Murray v. Sears, Roebuck and Co. et al
Filing
234
ORDER by Judge Claudia Wilken DENYING 167 MOTION FOR CLASS CERTIFICATION. (ndr, COURT STAFF) (Filed on 2/12/2014)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MARTIN MURRAY,
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7
No. C 09-5744 CW
Plaintiff,
ORDER DENYING
MOTION FOR CLASS
CERTIFICATION
(Docket No. 167)
v.
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SEARS, ROEBUCK AND CO., et al.,
9
Defendants.
________________________________/
United States District Court
For the Northern District of California
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Plaintiff Martin Murray brought this action against
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Defendants Sears, Roebuck and Co. and Electrolux Home Products,
13
Inc. alleging violations of California consumer protection law.
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He now moves for class certification.
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motion.
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argument and now denies the motion for the reasons set forth
17
below.
The Court took the matter under submission without oral
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19
Defendants oppose the
BACKGROUND
Murray purchased a Kenmore-brand clothes dryer from a Sears
20
store in San Bruno, California in September 2001.
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dryer for two to three years, he began to notice stains appearing
22
on his clothing.
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appear near the stains, Murray began to suspect that his dryer
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might be the cause.
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inspect the inside of the machine and observed that rust had
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developed on the frontal exterior of the dryer’s “drum,” the
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cylindrical part of the machine that holds and rotates the
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clothes.
After using the
Eventually, when tears and cuts started to
In 2007, he removed the dryer’s door to
Docket No. 199, Murray Depo. 141:2-:14.
He believed
1
that the stains, tears, and cuts in his clothing were the result
2
of his clothes coming into contact with this rust during the
3
drying process.
4
Id.
In November 2009, Murray filed this putative class action in
San Mateo County Superior Court on behalf of all California
6
consumers who purchased the same Kenmore-brand dryer that he did.
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In his complaint, he alleged that Sears and Electrolux, the
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dryer’s manufacturer, had marketed the dryer to consumers by
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promoting its “stainless steel” drum without disclosing that the
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United States District Court
For the Northern District of California
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drum’s front -- the portion of the drum that allegedly rusted --
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was actually made of a mild steel, which is more susceptible to
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corrosion and chipping.
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asserted claims against Defendants for unjust enrichment, breach
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of contract, and violations of California’s Consumer Legal
15
Remedies Act (CLRA) and Unfair Competition Law (UCL).
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removed the action to this Court in December 2009 under the Class
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Action Fairness Act.
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Based on this alleged omission, Murray
Defendants
On February 8, 2010, Defendants moved to stay this action
19
until the Seventh Circuit resolved a pending appeal in a nearly
20
identical lawsuit that had been filed in the Northern District of
21
Illinois in 2006.
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named Steven Thorogood, had purchased the same dryer model as
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Murray and -- while being represented by the same counsel as
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Murray -- asserted a similar set of claims against Sears based on
25
the company’s allegedly deceptive marketing practices.
26
Specifically, Thorogood sought to represent a nationwide class to
27
pursue claims based on violations of the Tennessee Consumer
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Protection Act, Tenn. Code. Ann. §§ 47-18-101 et seq., and
The plaintiff in that case, a Tennessee man
2
1
analogous statutes in twenty-eight other states.
2
court initially certified the class but, in 2008, the Seventh
3
Circuit reversed, holding that the case presented “no common
4
issues of law or fact, so there would be no economies from class
5
action treatment.”
6
742, 747 (7th Cir. 2008) (Thorogood I).
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explained,
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United States District Court
For the Northern District of California
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13
The district
Thorogood v. Sears, Roebuck & Co., 547 F.3d
The Seventh Circuit
Since rust stains on clothes do not appear to
be one of the hazards of clothes dryers, and
since Sears did not advertise its stainless
steel dryers as preventing such stains, the
proposition that the other half million
buyers, apart from Thorogood, shared his
understanding of Sears’s representations and
paid a premium to avoid rust stains is, to put
it mildly, implausible, and so would require
individual hearings to verify.
14
Id. at 748.
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remanded, the district court dismissed the action for lack of
16
subject matter jurisdiction and denied Thorogood’s request for
17
attorneys’ fees.
18
Defendants moved to stay the proceedings in this Court, the
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Seventh Circuit affirmed the dismissal of Thorogood’s case and the
20
denial of his request for attorneys’ fees.
21
Roebuck & Co., 595 F.3d 750, 752, 754 (7th Cir. 2010) (Thorogood
22
II) (noting that, even prior to dismissal, the court had
23
“expressed great skepticism of the merits of the plaintiff’s
24
individual claim”).
25
After the class was decertified and the case was
On February 12, 2010, less than a week after
Thorogood v. Sears,
The Seventh Circuit’s decision in Thorogood II, affirming
26
dismissal, resolved the appeal that originally served as the basis
27
for Defendants’ motion to stay in this case.
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after that decision was issued, Defendants notified the Court that
3
However, shortly
1
Sears was planning to pursue a permanent injunction in the
2
Northern District of Illinois under the All Writs Act,1 28 U.S.C.
3
§ 1651, to preclude other consumers from pursuing class-wide
4
relief against Sears based on the same claims that were dismissed
5
in Thorogood II.
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for an injunction justified a stay of Murray’s case because, if
7
the request was granted, it “would, among other things, enjoin
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plaintiff Martin Murray and his counsel in this action from
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prosecuting this action as anything other than an individual
Defendants asserted that Sears’s pending request
United States District Court
For the Northern District of California
10
action.”
11
Action or Proceeding, at 2.
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temporary stay of discovery proceedings in this case in May 2010.
13
Docket No. 87, May 11, 2010 Minute Order.
14
See Docket No. 63, Defs.’ Notice of Pendency of Other
This Court therefore issued a
One week later, on May 18, 2010, the Northern District of
15
Illinois issued a decision denying Sears’s request for a permanent
16
injunction.
17
necessary because Sears could achieve the same result by asserting
18
a defense of collateral estoppel in this action based on the
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Seventh Circuit’s decisions in Thorogood I and Thorogood II.
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Sears appealed the district court’s order to the Seventh Circuit.
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The court reasoned that injunctive relief was not
While that appeal was pending, Defendants in this case case
moved to strike the class action allegations in Murray’s
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1
The All Writs Act provides that the “all courts established by
Act of Congress may issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a). The Supreme Court has
“repeatedly recognized the power of a federal court to issue such
commands under the All Writs Act as may be necessary or appropriate to
effectuate and prevent the frustration of orders it has previously
issued in its exercise of jurisdiction otherwise obtained.” United
States v. New York Tel. Co., 434 U.S. 159, 172 (1977).
4
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complaint.
2
Illinois’s order -- the same order that Sears had just appealed --
3
Defendants argued that Murray was collaterally estopped from
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bringing his class claims in light of the Thorogood decisions.
5
July 2010, this Court granted the motion to strike.
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found that, “although rejection of a multi-state class does not
7
ipso facto foreclose all single-state class actions, the analysis
8
in the Seventh Circuit’s decision and the similarities between the
9
factual allegations and legal theories in that case and this case,
Heeding the guidance of the Northern District of
United States District Court
For the Northern District of California
10
require the application of collateral estoppel.”
11
In
The Court
Order Granting Motion to Strike, at 11.2
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Docket No. 104,
Murray filed an amended class action complaint the following
13
week.
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allegations that had not been asserted by Thorogood.
15
particular, he alleged that Sears and Electrolux had specifically
16
marketed certain Kenmore-brand dryer models, including the model
17
he purchased, as having an “all stainless steel drum” and
18
expressly represented that this feature made the dryers more
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durable and less susceptible to corrosion and chipping than other
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models.
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52.
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on the grounds that Murray was collaterally estopped from
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representing a class.
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Murray’s complaint, this Court denied the motion to strike and
In his amended complaint, Murray added new factual
In
See Docket No. 106, First Amended Complaint (1AC) ¶¶ 50-
Defendants once again moved to strike the class allegations
However, based on the new allegations in
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2
The order noted, “Because the Court has concluded that Plaintiff
cannot proceed on his class allegations, the Court need not wait for a
decision by the Seventh Circuit” on Sears’s appeal of the Northern
District of Illinois’ order denying Sears’s motion for a permanent
injunction. Order Granting Motion to Strike at 11-12.
5
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allowed Murray to proceed on his class claims.
2
Order Denying Motion to Strike, at 7-8 (“Because the allegations
3
in the instant case are sufficiently different from those in
4
Thorogood, the class certification issues necessarily decided in
5
the previous proceeding are not identical to those presently
6
before the Court.
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asserting his claims on a class-wide basis.”).
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Docket No. 120,
Plaintiff is not collaterally estopped from
In November 2010, two months after this Court denied
Defendants’ second motion to strike, the Seventh Circuit reversed
United States District Court
For the Northern District of California
10
the Northern District of Illinois’ order denying Sears’s motion
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for a permanent injunction.
12
624 F.3d 842 (7th Cir. 2010) (Thorogood III).
13
court expressed disagreement with this Court’s order finding that
14
Murray had sufficiently amended his class action allegations to
15
avoid the bar of collateral estoppel.
16
“Murray’s suit is barred by collateral estoppel” because the minor
17
differences between his class claims and Thorogood’s do not
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suggest that he will be better able to meet Rule 23(a)’s
19
commonality requirement).
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be enjoined from proceeding on his class action claims and,
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further, that all other putative “members of Thorogood’s class
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must be enjoined as well as the lawyers so that additional Murrays
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don’t start popping up, class action complaint in hand, all over
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the country, represented by other members of the class action
25
bar.”
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District of Illinois to enter the injunction and denied
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Thorogood’s requests for rehearing and rehearing en banc in
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December 2010, 627 F.3d 289 (7th Cir. 2010).
Id. at 853.
Thorogood v. Sears, Roebuck & Co.,
In its opinion, the
Id. at 852 (concluding that
The court thus held that Murray should
The Seventh Circuit directed the Northern
6
1
The following month, January 2011, this Court stayed all
2
discovery proceedings in light of Thorogood III and scheduled a
3
case management conference to address how this case should proceed
4
once the Northern District of Illinois issued its injunction
5
barring Murray from pursuing his class claims against Defendants.
6
Before that case management conference was held, however,
7
Thorogood filed a petition for a writ of certiorari, which the
8
Supreme Court granted in June 2011.
9
In its three-sentence order, the Supreme Court vacated the Seventh
131 S. Ct. 3060, 361 (2011).
United States District Court
For the Northern District of California
10
Circuit’s opinion in Thorogood III and remanded the case for
11
further consideration in light of its recent decision in Smith v.
12
Bayer Corp., 131 S. Ct. 2368 (2011), which addressed the
13
preclusive effect of one court’s class certification decision on
14
subsequent motions for class certification in other courts.3
15
In May 2012, the Seventh Circuit instructed the Northern
16
District of Illinois to vacate its injunction barring Murray from
17
pursuing his class claims in this action.4
18
Roebuck & Co., 678 F.3d 546, 552 (7th Cir. 2012) (Thorogood IV).
19
One month later, in June 2012, this Court lifted the stay of
20
discovery in Murray’s case and set a briefing schedule for his
21
class certification motion.
Thorogood v. Sears,
Murray now moves for class
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3
Both Murray and Thorogood participated in Smith as amici curiae
at the briefing stage. This order discusses Smith in further depth
below.
4 The Northern District of Illinois had entered the injunction in
April 2011, before the Supreme Court had granted Thorogood’s petition
for certiorari and vacated the Seventh Circuit’s opinion in Thorogood
III. See Docket No. 139-2, N.D. Ill. Injunction in Thorogood.
7
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certification under Federal Rules of Civil Procedure 23(b)(2) and
2
23(b)(3).5
3
LEGAL STANDARD
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Plaintiffs seeking to represent a class must satisfy the
5
threshold requirements of Rule 23(a) as well as the requirements
6
for certification under one of the subsections of Rule 23(b).
7
Rule 23(a) provides that a case is appropriate for certification
8
as a class action if
9
(1)
the class is so numerous that joinder of all members is
impracticable;
(2)
there are questions of law or fact common to the class;
(3)
the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and
(4)
the representative parties will fairly and adequately
protect the interests of the class.
United States District Court
For the Northern District of California
10
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14
Fed. R. Civ. P. 23(a).
15
Plaintiffs must also establish that one of the subsections of
16
Rule 23(b) is met.
In the instant case, Plaintiffs seek
17
certification under subsections (b)(2) and (b)(3).
18
Rule 23(b)(2) applies where “the party opposing the class has
19
acted or refused to act on grounds generally applicable to the
20
class, thereby making appropriate final injunctive relief or
21
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23
24
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26
27
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5
Although Murray asserts that he is also moving for class
certification “pursuant to Cal. Code of Civil Procedure § 1781,” Docket
No. 167, Class Cert. Mot. ii, that provision is inapplicable for two
reasons. First, “federal procedural rules govern a case that has been
removed to federal court.” Smith, 131 S. Ct. at 2374 n.2 (explaining
that federal courts apply Federal Rule of Civil Procedure 23 to class
certification decisions rather than analogous state rules of procedure).
Second, section 1781 of the California Code of Civil Procedure was
repealed in 2000. Murray most likely intended to cite section 1781 of
the California Civil Code, which governs consumer class actions brought
in state court.
8
1
corresponding declaratory relief with respect to the class as a
2
whole.”
3
Fed. R. Civ. Proc. 23(b)(2).
Rule 23(b)(3) permits certification where common questions of
4
law and fact “predominate over any questions affecting only
5
individual members” and class resolution is “superior to other
6
available methods for the fair and efficient adjudication of the
7
controversy.”
8
intended “to cover cases ‘in which a class action would achieve
9
economies of time, effort, and expense . . . without sacrificing
Fed. R. Civ. P. 23(b)(3).
These requirements are
United States District Court
For the Northern District of California
10
procedural fairness or bringing about other undesirable results.’”
11
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997) (quoting
12
Fed. R. Civ. P. 23(b)(3) Adv. Comm. Notes to 1966 Amendment).
13
Regardless of what type of class the plaintiff seeks to
14
certify, it must demonstrate that each element of Rule 23 is
15
satisfied; a district court may certify a class only if it
16
determines that the plaintiff has borne this burden.
17
Co. of Sw. v. Falcon, 457 U.S. 147, 158-61 (1982); Doninger v.
18
Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308 (9th Cir. 1977).
19
general, the court must take the substantive allegations of the
20
complaint as true.
21
Cir. 1975).
22
analysis,’” which may require it “‘to probe behind the pleadings
23
before coming to rest on the certification question.’”
24
Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (quoting
25
Falcon, 457 U.S. at 160-61).
26
will entail some overlap with the merits of the plaintiff’s
27
underlying claim.
28
2551.
Gen. Tel.
In
Blackie v. Barrack, 524 F.2d 891, 901 (9th
However, the court must conduct a “‘rigorous
Wal-Mart
“Frequently that ‘rigorous analysis’
That cannot be helped.”
Dukes, 131 S. Ct. at
To satisfy itself that class certification is proper, the
9
1
court may consider material beyond the pleadings and require
2
supplemental evidentiary submissions by the parties.
3
F.2d at 901 n.17.
4
context of a motion for class certification, district courts must
5
consider ‘the persuasiveness of the evidence presented.’”
6
v. Verizon Cal., Inc., 2012 WL 10381, at *2 (C.D. Cal.) (quoting
7
Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.
8
2011)).
9
whether a class should be certified.
Blackie, 524
“When resolving such factual disputes in the
Aburto
Ultimately, it is in the district court’s discretion
Molski v. Gleich, 318 F.3d
United States District Court
For the Northern District of California
10
937, 946 (9th Cir. 2003); Burkhalter Travel Agency v. MacFarms
11
Int’l, Inc., 141 F.R.D. 144, 152 (N.D. Cal. 1991).
12
13
14
DISCUSSION
I.
Principles of Comity
Defendants urge this Court to show comity toward the Seventh
15
Circuit’s denial of class certification in Thorogood I, 547 F.3d
16
at 748.
17
Smith, a federal court must defer to any prior federal class
18
certification decision addressing the same claims and issues.
19
support this claim, they cite language from Smith encouraging
20
federal courts “to apply principles of comity to each other’s
21
class certification decisions when addressing a common dispute.”
22
131 S. Ct. at 2382.
23
They argue that, under the Supreme Court’s decision in
To
While Smith requires federal courts to show respect for prior
24
class certification rulings, it does not require that they
25
mechanically adopt those prior rulings whenever they are presented
26
with a motion to certify a class in a copycat lawsuit.
27
especially true where, as here, a class was never certified in the
28
earlier action and the plaintiff in the subsequent lawsuit never
10
This is
1
joined the earlier action.
2
proposed class action nor a rejected class action may bind
3
nonparties.”
4
rule could lead to abuses by “class counsel [who] repeatedly try
5
to certify the same class” with different plaintiffs in different
6
jurisdictions but it concluded that this concern did not justify
7
“departing from the usual rules of preclusion.”
8
(“[O]ur legal system generally relies on principles of stare
9
decisis and comity among courts to mitigate the sometimes
Id. at 2380.
As Smith explained, “Neither a
The Smith Court acknowledged that this
Id. at 2381-82
United States District Court
For the Northern District of California
10
substantial costs of similar litigation brought by different
11
plaintiffs.
12
lies in binding nonparties to a judgment.”).
13
We have not thought that the right approach . . .
The Seventh Circuit has relied on this aspect of Smith in
14
rejecting the same argument that Defendants advance here.
15
v. Dart, 683 F.3d 373, 377 (7th Cir. 2012) (“[T]he defendants’
16
argument that Smith v. Bayer Corp. adopted a rule of comity in
17
class action suits that precludes granting class certification in
18
a copycat class action must be rejected.” (emphasis in original)).
19
Although the court recognized that the prospect of duplicative
20
litigation by multiple class action plaintiffs raises legitimate
21
policy concerns,6 it nevertheless held that federal courts are not
22
bound to adopt other courts’ prior class certification rulings.
23
The court explained,
Smentek
24
25
6
26
27
28
In describing this problem, the Smentek court specifically
singled out Murray’s counsel in the present case. See 683 F.3d at 37677 (“Without a rule of preclusion, class action lawyers can do what the
lawyer here (and the lawyer in Thorogood) did: keep bringing identical
class actions with new class representatives until they draw a judge who
is willing to certify the class.”).
11
1
2
3
4
5
6
7
How are courts or legislatures to prevent
class action litigation from metastasizing?
The rule urged by the defendants in this case
that the denial of class certification bars
the certification of the same or a similar
class in a suit by a member of the same class
as the previous suit might do the trick, but
it would contradict the holding of Smith v.
Bayer Corp., which is that a class member who
did not become a party to the previous
parallel class action is not precluded from
seeking class certification in his class
action.
8
Id. (citations omitted).
9
concluded, “We are left with the weak notion of ‘comity’ as
Based on this reasoning, the court
United States District Court
For the Northern District of California
10
requiring a court to pay respectful attention to the decision of
11
another judge in a materially identical case, but no more than
12
that even if it is a judge of the same court or a judge of a
13
different court within the same judiciary.”
14
in this district subsequently cited Smentek in concluding that
15
“consideration of previous decisions on an identical class action
16
is not mandatory but discretionary.”
17
4067594, at *1 (N.D. Cal.).
18
itself, make clear that Thorogood I does not preclude Murray from
19
moving for class certification in this case.
20
Id. at 377.
A court
Williams v. Foods, 2013 WL
These decisions, along with Smith
Nevertheless, even if Thorogood I is not dispositive here, it
21
remains persuasive.
22
evidence are nearly identical to the allegations and evidence that
23
Thorogood submitted in his failed bid for class certification and,
24
as explained further below, they contain many of the same
25
deficiencies.
26
class certification here, as Defendants contend, it provides
27
strong guidance in deciding Murray’s motion and must be afforded
28
“respectful attention.”
Murray’s factual allegations and supporting
Thus, while Thorogood I does not compel a denial of
Smentek, 683 F.3d at 377.
12
1
2
II.
Rule 23(a)
Murray moves to certify the following class:
3
all persons in the state of California who
purchased from Sears, through a Sears retail
store or on the Sears website at www.sears.com
within the applicable statute of limitations
period for each claim, a Kenmore or Frigidaire
laundry dryer classified with a stainless
steel drum and the drum front was not made of
stainless steel that was manufactured by
Electrolux.
4
5
6
7
8
Class Cert. Mot. 11.
Murray asserts that there are at least forty
9
Kenmore-brand dryer models and at least ten Frigidaire-brand dryer
10
United States District Court
For the Northern District of California
models which are sold by Sears, manufactured by Electrolux, and
11
contain a stainless steel drum with a non-stainless steel drum
12
front.
Docket No. 167-2, Boling Decl. ¶ 13.
13
A.
Numerosity
14
The parties have stipulated that thousands of California
15
consumers purchased the Kenmore-brand dryer models identified in
16
Murray’s proposed class definition.
See Docket No. 198-1, Oliss
17
Decl., Ex. A, Stipulated Facts ¶¶ 3-4.
Murray has not
18
specifically identified how many of these consumers purchased
19
dryers “within the applicable limitations period” or how many
20
purchased Frigidaire-brand dryers.
Nonetheless, because
21
Defendants do not deny that these numbers would satisfy Rule
22
23(a)’s numerosity requirement, the Court assumes that this
23
requirement has been met.
24
B.
Commonality
25
26
27
28
Rule 23 contains two related commonality provisions.
Rule
23(a)(2) requires that there be “questions of law or fact common
to the class.”
Rule 23(b)(3), in turn, requires that these common
13
questions predominate over individual ones.
2
addresses only whether Murray has satisfied Rule 23(a)(2)’s
3
requirements, which are “less rigorous than the companion
4
requirements of Rule 23(b)(3).”
5
F.3d 1011, 1019 (9th Cir. 1998) (“Rule 23(a)(2) has been construed
6
permissively.”).
7
23(a)(2) may be satisfied even if fewer than all legal and factual
8
questions are common to the class.
9
Associates, LLC, 707 F.3d 1036, 1041 (9th Cir. 2012) (“‘All
10
United States District Court
For the Northern District of California
1
questions of fact and law need not be common to satisfy the
11
[commonality requirement].’” (citations omitted; alterations in
12
original)), cert. denied, 133 S. Ct. 2361 (2013).
This section
Hanlon v. Chrysler Corp., 150
The Ninth Circuit has made clear that Rule
Meyer v. Portfolio Recovery
13
As noted above, the Seventh Circuit held that class
14
certification was inappropriate in Thorogood I because “there
15
[were] no common issues of law or fact” in that case.
16
747.
17
Thorogood failed to present evidence that “Sears advertised the
18
dryers as eliminating a problem of rust stains by having a
19
stainless steel drum.”
20
advertise a host of features that might matter to consumers, such
21
as price, size, electrical usage, appearance, speed, and controls,
22
but not, as far as anyone in this litigation has suggested except
23
the plaintiff, avoidance of clothing stains due to rust.”).
24
Without this evidence, the court concluded, “Each class member who
25
wants to pursue relief against Sears [would] have to testify to
26
what he understands to be the meaning of a label or advertisement
27
that identifies a clothes dryer as containing a stainless steel
28
drum.”
547 F.3d at
The court reasoned that commonality was lacking because
Id.
Id. (“Advertisements for clothes dryers
Although the court noted other problems with the
14
1
proposed class, it explained that the “deal breaker [was] the
2
absence of any reason to believe that there is a single
3
understanding of the significance of labeling or advertising
4
clothes dryers as containing a ‘stainless steel drum.’”
5
Id.
Murray’s motion for class certification suffers from the same
6
fatal defect.
7
evidence that Defendants represented on a class-wide basis that
8
the dryer’s drum front was made of stainless steel (rather than
9
mild steel) and that this feature would prevent its user’s clothes
Like Thorogood, he has failed to present any
United States District Court
For the Northern District of California
10
from developing rust stains or tears.
11
that some of Sears’s sales managers acknowledged during their
12
depositions that the company promoted the stainless steel drums in
13
advertisements, none of these managers testified that Sears
14
marketed the drums as preventing rust stains or tearing.
15
product manager testified that he did not know why the company
16
chose to promote the stainless steel drum.
17
224:7 (“I don’t really know [the benefits of a stainless steel
18
drum].
19
perception and my understanding is, the more you use, the smoother
20
it gets.”).7
I’m not an engineer.
Although Murray points out
One
Pigatto Depo. 223:22-
I guess at this point, the
Another testified that she believed the stainless
21
22
23
24
25
26
27
28
7
Rather than citing to the relevant page-and-line numbers of the
deposition transcripts he submitted as evidence, Murray instead cites to
a series of “Deposition Statements” which purport to summarize the
deposition testimony on which he wishes to rely. See Docket Nos. 17071. Defendants object to these deposition summaries -- which total over
one hundred pages in length -- because Murray prepared them himself.
This objection is sustained. “The Court bases its decisions on what the
evidence shows, not on how a party has characterized the evidence.”
eForce Global, Inc. v. Bank of America, 2010 WL 2573976, at *2 (N.D.
Cal.); see also Harris v. City of Seattle, 152 Fed. Appx. 565, 568 (9th
Cir. 2005) (unpublished opinion) (noting that the plaintiff’s
“characterization of [a witness]’s deposition testimony does not
represent probative evidence”). The Court relies in this order only on
15
1
steel drum was marketed as an aesthetic feature.
2
Depo. 32:9-:10.
3
Sears’s marketing team when asked about the company’s advertising
4
practices.
5
supports Murray’s claim that California consumers, as a class,
6
were likely to be confused by Sears’s marketing claims.
Christensen
A third Sears employee simply referred Murray to
Wood Depo. 57:4-:13, 60:6-:17.
None of this testimony
7
While some of Sears’s promotional materials state that the
8
Kenmore-brand dryers feature an “exclusive, all stainless-steel
9
drum that provides lasting durability,” King Depo. 133:11-:13,
United States District Court
For the Northern District of California
10
this hardly qualifies as a material misrepresentation.
11
Seventh Circuit explained when it examined this same evidence in
12
Thorogood III,
13
14
15
16
17
18
As the
It’s true that stainless steel does not rust
or chip, and therefore a dryer that is made,
even if only in part (the drum), of stainless
steel should indeed provide “lasting
durability.” But the claim is not falsified
if a small part of the drum is made of “mild”
steel coated with ceramic. And a dryer’s
durability has nothing to do with rust stains
in clothing, Thorogood’s contention and
Murray’s as well.
19
624 F.3d at 851; see also Thorogood IV, 678 F.3d at 549 (“Some of
20
Sears’ ads do point out that stainless steel doesn’t rust, but no
21
one likes rust, whether or not the rust rubs off on clothes.”).
22
The only evidence Murray has presented to suggest that Sears
23
specifically represented that the stainless steel drum would
24
protect clothes from rust stains is his own interaction with a
25
salesperson at Sears’s San Bruno store.
26
declaration that the salesperson “represented that the Product
Murray stated in his
27
28
the actual deposition transcripts attached to Murray’s deposition
summaries, even though Murray himself neglected to cite to them.
16
1
consisted of a stainless steel drum, which affected the
2
performance, quality, benefit and value of the dryer, in that the
3
stainless steel drum could not chip, rust or stain clothing placed
4
inside it for drying.”
5
But Murray’s account of his personal experience at a single Sears
6
store does not suggest that Sears made this representation about
7
the Kenmore-brand dryers on a class-wide basis.
8
suggest that Sears ever made such a representation about the
9
Frigidaire-brand dryers nor that Electrolux ever made similar
See Docket No. 167-4, Murray Decl. ¶ 4.
Nor does it
United States District Court
For the Northern District of California
10
representations about either brand of dryers.
11
isolated (and uncorroborated) incident of allegedly deceptive
12
marketing suggests that Murray’s claims, much like Thorogood’s,
13
are highly “idiosyncratic” and, thus, not amenable to class-wide
14
proof.
15
If anything, this
Thorogood I, 547 F.3d at 747.
Indeed, Murray’s failure to identify any other class member
16
whose clothes were stained by rust only reaffirms that his claimed
17
injury here is unique.
18
that other California consumers’ clothes were ever damaged by
19
Kenmore or Frigidaire dryers.
20
his deposition whether he knew of “any other person who has had
21
the same failure that [he] had in a Kenmore stainless steel drum,”
22
he responded, “Other than Mr. Thorogood, no.”
23
173:18-:21.
24
offered by a Sears service technician and a customer service
25
specialist who, collectively, could only recall receiving two
26
complaints -- one of which came from Thorogood -- about rust
27
developing on the front of a stainless steel dryer drum.
28
Docket No. 198, Hess Depo. 16:5-:22; Daley Depo. 20:14-:18.
He has not offered any evidence to suggest
In fact, when he was asked during
Murray Depo.
This response is consistent with the testimony
17
See
1
Despite this lack of evidence of any common misrepresentation
2
or injury, Murray contends that his claims raise common questions
3
of law.
4
whether Defendants’ alleged misrepresentations regarding the
5
dryer’s drum were material and whether they were likely to mislead
6
a reasonable consumer.
7
Co., 2013 WL 5201190, at *19 (N.D. Cal.) (“The standard for
8
establishing a violation of California’s UCL, FAL, and CLRA is the
9
‘reasonable consumer’ test, which requires a plaintiff to ‘show
He argues that common questions must be resolved as to
See generally Gustavson v. Wrigley Sales
United States District Court
For the Northern District of California
10
that members of the public are likely to be deceived’ by the
11
business practice or advertising at issue.” (citations omitted)).
12
These questions, however, would only be relevant to all putative
13
class members if Murray had adduced some evidence to suggest that
14
Defendants had actually made misrepresentations on a class-wide
15
basis.
16
that Sears engaged in an isolated instance of deception in
17
California when Murray went to purchase his own dryer in 2001.
18
This evidence is not sufficient to give rise to any relevant
19
questions of law that are common to all potential class members.
20
Accordingly, because he has not identified any common questions of
21
fact or law that pertain to every class member, Murray has failed
22
to meet the commonality prerequisite.
As explained above, Murray’s evidence suggests, at most,
23
C.
24
Rule 23(a)(3) requires that the “claims or defenses of the
Typicality
25
representative parties [be] typical of the claims or defenses of
26
the class.”
27
class and possess the same interest and suffer the same injury as
28
the class members.”
Thus, every “class representative must be part of the
Falcon, 457 U.S. at 156 (quoting E. Tex.
18
1
Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977))
2
(internal quotation marks omitted).
3
satisfied if the named plaintiffs have suffered the same or
4
similar injuries as the unnamed class members, the action is based
5
on conduct which is not unique to the named plaintiffs, and other
6
class members were injured by the same course of conduct.
7
v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992).
8
Typicality is not met, however, “where a putative class
9
representative is subject to unique defenses which threaten to
This requirement is usually
Hanon
United States District Court
For the Northern District of California
10
become the focus of the litigation.”
11
Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
12
903 F.2d 176, 180 (2d Cir. 1990).
13
Id. (quoting Gary Plastic
Murray has failed to satisfy the typicality requirement here
14
for the same reasons he has failed to satisfy the commonality
15
requirement: specifically, he has not presented evidence of any
16
class-wide misrepresentations or class-wide injury.
17
above, the only evidence here that Defendants ever specifically
18
represented that their dryers’ stainless steel drums protect
19
clothes from rust stains comes from Murray’s own isolated
20
experience at the San Bruno Sears store.
21
any evidence to suggest that either Defendant ever made the same
22
representations to other California consumers.
23
presented any evidence to suggest that other California consumers
24
ever had the same problems with the Kenmore-brand dryers that he
25
had.
26
that of the proposed class.
27
28
As explained
Murray has not presented
Nor has he
On this record, Murray’s experience is not representative of
Murray is atypical in other ways, as well.
For instance, he
stated repeatedly during his deposition that when he first
19
1
inspected the interior of his dryer in 2007, he noticed that the
2
entire drum was loose.
3
154:23-:25 (“I could feel that the drum was loose, that it was
4
actually moving and not firmly in contact with whatever was
5
supposed to hold it in.”).
6
drum was most likely what caused his clothes to become exposed to
7
the rust in the first place because the rust had only developed on
8
the exterior portion of the drum front -- a part of the dryer that
9
would not normally come into contact with any clothes.
Murray Depo. 143:6-:10, 144:24-145:1,
In fact, he testified that the loose
Id.
United States District Court
For the Northern District of California
10
142:22-:24, 143:15-:16, 154:17-155:5.
11
other problems with Murray’s dryer may have contributed to the
12
rust stains he experienced -- leaves him vulnerable to fact-based
13
defenses that could not be raised against other class members.
14
Hanon, 976 F.2d at 508 (recognizing that typicality is not met
15
where a plaintiff’s “unique background and factual situation
16
require him to prepare to meet defenses that are not typical of
17
the defenses which may be raised against other members of the
18
proposed class”).
19
evidence shows that Electrolux changed the way that it installed
20
its dryer drums in 2002, shortly after Murray purchased his dryer.
21
Docket No. 197-1, King Decl. ¶¶ 12-15 (describing how “beginning
22
around 2002, Electrolux redesigned the suspension system of the
23
Kenmore dryers” by changing the way that the drum was attached to
24
the rest of the machine).
25
This admission -- that
This is especially true here, where the
In addition to these unique fact-based defenses, Murray is
26
also subject to unique legal defenses based on the statute of
27
limitations for each of the claims he asserts.
28
limitations periods here are four years for Murray’s contract
20
The relevant
1
claim, Cal. Code Civ. Proc. § 337; four years for his UCL claim,
2
Cal. Bus. & Prof. Code § 17208; three years for his CLRA claim,
3
Cal. Civ. Code § 1783; and three years for his unjust enrichment
4
claim, Cal. Code Civ. Proc. § 338(d).
5
purchased his dryer in September 2001, all of his claims would
6
have expired in September 2004 or September 2005, absent equitable
7
tolling or some other rule of delayed accrual.
8
that his claims -- which he did not file until November 2009 --
9
are not time-barred because they are subject to equitable tolling
Thus, because Murray
Murray contends
United States District Court
For the Northern District of California
10
and the delayed-discovery rule.
11
two highly dubious premises.
12
have discovered that his dryer was damaging his clothes until
13
after the limitations period elapsed.
14
that he began to notice rust stains on his clothes within three
15
years of purchasing the dryer, this claim will be difficult to
16
establish.
17
claims are sufficiently similar to Thorogood’s claims to justify
18
tolling the limitations period during the pendency of Thorogood’s
19
lawsuit.
20
Murray’s efforts to distinguish his case from Thorogood’s
21
throughout this litigation (including in the instant motion).
22
any case, Defendants need not establish conclusively at this stage
23
that Murray’s delayed-discovery and equitable tolling arguments
24
are entirely without merit.
25
enough for them to establish that their limitations defense
26
against Murray could “threaten to become the focus of the
27
litigation.”
28
his dryer more than eight years before he filed this action --
These arguments, however, rest on
The first is that Murray could not
Given Murray’s admission
The second questionable premise is that Murray’s
This, too, will be difficult to establish in light of
In
For the purposes of Rule 23(a), it is
Hanon, 976 F.2d at 508.
21
Because Murray purchased
1
twice the length of the longest applicable limitations period
2
here -- and his delayed-discovery and equitable tolling arguments
3
appear particularly weak, Defendants have met this burden.
4
Finally, Murray has not presented sufficient evidence to
5
establish that his experience purchasing and operating a Kenmore
6
dryer accurately represents the experiences of consumers who
7
purchased and purchased Frigidaire dryers.
8
district have generally held that plaintiffs lack standing to
9
bring CLRA claims based on the marketing of products that they
Courts in this
United States District Court
For the Northern District of California
10
never purchased.
11
2847575, at *6 (N.D. Cal.) (“A plaintiff has standing to assert
12
injury based on a defective product or false advertising only if
13
the plaintiff experienced injury stemming from the purchase of
14
that product.”); Carrea v. Dreyer’s Grand Ice Cream, Inc., 2011 WL
15
159380, at *3 (N.D. Cal.) (dismissing plaintiff’s CLRA claims
16
related to products that he never purchased because he never
17
“suffered any injury or lost money or property with respect to
18
those products”).
19
in bringing CLRA claims based on products that he or she never
20
purchased.
21
2009) (finding that a plaintiff failed to satisfy the typicality
22
prerequisite “because of her non-consumer status under the CLRA
23
and her atypicality with respect to possible unique defenses”).
24
25
See, e.g., Granfield v. NVIDIA Corp., 2012 WL
A plaintiff therefore may not represent a class
Mazur v. eBay Inc., 257 F.R.D. 563, 569 (N.D. Cal.
For all of these reasons, Murray has not satisfied Rule
23(a)’s typicality requirement.
26
D.
27
Rule 23(a)(4) establishes as a prerequisite for class
28
Adequacy
certification that “the representative parties will fairly and
22
1
adequately protect the interests of the class.”
2
23(a)(4).
3
class counsel.
4
Fed. R. Civ. P.
Rule 23(g)(2) imposes a similar adequacy requirement on
Murray is not an adequate class representative because, as
5
previously explained, his claims are not typical of those he seeks
6
to represent.
7
(C.D. Cal.) (recognizing “considerable overlap between the
8
typical[it]y prerequisite of Rule 23(a)(3) and the adequate
9
representation requirement of Rule 23(a)(4)”).
A&J Deutscher Family Fund v. Bullard, 1986 WL 14903
Because Murray has
United States District Court
For the Northern District of California
10
not satisfied this requirement, there is no need to address the
11
adequacy of class counsel.
12
III. Rule 23(b)
13
As explained above, Murray’s motion for class certification
14
must be denied because he has failed to satisfy the requirements
15
of Rule 23(a).
16
failed to satisfy the requirements of Rule 23(b).
This section briefly explains why he has also
17
A.
18
A court may grant certification under Rule 23(b)(2) “if class
Rule 23(b)(2)
19
members complain of a pattern or practice that is generally
20
applicable to the class as a whole.
21
have not been injured by the challenged practice, a class may
22
nevertheless be appropriate.”
23
1047 (9th Cir. 1998); see also 7A Wright, Miller & Kane, Federal
24
Practice & Procedure § 1775 (2d ed. 1986) (“All the class members
25
need not be aggrieved by or desire to challenge the defendant’s
26
conduct in order for some of them to seek relief under Rule
27
23(b)(2).”).
Even if some class members
Walters v. Reno, 145 F.3d 1032,
28
23
1
Murray has not clearly defined the scope of the injunctive
relief he seeks nor has he explained why he is seeking injunctive
3
relief in the first place.
4
injunction, inter alia, for Sears’ deceptive practice of failing
5
to substantiate the performance features of major appliances as
6
directed by the [Federal Trade Commission]8 so he can rely upon
7
the future disclosures of such features by Sears.”
8
210, Pl.’s Reply 9.
9
to a request for an order directing Sears (but, curiously, not
10
United States District Court
For the Northern District of California
2
Electrolux) to comply generally with existing federal consumer
11
protection regulations -- an obligation that would exist even in
12
the absence of an injunction.
13
injunction would redress Murray’s alleged injuries or those of the
14
class he seeks to represent.
15
Ctr., 1998 WL 34345518, at *11 (D. Neb.) (“Ordering [the
16
defendant] to generally comply with existing law is, if not
17
redundant, broader than necessary to remedy the underlying
18
wrong.”).
19
He asserts that he is seeking “an
Docket No.
This request for relief essentially amounts
It is not clear how this proposed
See Betts v. Univ. of Nebraska Med.
In any event, Murray has not established that the conduct he
20
complains of -- namely, deceptive representations about the
21
ability of stainless steel dryer drums to prevent rust stains on
22
clothing -- is applicable to the class as a whole.
23
above, the only plausibly deceptive representations he has
24
identified are the isolated statements of a single salesperson he
As noted
25
26
8
27
28
Although Murray cites a Federal Trade Commission regulation in a
footnote of his reply brief, he fails to explain how the agency and its
regulations are relevant to his present claims, all of which arise under
state law.
24
1
met more than ten years ago.
2
the need for class-wide injunctive relief.
This is not sufficient to establish
3
B.
4
To qualify for certification under Rule 23(b)(3), “a class
Rule 23(b)(3)
5
must satisfy two conditions in addition to the Rule 23(a)
6
prerequisites: common questions must ‘predominate over any
7
questions affecting only individual members,’ and class resolution
8
must be ‘superior to other available methods for the fair and
9
efficient adjudication of the controversy.’”
United States District Court
For the Northern District of California
10
11
Hanlon, 150 F.3d at
1022 (quoting Fed. R. Civ. P. 23(b)(3)).
As explained above, Murray has not identified any relevant
12
legal or factual questions that are common to all putative class
13
members.
14
superiority requirements of Rule 23(b)(3).
As such, he cannot satisfy the predominance or
15
16
CONCLUSION
For the reasons set forth above, Plaintiff’s motion for class
17
certification (Docket No. 167) is DENIED.
18
Plaintiff’s motion for leave to file supplemental briefing on
19
class certification (Docket No. 225) is DENIED.
20
brief on April 9, 2013, without leave of the Court and in
21
violation of the local rules, responding to Defendants’ statement
22
of recent decision.
23
issue is not necessary, especially as the Court does not rely on
24
Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), in this order.
25
Defendants’ objections to Plaintiff’s reply evidence are OVERRULED
26
as moot.
27
28
See Docket No. 223.
In addition,
Plaintiff filed a
Further briefing on this
A case management conference shall be held at 2:00 p.m. on
Wednesday, March 12, 2014, to set a case management schedule for
25
1
Murray’s individual claims.
2
management statement on or before March 5, 2014.
3
The parties shall file a joint case
IT IS SO ORDERED.
4
5
6
Dated:
2/12/2014
CLAUDIA WILKEN
United States District Judge
7
8
9
United States District Court
For the Northern District of California
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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26
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