Keller v. Electronic Arts Inc. et al

Filing 855

ORDER by Judge Claudia Wilken RESOLVING MISCELLANEOUS ( #833 , #834 , #836 , #838 ) MOTIONS. (ndr, COURT STAFF) (Filed on 9/10/2013) Modified on 9/11/2013 (cpS, COURT STAFF).

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 No. C 09-1967 CW IN RE NCAA STUDENT-ATHLETE NAME & LIKENESS LICENSING LITIGATION ________________________________/ 8 9 ORDER RESOLVING MISCELLANEOUS MOTIONS (Docket Nos. 833, 834, 836, 838, 840) On July 19, 2013, Antitrust Plaintiffs filed a Third Consolidated Class Action Complaint (3CAC). Defendants filed United States District Court For the Northern District of California 10 several motions in response. 11 Electronic Arts Inc. (EA) moved for leave to file a motion to 12 dismiss the 3CAC. 13 Athletic Association (NCAA) filed its own motion for leave to file 14 a motion to dismiss, along with a motion for additional briefing 15 and an evidentiary hearing on Plaintiffs’ pending motion for class 16 certification. 17 Defendant Collegiate Licensing Company (CLC) moved to strike 18 certain allegations from the 3CAC. 19 under submission without oral argument. First, on July 29, 2013, Defendant The next day, Defendant National Collegiate Finally, two days later, on August 1, 2013, The Court took these matters 20 The Court grants Defendants’ requests for leave to file 21 motions to dismiss, denies NCAA’s motion for additional briefing, 22 and denies CLC’s motion to strike. 23 delay this case further, but finds itself compelled to allow an 24 additional round of motions, albeit on prompt and restricted 25 additional briefing, due to Defendants' insistence on pursuing all 26 available procedural steps, and the untimely changes in 27 Plaintiffs' theory of the case. 28 // The Court is reluctant to 1 BACKGROUND 2 Antitrust Plaintiffs moved to certify a class in September 2012. 4 opposing it, Defendants moved to strike Antitrust Plaintiffs’ 5 class certification motion. 6 raised a new theory of antitrust liability -- one based on an 7 alleged horizontal restraint -- which Plaintiffs had not 8 previously plead. 9 it allowed Defendants to file supplemental briefing in response to 10 United States District Court For the Northern District of California 3 Plaintiffs’ class certification motion so that they could address 11 any new antitrust theories raised in Plaintiffs’ motion. Docket 12 No. 673, Order on Defendants’ Motion to Strike, at 1-2. The Court 13 also considered the briefing on the motion to strike as part of 14 Defendants’ opposition to Plaintiffs’ class certification motion. 15 Id. at 1. 16 Docket No. 554. In October 2012, instead of simply They argued that Plaintiffs’ motion Although the Court denied the motion to strike, At the hearing, the Court acknowledged that Plaintiffs had 17 raised a new theory of antitrust liability in their class 18 certification motion but noted that, because Defendants had been 19 able to attack this new theory in their motion to strike and in 20 supplemental briefs, another round of pleading and briefing on a 21 motion to dismiss would be duplicative, costly and time-consuming. 22 The Court also pointed out that Defendants would have another 23 opportunity to attack the merits of Plaintiffs' claims on a motion 24 for summary judgment, which was then scheduled to be briefed 25 beginning September 26, 2013. 26 Nonetheless, Defendants insisted that it would be useful for 27 Plaintiffs to file an amended complaint explicitly addressing 28 their new theory of antitrust liability. 2 Accordingly, the Court 1 instructed Antitrust Plaintiffs to amend their complaint "only the 2 minimum amount necessary to conform Antitrust Plaintiffs’ portion 3 of the complaint to their class certification motion.” 4 830. 5 named Plaintiff who is a current student-athlete” to the 6 complaint. 7 not file an additional motion to dismiss or for judgment on the 8 pleadings and shall instead include any arguments they would have 9 made therein in their future motions for summary judgment.” Docket No. The Court also permitted Antitrust Plaintiffs to “add a new Id. The Court’s order concluded, “Defendants shall Id. United States District Court For the Northern District of California 10 After Plaintiffs filed their amended complaint, Defendants filed 11 the instant motions. 12 13 14 DISCUSSION I. Motions for Leave to File Motions to Dismiss EA and NCAA request leave to file further motions to dismiss. 15 They each argue that they must be permitted to test the legal 16 sufficiency of any new theory in the 3CAC before the Court 17 certifies a class. 18 ample opportunity to respond to Antitrust Plaintiffs’ new theory, 19 as discussed above, the Court nevertheless grants their request. 20 Defendants may intend to seek an interlocutory appeal of any class 21 certification order, and the Court does not wish to leave open a 22 claim that they were not allowed to present all of their 23 arguments. 24 Although these Defendants have already had Accordingly, NCAA may file a motion to dismiss within seven 25 days of this order. 26 support of the motion, NCAA shall first cite, by docket number, 27 page and line, each of the arguments it has previously made, that 28 it would like the Court to reconsider, against any new issues It shall not be noticed for hearing. 3 In raised by the 3CAC. 2 raised in the joint motion to strike Plaintiffs’ class 3 certification motion, Docket No. 639, the several briefs 4 Defendants filed subsequently in opposition to class 5 certification, Docket Nos. 677, 680, 794, 789, or the briefs 6 Defendants filed in support of their motions for leave to file a 7 motion to dismiss, Docket Nos. 834, 838, for leave to file 8 additional briefs, Docket No. 836, or to strike, Docket No. 840. 9 NCAA likewise may cite to but may not repeat facts and law in EA’s 10 United States District Court For the Northern District of California 1 May 2011 motion to dismiss, Docket No. 331, and EA’s October 2011 11 motion for judgment on the pleadings, Docket No. 366. 12 wishes to argue facts or law that is not contained in any of these 13 briefs, it may file a memorandum only as long as necessary to do 14 so, but not to exceed ten pages. 15 NCAA may not repeat any of the arguments If NCAA The Court will accept EA's proposed brief in support of its 16 motion to dismiss and EA shall efile it forthwith. 17 consider these arguments as they may relate to CLC as well. 18 CLC now wishes to move to dismiss, it may file a further brief in 19 support, under the conditions set forth above. 20 The Court will If While Antitrust Plaintiffs note that granting Defendants 21 leave to file further motions to dismiss will likely delay the 22 progress of this case, and the Court is reluctant to do so, 23 Antitrust Plaintiffs contributed to this delay by raising a new 24 theory of their case at this relatively late stage in the 25 litigation. 26 Antitrust Plaintiffs may file a single brief in opposition to 27 the motions to dismiss, not to exceed the number of pages of 28 argument filed by Defendants, within seven days of the filing of 4 1 NCAA's motion to dismiss. 2 portions of the previous briefing that they would like the Court 3 to consider with regard to Defendants' motions, and may not repeat 4 any facts or law contained therein. 5 to five pages, addressing only new matter in Plaintiffs' 6 opposition, within three days thereafter. 7 joint five-page reply by the same date. 8 motions on the papers. 9 II. Plaintiffs too must begin by citing all NCAA may file a reply of up EA and CLC may file a The Court will decide the 10 NCAA’s Motion for Additional Briefing and an Evidentiary Hearing United States District Court For the Northern District of California NCAA requests additional briefing and an evidentiary hearing 11 on class certification “to address the new issues introduced by 12 the [3]CAC’s allegations.” Docket No. 836, Mot. Additional Br., 13 at 2. Because NCAA is granted leave to file a motion to dismiss 14 the 3CAC, its request for additional briefing and a hearing is not 15 warranted. NCAA has already been granted leave to exceed the page 16 limits for its class certification briefs and received extensive 17 argument time -- more than either of its co-Defendants -- at the 18 class certification hearing. See Docket Nos. 676, 789-90. 19 Additional briefing and argument on class certification is not 20 likely to be useful. There is no justification for the 21 extraordinary step of convening an evidentiary hearing. 22 III. CLC’s Motion to Strike 23 CLC’s motion to strike contains two parts. First, CLC seeks 24 to strike any allegations in the 3CAC that pertain to “products 25 such as jerseys, bobbleheads, trading cards, action figures, and 26 photographs, which Plaintiffs admitted at the June 20, 2103 Class 27 Certification Hearing and Case Management Conference are no longer 28 5 1 part of the litigation.” 2 Second, CLC seeks to remove four of the recently added current 3 student-athletes from the 3CAC on the grounds that Plaintiffs were 4 only granted permission to add one current student-athlete -- 5 rather than five -- to their complaint.1 6 CLC’s first request is denied. Docket No. 840, CLC Mot. Strike 3-4. None of Plaintiffs’ 7 allegations regarding jerseys, bobbleheads, and other merchandise 8 is new to the 3CAC. 9 sufficient specificity which of these allegations it seeks to CLC has also failed to identify with United States District Court For the Northern District of California 10 strike. 11 “contains pages and pages of immaterial and impertinent 12 allegations” without identifying any specific sentences that 13 should be stricken). 14 not to pursue certain theories does not necessarily require that 15 particular allegations be ordered stricken from the complaint. 16 See CLC Mot. Strike 3 (arguing that the complaint Antitrust Plaintiffs' voluntary intention CLC’s request to remove four of the new named Plaintiffs is 17 also denied. 18 stated that Plaintiffs “may add a new named Plaintiff who is a 19 current student-athlete,” Docket No. 830, the Court's turn of 20 phrase was not intended as a limitation. 21 logistical reasons, often involve multiple named plaintiffs as 22 proposed class representatives. Courts have broad discretion to 23 permit joinder of new parties. See Fed. R. Civ. P. 21 (“On motion 24 or on its own, the court may at any time, on just terms, add or 25 drop a party.”). Although CLC is correct that the Court’s order Class actions, for CLC has not shown that it will be prejudiced by 26 27 28 1 Plaintiffs initially added six current student-athletes to the complaint but one voluntarily dismissed his claims on July 30, 2013. See Docket No. 835. 6 1 the inclusion of the four additional student-athletes here. 2 Although CLC asserts that it will need to take discovery of the 3 new Plaintiffs, CLC has not shown that these additional efforts 4 will be burdensome. 5 five days for the limited purpose of taking written discovery and 6 depositions of the new named Plaintiffs.2 The Court re-opens fact discovery for thirty- 7 CONCLUSION 8 For the reasons set forth above, EA’s motion for leave to 9 file a motion to dismiss (Docket No. 834) is GRANTED; NCAA’s United States District Court For the Northern District of California 10 motion for leave to file a motion to dismiss (Docket No. 838) is 11 GRANTED; NCAA’s motion for additional briefing and an evidentiary 12 hearing (Docket No. 836) is DENIED; and CLC’s motion to strike 13 (Docket No. 840) is DENIED. 14 remove an incorrectly filed document (Docket No. 833) is DENIED 15 because the incorrectly filed document has already been sealed. 16 Additionally, Plaintiffs’ motion to NCAA and CLC may file their motions to dismiss, as outlined 17 above, within seven days of the date of this order. 18 may respond within seven days and Defendants may file their 19 replies three days thereafter. 20 Plaintiffs Should any Defendant obtain any information to suggest that 21 any of the new named Plaintiffs is not an adequate or typical 22 class representative, it may promptly seek leave to file an 23 appropriate motion with the Court. 24 certifying a class of current student athletes has issued and been If by that time, an order 25 26 27 28 2 CLC requests, in the alternative, that the Court order Plaintiffs to cover the costs of any additional discovery that it may need to take regarding the newly added student-athletes. This request -- which would remove CLC’s incentives for seeking tailored and efficient discovery -is neither justified nor practical. 7 1 appealed, Defendants may file a request for a suggestion of 2 remand. 3 Fed. R. App. P. 12-1(b). The antitrust case deadline to exchange opening expert 4 reports on the merits is continued to September 25, 2013. 5 deadline to depose experts on opening reports is continued to 6 October 15, 2013. 7 reports is continued to November 5, 2013. 8 experts on rebuttal reports is continued to November 12, 2013. 9 The The deadline to exchange rebuttal expert The deadline to depose The deadline for Antitrust Plaintiffs to file any dispositive United States District Court For the Northern District of California 10 motion, including any Daubert motion, is continued to November 7, 11 2013. 12 including any Daubert objections, in a single brief, on or before 13 December 5, 2013. 14 be included in separate sections of the brief. 15 Plaintiffs shall file their reply and opposition in a single brief 16 on or before January 6, 2014. Defendants shall file their reply 17 on or before February 3, 2014. The Court shall hear the motions 18 and hold a case management conference on February 20, 2014, at 19 2:00 p.m. 20 Defendants shall file their opposition and cross-motion, Arguments applicable to only one Defendant may Antitrust If any party seeks to file any other motion addressing any 21 claims or defenses, or class certification, it must first obtain 22 leave of the Court to do so by filing an administrative motion 23 under Local Rule 7-ll. 24 management schedule must be preceded by meeting and conferring and 25 must be made in an administrative motion. 26 must be presented to the discovery Magistrate Judge in accordance 27 with his procedures. Any request for a change to the case 28 8 Any discovery disputes 1 2 3 A final pretrial conference shall be held on May 28, 2014. Trial shall begin at 8:30 a.m. on June 9, 2014. Fact discovery regarding Right-of-Publicity Plaintiffs' 4 claims shall open when the Ninth Circuit lifts its stay. 5 two weeks of the Ninth Circuit's decision to lift the stay, the 6 parties shall file a stipulated case management schedule, or their 7 separate proposals, for the right-of-publicity claims. 8 Within IT IS SO ORDERED. 9 United States District Court For the Northern District of California 10 11 Dated: 9/10/2013 CLAUDIA WILKEN United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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