defendants submitted in support of their motions a request for judicial notice, which

26 Defendants maintain is proper for the portion of their motion under Rule 12(b)(6) as well as for
27 the anti-SLAPP motion. Defendants do not contend that Plaintiff is required to respond to the
28 anti-SLAPP motion with evidence in support of any factual allegations in the complaint that are

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STIPULATION AND [PROPOSED] ORDER
Case No. 3:16-cv-00935-RS

1 otherwise sufficient to satisfy Plaintiff’s pleading burden under Bell Atlantic Corp. v. Twombly,
2 550 U.S. 544, 555 (2007) (“plaintiff’s obligation … requires more than labels or conclusions”).
3 Defendants do contend that Plaintiff’s claims are constitutionally and legally barred, and that there
4 are no non-conclusory allegations in the complaint that satisfy Plaintiff’s federal pleading burden
5 or its burden in responding to the anti-SLAPP motion. Based on the foregoing, Plaintiff and
6 Defendants agree that the anti-SLAPP motion should be considered as akin to a Rule 12(b)(6)
7 motion to dismiss, and accordingly that the anti-SLAPP motion does not provide Plaintiff a basis
8 for seeking discovery at this juncture, as might be the case if the anti-SLAPP motion were akin to
9 a Rule 56 motion. See, e.g., Smith v. Payne, 2012 U.S. Dist. LEXIS 182345, *17-19 n.7 (N.D.
10 Cal. Dec. 26, 2012). Defendants stipulate that by entering into this stipulation plaintiff has not
11 waived any right to claim that the California anti-SLAPP statute should not be applied in any
12 manner to this case. As a result, Plaintiff stipulates that he will not seek to conduct any discovery
13 to respond to the motions;
14

D. Plaintiff’s counsel have informed Defendants that they need until Friday, July 15,

15 2016, to respond to Defendants’ motions because of ongoing briefing and a hearing on a motion
16 for summary judgment in a pending case, and long standing scheduled travel plans outside of the
17 country, both of which are scheduled for June. Plaintiff will make every effort to file his response
18 prior to July 15, 2016, if possible. Defendants do not object to Plaintiff’s requested extension of
19 time within which to respond to the motions, subject to the other provisions of this Stipulation and
20 [Proposed] Order;
21

E. Once Plaintiff files his Opposition to Defendants’ motion, Defendants’ counsel will

22 quickly review the filing and within one week propose to Plaintiff’s counsel a schedule for the
23 filing of a Reply and a proposed hearing date on the Court’s available civil motion calendar (the
24 parties agree that they will not propose a date that is less than three weeks from the date of the
25 proposed Reply); Defendants do not expect to request a significant extension of the time within
26 which to file their Reply but will need to coordinate their response with the various summer
27 professional and travel conflicts for clients and counsel that will exist during the late July and
28 August time-frame; the parties will file the aforementioned Stipulation and [Proposed] Order

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STIPULATION AND [PROPOSED] ORDER
Case No. 3:16-cv-00935-RS

1 promptly after the meet-and-confer;
2

F. Plaintiff intends to file one combined brief in response to the separate anti-SLAPP

3 motions filed by defendants and believes he will need up to 40 pages, instead of the 25 allotted by
4 the Local Rules per motion, to address Defendants’ motions and supplemental brief. Defendants
5 do not object to the requested extension and page limit request and anticipate that in the stipulation
6 referenced in Paragraph E above, Defendants may request a modest increase of the otherwise
7 applicable page limits for the Reply brief(s);
8

G. Plaintiff intended to name as Defendants all of the members of Defendant Motion

9 Picture Association of America, Inc. (“MPAA”) but named The Walt Disney Company, which is
10 not an MPAA member; Plaintiff therefore wishes to substitute Walt Disney Studios Motion
11 Pictures, which is an MPAA member, in place of The Walt Disney Company (which is hereby
12 dismissed) as a Defendant;
13

H. The CMC is currently on calendar for May 26, 2016, but the parties respectfully submit

14 that it would be a more efficient use of judicial resources, as well as the resources of the parties,
15 for they and the Court not to spend the time necessary to develop and set the discovery plan and
16 case schedule mandated by Rules 16(b) and 26(f) until after the Court determines whether
17 Plaintiff’s action will survive Defendants’ dispositive motions and, if any part of it does survive,
18 which claims will continue and require discovery and which will not; and
19

I. No prior extensions of time have been sought for Plaintiff's Opposition to Defendants'

20 motions.
21

NOW, THEREFORE, the parties hereby stipulate that, subject to the Court’s approval:

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1. Plaintiff’s Opposition to Defendants' motions is due on or before July 15, 2016;

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2. Plaintiff’s Opposition brief to the anti-SLAPP motions shall not exceed 40 pages of text

24 (exclusive of caption page and tables);
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3. Defendants’ anti-SLAPP motion is akin to a Rule 12 and not a Rule 56 Motion. Plaintiff

26 stipulates that he will not seek to conduct any discovery to respond to the anti-SLAPP motion or
27 the motion to dismiss unless defendants’ reply memoranda attempts to convert the motions to Rule
28 56 motions. Defendants stipulate that by entering into this stipulation plaintiff has not waived any

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STIPULATION AND [PROPOSED] ORDER
Case No. 3:16-cv-00935-RS

1 right to claim that the California anti-SLAPP statute should not be applied in any manner to this
2 case;
3

4. Within one week of the filing of Plaintiff’s Opposition, the parties shall meet-and-

4 confer on the date for Defendants to file their Reply brief(s) and a proposed hearing date on the
5 motions, and the parties thereafter shall promptly submit a Stipulation and [Proposed] Order for
6 the Court’s review;
7

5. Walt Disney Studios Motion Pictures is substituted in place of The Walt Disney

8 Company as a Defendant in the case, and The Walt Disney Company is dismissed; and
9

6. The CMC currently scheduled for May 26, 2016 shall be vacated, and following the

10 Court’s ruling the Defendants’ pending dispositive motions, the Court shall, if necessary,
11 reschedule the CMC a trial setting conference for a date not to exceed one month from the Court’s
12 ruling on Defendant’s dispositive motions, unless the Court finds good cause at the time to set the
13 CMC for a later date.
14

IT IS SO STIPULATED.

15 DATED: May 15, 2016

LAW OFFICES OF DAVID SCHACHMAN, P.C.

16
17

By:

/s/ David Schachman
DAVID SCHACHMAN

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One of the Attorneys for Plaintiff Timothy Forsyth
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20 DATED: May 15, 2016

MUNGER, TOLLES & OLSON LLP

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22

By:

/s/ Kelly M. Klaus
KELLY M. KLAUS

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Attorneys for Defendants Motion Picture Association of
America, Inc., The Walt Disney Company, Paramount
Pictures Corporation, Sony Pictures Entertainment Inc.,
Twentieth Century Fox Film Corporation, Universal
City Studios LLC, and Warner Bros. Entertainment Inc.

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STIPULATION AND [PROPOSED] ORDER
Case No. 3:16-cv-00935-RS

1 DATED: May 15, 2016

BRYAN CAVE LLP

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By:

/s/ K. Lee Marshall
K. LEE MARSHALL

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Attorneys for Defendant National Association of
Theatre Owners

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STIPULATION AND [PROPOSED] ORDER
Case No. 3:16-cv-00935-RS

1 THE COURT FINDS GOOD CAUSE EXISTS FOR THE PARTIES’ STIPULATION AND ON
2 THAT BASIS THE FOREGOING STIPULATION IS APPROVED AND IS SO ORDERED.
5/17/16
3 DATED: _________________________
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_______________________________________
HONORABLE RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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STIPULATION AND [PROPOSED] ORDER
Case No. 3:16-cv-00935-RS