Xiaoning et al v. Yahoo! Inc, et al

Filing 94

MOTION to Enlarge Time to Respond to Defendants' Motions to Dismiss and Associated Motions, Pending a Decision on Plaintiffs' Motion for Initial and Jurisdictional Discovery; Alternative Motion for an Enlargement of Time for Plaintiffs' Response filed by Wang Xiaoning, Shi Tao, Yu Ling. (Attachments: # 1 Proposed Order)(Myers, Roger) (Filed on 9/14/2007) Modified on 9/17/2007 (cp, COURT STAFF).

Xiaoning et al v. Yahoo! Inc, et al

Doc. 94

Case 4:07-cv-02151-CW

Document 94

Filed 09/14/2007

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Morton, H. Sklar, Executive Director [e-mail] World Organization for Human Rights USA 2029 P Street NW, Suite 301 Washington, DC 20036 Telephone: [phone] Facsimile: [phone] [Admitted Pro Hac Vice] Roger Myers (CA State Bar No. 146164) [e-mail] HOLME ROBERTS & OWEN LLP 560 Mission Street, 25th Floor San Francisco, CA 94105-2994 Telephone: [phone] Facsimile: [phone] [Additional Attorneys Appear on Signature Page] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION WANG XIAONING, YU LING, SHI TAO, and ADDITIONAL PRESENTLY UNNAMED AND TO BE IDENTIFIED INDIVIDUALS, Plaintiffs, v. Case No. C07-02151 CW TORT DAMAGES CLAIM

PLAINTIFFS' MOTION TO ENLARGE TIME TO RESPOND TO DEFENDANTS' MOTIONS TO DISMISS AND ASSOCIATED YAHOO, INC., a Delaware Corporation, MOTIONS, PENDING A DECISION ON YAHOO! HONG KONG, LTD., a Foreign PLAINTIFFS' MOTION FOR INITIAL AND Subsidiary of Yahoo!, AND OTHER JURISDICTIONAL DISCOVERY; PRESENTLY UNNAMED AND TO BE ALTERNATIVE MOTION FOR AN IDENTIFIED CORPORATE DEFENDANTS ENLARGEMENT OF TIME FOR AND UNNAMED AND TO BE PLAINTIFFS' RESPONSE; AND PROPOSED IDENTIFIED INDIVIDUAL EMPLOYEES ORDER OF SAID CORPORATIONS, Defendants. Administrative Motion: No Hearing Required; To Be Decided on Written Submissions. Expedited Decision Respectfully Requested by Sept. 21, 2007, or Sept. 25 at the latest. Judge: Hon. Claudia Wilken

Dockets.Justia.com

Case 4:07-cv-02151-CW

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Pursuant to Civil Local Rules 6-1, 6-3, 7-11, and 16-2(d), Plaintiffs Wang Xiaoning, Yu Ling, and Shi Tao move for an enlargement of time and an order holding in abeyance the Response from the Plaintiffs on Defendants' three Motions to Dismiss and two associated Motions, due on September 26, 2007, until after the Court decides Plaintiffs' accompanying Motion for Initial and Jurisdictional Discovery, filed concurrently with this Motion and noticed for a consolidated hearing with the Case Management Conference on November 1, 2007. If the Court orders limited and jurisdictional discovery, Plaintiffs will file their opposition to the Defendants' five motions within 14 days of completing discovery. If the Court denies Plaintiffs' motion for limited and jurisdictional discovery, Plaintiffs will file their opposition to Defendants' motions within 14 days of that order. In the alternative, if the Court does not approve this Motion to Enlarge the Time for the Response relative to the pending Motion for Initial and Jurisdictional Discovery, Plaintiffs request a 21-day enlargement of time for filing their Response to Defendants' Motions, due to the number of motions Defendants filed on August 27, the complex factual and legal issues raised in those Motions, and the numerous supporting declarations and documents Defendants submitted with the Motions. Plaintiffs respectfully request an expedited decision on this administrative motion by September 21, 2007, or if that is not possible then by September 25, because the deadline to file their Response to the Motions to Dismiss and associated Motions is now scheduled for September 26, pursuant to the Court's Order of July 26, 2007, which also established August 27 as the deadline for Defendants to respond to the Complaint. Plaintiffs move for this extension of time and abeyance of the briefing schedule because, concurrent with this Motion, Plaintiffs are filing a Motion for Initial and Jurisdictional Discovery in order to properly respond to Defendants' three motions to dismiss (Motion to Dismiss for Lack of Personal Jurisdiction over Yahoo! Hong Kong, Motion to Dismiss for lack of subject matter jurisdiction under Federal Rules 12(b)(1) and (7), Motion to Dismiss under Rule 12(b)(6) for failure to state a claim), and the two accompanying motions filed on the same day (a Motion to Strike State of California Causes of Action Pursuant to the Anti-SLAPP Statute and an Alternative Motion for a More Definite Statement under Rule 12(e)). In these five motions,
[Proposed] Order Enlarging Time for Plaintiffs' Response to Defendants' Motions to Dismiss and Associated Motions Case No. C07-02151 CW

Case 4:07-cv-02151-CW

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Defendants have raised a number of complex arguments as to why this court should not exercise jurisdiction over these proceedings, and have supplemented their arguments with a substantial number of factual presentations and documents. As indicated in the accompanying motion to initiate limited discovery, the various relevant subsections of Rule 12 of the Federal Rules of Civil Procedure and the case law interpreting those provisions recognize the right of the non-moving party to obtain the facts that they need to properly and fairly counter the moving party's claims through initial or jurisdictional discovery, and to place in abeyance the court's consideration and resolution of the Defendants' motions, including submission of the non-moving party's substantive response to the Motions to Dismiss, until the limited discovery process is completed. This cannot happen under the current briefing schedule, which requires Plaintiffs to file their opposition on September 26, more than a month before the hearing on their discovery motion, scheduled to take place on November 1. Simply put, requiring Plaintiffs to file their opposition on September 26 would make Plaintiffs' motion for initial and jurisdictional discovery moot. As noted above, Plaintiffs are not requesting an indefinite postponement of their opposition brief. Plaintiffs merely move that the standing Court-ordered briefing schedule on the Defendants' motions be put on hold until the Court issues a decision on the Motion for Initial and Jurisdictional Discovery, at which point the existing schedule will resume immediately. Plaintiffs' opposition brief will be due either (1) 14 days after the 30-day period for initial and jurisdictional discovery is completed, or (2) 14 days after the Court denies Plaintiffs' Motion for Initial and Jurisdictional Discovery. Plaintiffs note that Defendants had more than three months to prepare the extensive motions to dismiss they filed on August 27. As set forth in the Court order of July 26, 2007, Defendants' reply to the opposition will be due 21 days after Plaintiffs file their Response to the Motions to Dismiss and associated Motions. Plaintiffs request that the hearing on November 1, 2007, which is currently noticed by Defendants and pursuant to the Court's July 26, 2007 order as the date for a consolidated hearing on all pending motions and the Case Management Conference, be maintained as the date for a consolidated hearing on Plaintiffs' motion for initial and jurisdictional discovery and the Case
[Proposed] Order Enlarging Time for Plaintiffs' Response to Defendants' Motions to Dismiss and Associated Motions

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Management Conference. This proposal allows the Court to keep the Case Management Conference on its current schedule, and simultaneously consider how Plaintiffs' motion to initiate limited discovery to respond to the pending motions fits into the comprehensive discovery plan for the case, which the Court will consider at the Case Management Conference. Thus the stay will not delay the overall progress of the case, and in fact will provide all parties and the Court with the opportunity to consider a more complete and thoughtful Case Management Statement than might otherwise be possible at this early stage of the litigation. Plaintiffs' proposed order states that the new date for hearing the Motions to Dismiss and associated motions will be determined pursuant to the Court's decision on Plaintiffs' Motion for Initial and Jurisdictional Discovery, since whether the Court grants that motion will determine the subsequent briefing schedule and hearing date. Plaintiffs have not sought any previous extension of time with respect to their response to these motions, although Plaintiffs did enter into a Joint Stipulation at the Defendants' request to extend time for their response to the Plaintiffs' Complaint, which took the form of the Defendants' motions filed on August 27. As a result of that Joint Stipulation, Defendants had more than three months to prepare their Motions to Dismiss and associated Motions. Defendants oppose the relief sought through the main motion and the alternative motion for the reasons stated in the accompanying declaration of Morton Sklar, and have rejected all of the Plaintiffs' requests for a joint stipulation for enlargement of time, despite approximately three and one half hours of meet-and-confer telephonic discussions on these matters over a three-day period. In the alternative, if the Court does not approve the Plaintiffs' request to enlarge time and stay briefing on Defendants' August 27 motions while Plaintiffs' Motion for Initial and Jurisdictional Discovery is pending, Plaintiffs move for a 21-day enlargement of time for their opposition, to be filed on October 14, 2007. This enlargement of time is made necessary by the extensive number of motions Defendants filed on August 27, the length of those Motions, the number of exhibits and declarations filed with them, and the complexity of their allegations. Plaintiffs could not have anticipated the multitude of motions Defendants filed on August 27 and
[Proposed] Order Enlarging Time for Plaintiffs' Response to Defendants' Motions to Dismiss and Associated Motions

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will require additional time to properly respond to the issues raised by the motions. Plaintiffs' attempts to secure a joint stipulation on this alternative motion were not successful, though Defendants initially indicated they would probably be favorably disposed to supporting this request. But as described in the accompanying declaration of Morton Sklar, Defendants now oppose both holding the submission of Plaintiffs' Response to their motions in abeyance pending initial discovery, and an extension of time for the Response to be filed, taking the position that since they are categorically opposed to the requested initial and jurisdictional discovery, they will not accede to a delay in filing a Response to their motions that is linked in any way to jurisdictional discovery, or to holding the Plaintiffs' Response to their motions in abeyance pending such discovery.

[Proposed] Order Enlarging Time for Plaintiffs' Response to Defendants' Motions to Dismiss and Associated Motions

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Respectfully submitted this 14th day of September, 2007, by MORTON SKLAR THERESA HARRIS WORLD ORGANIZATION FOR HUMAN RIGHTS USA By: /s/ Morton Sklar Morton Sklar ROGER MYERS HOLME ROBERTS & OWEN LLP By: /s/ Roger Myers Roger Myers Attorneys for Plaintiffs Karen Parker (CA State Bar No. 112486) Association of Humanitarian Lawyers 154 5th Avenue San Francisco, CA 94118 Telephone: [phone] E-mail: [e-mail] With the assistance of: Albert Ho Chun-Yan Legal Representative for Shi Tao Hong Kong Jessica Anna Cabot, American University Washington College of Law Rifk Ebeid, George Mason University Law School Danielle Rosché, George Washington University Law School Legal Interns

[Proposed] Order Enlarging Time for Plaintiffs' Response to Defendants' Motions to Dismiss and Associated Motions

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Case No. C07-02151 CW