O'Bannon, Jr. v. National Collegiate Athletic Association et al

Filing 56

MOTION to Extend All Deadlines Pending Determination on Motion to Consolidate Actions filed by Edward C. O'Bannon, Jr.. (Attachments: #1 Affidavit Declaration of Jon T. King, #2 Proposed Order Proposed Order)(King, Jon) (Filed on 9/1/2009) Modified on 9/2/2009 (cp, COURT STAFF).

O'Bannon, Jr. v. National Collegiate Athletic Association et al

Doc. 56

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Robert B. Carey (pro hac vice) Leonard W. Aragon (pro hac vice) HAGENS BERMAN SOBOL SHAPIRO LLP 2425 East Camelback Road, Suite 650 Phoenix, Arizona 85016 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail] Counsel for Plaintiffs in Keller Action Michael P. Lehmann (Cal. Bar No. 77152) Jon T. King (Cal. Bar No. 205073) Arthur N. Bailey, Jr. (Cal. Bar No. 248460) HAUSFELD LLP 44 Montgomery Street, 34th Floor San Francisco, CA 94104 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail] [e-mail] Counsel for Plaintiffs in O'Bannon Action [Additional counsel listed on signature page] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAMUEL MICHAEL KELLER, on behalf of himself and all others similarly situated, Plaintiff, v. ELECTRONIC ARTS, INC., NATIONAL COLLEGIATE ATHLETICS ASSOCIATION; COLLEGIATE LICENSING COMPANY, Defendants. Case No. CV 09 1967 (CW) PLAINTIFFS SAMUEL MICHAEL KELLER'S AND EDWARD C. O'BANNON, JR.'S JOINT MOTION TO EXTEND ALL DEADLINES PENDING DETERMINATION ON MOTION TO CONSOLIDATE ACTIONS Judge: The Hon. Claudia Wilken

PLAINTIFFS' JOINT MOTION TO EXTEND ALL DEADLINES Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW)

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Dockets.Justia.com

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EDWARD C. O'BANNON, JR., on behalf of himself and all others similarly situated, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION (a/k/a the "NCAA"); and COLLEGIATE LICENSING COMPANY (a/k/a "CLC"), Defendants.

Case No. CV 09-3329 (CW)

Judge: The Hon. Claudia Wilken

I. STATEMENT OF ISSUES TO BE DECIDED. Pursuant to Civil L.R. 7-4, Plaintiffs Samuel Michael Keller and Edward C. O'Bannon, Jr. (collectively, "Plaintiffs"), plaintiffs in the two above-captioned actions (the "Keller" and "O'Bannon" actions, respectively), state that the issue to be decided is whether all case deadlines in both the Keller and O'Bannon actions should be extended pursuant to Civil L.R. 6-3 pending a determination on Plaintiffs' Joint Motion to Consolidate Actions, filed concurrently herewith. II. ARGUMENT. Pursuant to Civil L.R. 6-3 ("Motion to Change Time"), Plaintiffs jointly move to extend all case deadlines pending a determination on their Motion to Consolidate Actions. A short, omnibus extension will promote efficiencies by preventing the simultaneous litigation of overlapping actions that have a strong likelihood of being consolidated, and Defendants will suffer no prejudice as a result. As explained in the Motion to Consolidate, both actions are putative nationwide class actions brought on behalf of similar groups of current and former collegiate student-athletes who compete or competed in men's Division I basketball and football pursuant to the rules of the National Collegiate Athletic Association (the "NCAA") and whose images have been licensed and/or used without consent and compensation. The actions share two common defendants (the NCAA and the Collegiate Licensing Company ("CLC)), a common co-conspirator in Electronic
PLAINTIFFS' JOINT MOTION TO EXTEND DEADLINES 1 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW)

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Arts, and contain overlapping factual allegations. Consequently, the litigation of the cases will undoubtedly involve common witnesses, experts, and discovery. Moreover, in the O'Bannon action, the NCAA and the CLC have already agreed to a schedule relating to motion to dismiss briefing that envisions Plaintiff filing an amended complaint. At minimum, O'Bannon expects to add Electronic Arts as a defendant, which will further increase the overlap between the two actions. With respect to Plaintiff Keller, he is entitled as a matter of right to amend his complaint because Defendants have not filed answers. See Fed R. Civ. Proc. 15(a)(1) (plaintiff "may amend its pleading once as a matter of course: (A) before being served with a responsive pleading; . . ."; Fed. R. Civ. Proc. 7(a) and 7(b) (distinguishing between pleadings and motions).1 Both Plaintiffs are entitled to amend their complaints as a matter of right, and desire to do so in the form of a consolidated amended complaint. Defendants' pending motions to dismiss and strike in the Keller action therefore are moot and not a proper basis for a claim of prejudice. Moreover, their work on those motions is likely to be useful with respect to future dismissal attempts in the consolidated matter. Significantly, this Court has already determined in its Related Case Order dated August 11, 2009 that the two actions are related. See Keller Dkt. Entry No. 59; O'Bannon Dkt. Entry No. 27). In issuing that Order, the Court implicitly found that the Keller and O'Bannon actions "concern substantially the same parties, property, transaction or event," and that "[i]t appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges." Civil L.R. 3-12 ("Related Cases").

See also Advisory Committee Notes to 2009 Amendments to Fed. R. Civ. Proc. 15 (discussing amendments not effective until December 1, 2009, and noting that prior to December 1, 2009, "[s]erving a motion attacking the pleading did not terminate the right to amend, because a motion is not a `pleading' as defined in Rule 7."). PLAINTIFFS' JOINT MOTION TO EXTEND DEADLINES 2 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW)

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As the Manual for Complex Litigation, Fourth, notes, "[a]ll related civil cases pending in the same court should initially be assigned to a single judge to determine whether consolidation, or at least coordination of pretrial proceedings, is feasible and is likely to reduce conflicts and duplication." Manual for Complex Litigation, Fourth ("MCL 4th"), § 20.11. Following the issuance of the Related Case Order, Plaintiffs' counsel met and conferred on how the two actions might proceed together in the most efficient and expeditious way possible, and concluded that the actions should be consolidated pursuant to Rule 42 of the Federal Rules of Civil Procedure.2 Plaintiffs therefore have requested that the Court consolidate the two actions as permitted under Rule 42(a) to further effect substantial preservation of time, effort, and resources of the Court and the parties, as well as to avoid potentially inconsistent adjudications. The standard for consolidation is not a particularly high one. Rule 42(a) provides that, "[i]f actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay." Fed. R. Civ. P. 42(a). Subsection (b) of Rule 42 further provides a court with flexibility to "order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims." As is readily apparent, the Keller and O'Bannon actions meet the criteria of sharing common questions. Plaintiffs requested that Defendants agree to an extension of all deadlines in the actions until the Court makes a determination on the Motion to Consolidate. This omnibus extension clearly would prevent inefficiencies that would otherwise result from the litigation of multiple overlapping cases, and would impose only a short delay in the litigation. Plaintiffs also propose in the Motion to Consolidate to file a consolidated amended complaint within 10 days of

Plaintiffs have met and conferred with counsel for Defendants, and they do not agree that the actions should be consolidated. See accompanying Declaration of Jon T. King ("King Decl., ¶ 3). PLAINTIFFS' JOINT MOTION TO EXTEND DEADLINES 3 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW)

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any Order granting the motion, thus further minimizing any delay in the actions. Nonetheless, Defendants have not agreed to Plaintiffs' proposal. The deadlines affected by this Motion and previous time modifications are as follows: Keller Action: September 3, 2009 (deadline for any opposition to Plaintiff's Motion for Appointment of Interim Lead Counsel); September 10, 2009 (deadline for Plaintiff's reply in support of Motion for Appointment of Interim Lead Counsel); September 18, 2009 (deadline for Defendants' replies in support of their three motions to dismiss, and Defendant Electronic Arts' motion to strike; see Dkt. Entry No. 68); September 24, 2009 (hearing on Plaintiff's motion for appointment of interim lead counsel; see Dkt. Entry No. 61); and October 1, 2009 (hearing on motions to dismiss and motion to strike; Case Management Conference; see Dkt. Entry No. 68).3 The previous time modifications in the Keller action are as follows: Stipulation Extending Time to File and Serve Responsive Pleadings (extending deadline for Defendants' responses to complaint to July 29, 2009; Dkt. Entry No. 12); Order Setting Briefing Schedule and Hearing Date on Defendants' Motions to Dismiss and Special Motion to Strike Plaintiff's Complaint (setting Plaintiffs' opposition brief deadline of August 24, 2009, Defendants' reply brief deadline of September 10, 2009, and a hearing for September 24, 2009; Dkt. Entry No. 25); Amended Order Setting Briefing Schedule and Hearing Date on Defendants' Motions to Dismiss and Special Motion to Strike Plaintiff's Complaint (repeating above dates and further resetting Case Management Conference from August 11, 2009 to September 24, 2009; Dkt. Entry No. 26); and

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Plaintiffs are uncertain whether the Court, in its Order Granting Administrative Plaintiffs' Administrative Motion for Extension of Time for Plaintiff to File Opposition Paper, filed August 28, 2009 (Keller Dkt. Entry No. 68), intended to move the hearing on Plaintiff's motion for appointment of interim lead counsel to October 1. The Order only addresses moving the hearing on the motions to dismiss and motion to strike to that date, and additionally moves the Case Management Conference to that date from September 24, 2009. PLAINTIFFS' JOINT MOTION TO EXTEND DEADLINES 4 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW)

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Order Granting Administrative Plaintiffs' Administrative Motion for Extension of Time for Plaintiff to File Opposition Paper (extending deadline for Plaintiff's oppositions to the motions to dismiss and motion to strike from August 24, 2009 to September 1, 2009, extending deadline for reply briefs to September 18, 2009 from September 9, 2009, and setting hearing and case management conference for October 1, 2009; Dkt. Entry No. 68) O'Bannon Action: September 11, 2009 (amended complaint to be filed pursuant to stipulated agreement soon to be filed by Defendants' counsel) October 26, 2009 (Defendants' motions to dismiss to be filed pursuant to stipulated agreement soon to be filed by Defendants' counsel) The previous time modifications in the O'Bannon action are as follows: Stipulation Extending Time to File and Serve Responsive Pleadings (setting time for Plaintiff to file an amended complaint to August 21, 2009, and defendants time to file responses to complaint to September 21, 2009; Dkt. Entry No. 28); and Letter from Jon T. King to Court dated August 21, 2009 (advising Court that Defendants agreed to modified schedule for filing amended complaint and responses; Dkt. Entry No. 39) III. CONCLUSION. For the foregoing reasons, Plaintiffs respectfully request that the Court grant their motion to extend case deadlines pending a determination on Plaintiffs' Motion to Consolidate. Dated: September 1, 2009 HAGENS BERMAN SOBOL SHAPIRO LLP /s/ Robert B. Carey__________________ Robert B. Carey (pro hac vice) Leonard W. Aragon (pro hac vice) 2425 East Camelback Road, Suite 650 Phoenix, Arizona 85016 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Counsel for Plaintiff Samuel Michael Keller
PLAINTIFFS' JOINT MOTION TO EXTEND DEADLINES 5

Respectfully submitted, HAUSFELD LLP /s/ Jon T. King_____________________ Michael P. Lehmann (Cal. Bar No. 77152) Jon T. King (Cal. Bar No. 205073) Arthur N. Bailey, Jr. (Cal. Bar No. 248460) 44 Montgomery Street, 34th Floor San Francisco, CA 94104 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail] [e-mail] Counsel for Plaintiff Edward C. O'Bannon, Jr.
Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW)

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PLAINTIFFS' JOINT MOTION TO EXTEND DEADLINES 6 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW)

Steve Berman (pro hac vice) HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Fifth Avenue, Suite 2900 Seattle, Washington 98101 Telephone: [phone]Facsimile: [phone] [e-mail] Shana E. Scarlett (Cal. Bar No. 217895) HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: [phone] Facsimile: [phone] [e-mail] Additional Counsel for Plaintiff Samuel Michael Keller Michael D. Hausfeld (pro hac vice) Megan E. Jones (pro hac vice) HAUSFELD LLP 1700 K Street, NW, Suite 650 Washington, DC 20006 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail]

Stuart M. Paynter (Cal. Bar. No. 226147) THE PAYNTER LAW FIRM PLLC 1200 G Street N.W., Suite 800 Washington DC 20005 Telephone: [phone] Facsimile: [phone] [e-mail]

William A. Isaacson (pro hac vice) Tanya Chutkan (pro hac vice) Jack Simms (pro hac vice) BOIES, SCHILLER & FLEXNER LLP 5301 Wisconsin Avenue, 8th Floor Washington, DC 20015 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail] [e-mail] Jonathan W. Cuneo Daniel M. Cohen CUNEO GILBERT & LaDUCA LLP 507 C Street NE Washington, D.C. 20002 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail]

John F. Cove, Jr. (Cal. Bar No. 212213) BOIES, SCHILLER & FLEXNER LLP 1999 Harrison Street, Suite 900 Oakland, CA 94612 Tel: [phone] Fax: [phone] Email: [e-mail]

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PLAINTIFFS' JOINT MOTION TO EXTEND DEADLINES 7 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW)

Vincent J. Esades HEINS MILLS & OLSON, P.L.C. 310 Clifton Avenue Minneapolis, MN 55403 Tel: [phone] Fax: [phone] Email: [e-mail] Mitchell J. Rapp (Michigan Bar No. P43081) Shawn D. Stuckey (MN Bar No. 0388976) ZELLE HOFMANN VOELBEL & MASON LLP 500 Washington Avenue South, Suite 400 Minneapolis, MN 55415 Telephone: [phone] Facsimile: [phone] Email: [e-mail] [e-mail] Steven J. Greenfogel MEREDITH COHEN GREENFOGEL & SKIRNICK, P.C. 1521 Locust Street, 8th Floor Philadelphia, Pennsylvania 19102 Tel: [phone] Fax: [phone] Email: [e-mail]

Daniel S. Mason (Cal. Bar No. 54065) ZELLE HOFMANN VOELBEL & MASON LLP 44 Montgomery Street, Suite 3400 San Francisco, CA 94104 Tel: [phone] Fax: [phone] Email: [e-mail] Brian M. Sund Joshua G. Hauble MORRISON FENSKE & SUND, P.A. 5125 County Road 101, Suite 202 Minnetonka, MN 55345 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail] Bruce L. Simon (Cal. Bar. No. 96241) Jessica L. Grant (Cal. Bar. No. 178138) PEARSON, SIMON, WARSHAW & PENNY, LLP 44 Montgomery Street, Suite 1430 San Francisco, CA 94104 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail] Jay L. Himes Morissa Falk LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail]

Eugene A. Spector SPECTOR ROSEMAN KODROFF & WILLIS, P.C. 1818 Market Street, Suite 2500 Philadelphia, Pennsylvania 19103 Tel: [phone] Fax: [phone] Email: [e-mail]

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PLAINTIFFS' JOINT MOTION TO EXTEND DEADLINES 8 Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW)

Gordon Ball BALL & SCOTT, A PROFESSIONAL ASSOCIATION 550 Main Avenue, Suite 750 Knoxville, TN 37902 Tel: [phone] Fax: [phone] Email: [e-mail]

Stanley D. Bernstein Ronald J. Aranoff Dana Statsky Smith BERSTEIN LIEBHARD LLP 10 East 40th Street, 22nd Floor New York, New York 10016 Tel: [phone] Fax: [phone] Email: [e-mail] [e-mail] Carl A. Taylor Lopez LOPEZ & FANTEL 1510 114th Avenue Seattle, WA 98122-4024 Tel: [phone] Email: [e-mail]

Allan Steyer (Cal. Bar. No. 100318) STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP One California Street, Third Floor San Francisco, CA 94111 Tel: [phone] Fax: [phone] Email: [e-mail] Additional Attorneys for Plaintiff Edward Charles O'Bannon, Jr.

I, Jon T. King, am the ECF User whose ID and password are being used to file this PLAINTIFFS SAMUAEL MICHAEL KELLER'S AND EDWARD C. O'BANNON, JR.'S JOINT MOTION TO EXTEND DEADLINES. In compliance with General Order 45, X.B., I hereby attest that Robert B. Carey has concurred in this filing.

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CERTIFICATE OF SERVICE I, Jon T. King, declare that I am over the age of eighteen (18) and not a party to the entitled action. I am a partner in the law firm of HAUSFELD LLP. My office is located at 44 Montgomery Street, Suite 3400, San Francisco, California 94104. On September 1, 2009, I filed the following: PLAINTIFFS SAMUAEL MICHAEL KELLER'S AND EDWARD C. O'BANNON, JR.'S JOINT MOTION TO EXTEND DEADLINES; and DECLARATION OF JON T. KING IN SUPPORT OF PLAINTIFFS SAMUAEL MICHAEL KELLER'S AND EDWARD C. O'BANNON, JR.'S JOINT MOTION TO EXTEND DEADLINES with the Clerk of the Court using the Official Court Electronic Document Filing System which served copies on all interested parties registered for electronic filing. I also certify that I caused true and correct Chambers Copies of the foregoing document(s) to be hand-delivered to the following Judge pursuant to Civil L.R. 3-12(b) by noon of the next day. The Hon. Claudia Wilken, Judge U.S.D.C., Northern District of California Oakland Division 1301 Clay Street, Suite 400 S Oakland, CA 94612-5212 I declare under penalty of perjury that the foregoing is true and correct.

/s/ Jon T. King_____________________

PLAINTIFFS' JOINT MOTION TO EXTEND DEADLINES

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Case Nos. CV 09 1967 (CW) ; CV 09-3329 (CW)