Pimental v. Google, Inc. et al

Filing 53

JOINT CASE MANAGEMENT STATEMENT filed by Jessica Franklin, Google, Inc., Nicole Pimental, Slide, Inc.. (Balabanian, Rafey) (Filed on 1/27/2012)

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SEAN P. REIS - SBN 184004
EDELSON MCGUIRE LLP
30021 Tomas Street, Suite 300
Rancho Santa Margarita, California 92688
Telephone: [phone]
[e-mail]

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Attorneys for Plaintiffs

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BOBBIE J. WILSON – SBN 148317
JOSHUA A. REITEN – SBN 238985
PERKINS COIE LLP
Four Embarcadero Center
24th Floor
San Francisco, CA 94111-4024
[phone]
[e-mail]
Attorneys for Defendants
[additional counsel appearing on signature page]

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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NICOLE PIMENTAL and JESSICA
FRANKLIN, individually and on behalf of
all others similarly situated,
Plaintiffs,

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v.
GOOGLE INC., a Delaware corporation,
and SLIDE, INC., a Delaware corporation,
Defendants.

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JOINT CASE MANAGEMENT STATEMENT
11-cv-02585-YGR

Case No. 11-cv-02585-YGR
JOINT CASE MANAGEMENT STATEMENT

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Pursuant to the Court’s Reassignment Order dated January 18, 2012, Plaintiffs Nicole

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Pimental and Jessica Franklin, and Defendants Google Inc. and Slide, Inc. (collectively, the

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“Parties”), hereby jointly submit the following Joint Case Management Statement.

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1.

Date case was filed: This is a consolidated action. Initially, Pimental v

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Google, Inc., Slide, Inc. (11-cv-02585-SBA) was filed on May 27, 2011.

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Franklin v Google, Inc., Slide, Inc. (11-cv-03333-SBA) was then filed on July

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7, 2011. Thereafter, Plaintiffs filed the Consolidated Complaint now before

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this Court on September 14, 2011. (Pimental v Google Inc., Slide, Inc. (11-

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cv-02585-YGR)).

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2.

List of parties:

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a. Plaintiffs: Nicole Pimental, Jessica Franklin

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b. Defendants: Google Inc., Slide, Inc.

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3.

List of current deadlines: As set forth by the Court in its January 20, 2012

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Order (Dkt. 51), and pursuant to Defendants’ renotice of motion (Dkt. 52), the

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current deadlines and relevant dates are as follows:

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CASE MANAGEMENT CONFERENCE: February 9, 2012 at
9:00 a.m.
MOTION TO DISMISS HEARING: March 6, 2012 at 2:00 p.m.

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SETTLEMENT CONFERENCE with a U.S. Magistrate Judge to be
completed no later than November 30, 2012.

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NON-EXPERT DISCOVERY CUTOFF: June 22, 2012

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DISCLOSURE OF EXPERTS (retained/non-retained): opening:
June 15, 2012 rebuttal: June 29, 2012

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EXPERT DISCOVERY CUTOFF: August 17, 2012
DISPOSITIVE MOTIONS TO BE HEARD BY: October 30, 2012
PRETRIAL STATEMENTS: January 18, 2013
PRETRIAL CONFERENCE: February 1, 2013
TRIAL DATE: February 19, 2013 (Jury Trial)

JOINT CASE MANAGEMENT STATEMENT
11-cv-02585-YGR

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TRIAL LENGTH: 3 to 5 days

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Additionally, the minutes of the October 12, 2011 case management

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conference (Dkt. 32) reflect the following deadlines:

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LAST DATE TO AMEND PLEADINGS OR ADD PARTIES:

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February 12, 2012

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PLAINTIFFS’ CLASS CERTIFICATION MOTION PAPERS

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DUE: May 8, 2012

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DEFENDANTS’ CLASS CERTIFICATION OPPOSITION

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PAPERS DUE: June 5, 2012

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PLAINTIFFS’ CLASS CERTIFICATION REPLY PAPERS

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DUE: June 19, 20121
4.

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List of all pending motions:
a. Defendants’ Motion to Dismiss (Dkt. 29) – briefing is complete; the

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original hearing was vacated per the Court’s Reassignment Order; the

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hearing has been renoticed for March 6, 2012.
b. Defendants’ Administrative Motion to Stay Discovery (Dkt. 34).

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5.

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Description of events underlying claim: Plaintiffs allege that Defendants

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formerly operated a service known as “Disco,” which allowed consumers to

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engage in “group text messaging” (i.e., allowing one text message to be sent

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to numerous people simultaneously, and allowing other group members to

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interact with the entire group through a single message). Plaintiffs allege that

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Defendants send their own text messages, promoting their service and mobile

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application, to Disco group members without receiving consent to do so, in

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The Parties identify these additional deadlines since they were not expressly vacated in the
Reassignment Order or reset in the January 20, 2012 Clerk’s Notice regarding trial-related
dates.
JOINT CASE MANAGEMENT STATEMENT
11-cv-02585-YGR

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direct violation of the Telephone Consumer Protection Act (47 U.S.C. § 227

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et seq ). Plaintiffs specifically allege that they were added to Disco groups

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without permission and thereafter received numerous unwanted text messages,

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including promotional text messages from Defendants. Additionally,

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Plaintiffs allege that after they attempted to be removed from the Disco group,

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they continued to receive unwanted text messages.

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Defendants dispute Plaintiffs’ allegations and deny liability on Plaintiffs’

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claim.

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6.

Summary of all claims: Plaintiffs’ Consolidated Complaint alleges a single

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cause of action for violation of the Telephone Consumer Protection Act (47

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U.S.C. § 227 et seq ).

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7.

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List and description of relief sought: Plaintiffs seeks the following relief:
(a)

An order certifying the action as a Class Action and designating
Plaintiffs and their counsel as representatives of the Class;

(b)

Injunctive relief for the Class on Count I;

(c)

Actual damages, or statutory damages in the amount of $500 per
violation under 47 U.S.C. § 227(b)(3)(B), whichever is greater, with a
possible trebling under § 227(b)(3)(C);

(d)

An award of reasonable attorneys’ fees and costs for Plaintiffs and
their counsel;

(e)

Such other and further relief as the Court may deem just and proper.

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8.

Status of discovery:

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Joint Statement: The Parties conducted a Rule 26(f) meet and confer in

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August 2011, and again on October 5, 2011. Defendants filed an

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Administrative Motion to Stay Discovery on October 26, 2011 (Dkt. 34), on

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the grounds that discovery in this case should be temporarily stayed pending

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resolution of Defendants’ motion to dismiss because that motion may dispose

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of this action in its entirety. Plaintiffs served discovery on Defendant Google

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JOINT CASE MANAGEMENT STATEMENT
11-cv-02585-YGR

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on October 27, 2011 in the form of interrogatories and request to produce

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documents. Google served its responses to that discovery on December 23,

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2011. Plaintiffs requested, and the Parties held, a meet and confer regarding

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Defendant’s discovery responses on December 29, 2011. The Parties have not

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yet reached a resolution on several of Defendant’s objections to Plaintiffs’

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requests and Defendant has offered to continue the meet and confer process.

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Plaintiffs’ Position Regarding Google’s Discovery Responses: After

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providing Defendant with several extensions of time to respond, Defendants

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served Plaintiffs with discovery responses consisting of only objections and

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no responsive documents. Plaintiffs are of the position that they are not

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obligated to meet and confer any further given that they have already done so

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and Defendant’s main objection for not responding to the discovery is that

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they have a motion to stay discovery on file. However, Plaintiffs note that no

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discovery stay is currently in place, there has been no ruling regarding

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Defendant’s Administrative Motion to Stay Discovery, and unless and until a

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stay is entered, Rule 26 requires that Defendant respond to Plaintiffs’

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outstanding discovery requests. Plaintiffs have even agreed to narrow certain

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requests, but to date, Defendant has not supplemented their responses to

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discovery. Plaintiffs are willing to engage in one final meet and confer to

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attempt to get beyond this discovery impasse prior to moving to compel. But,

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Defendant’s continued “offers” to meet and confer are nothing more than a

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delay tactic. For example, following their meet and confer conference on

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December 29, 2011, during which, as explained above, Plaintiffs agreed to

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narrow several discovery requests, Defendant, though memorializing the

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narrowing of the discovery, has still failed to supplement its responses,

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JOINT CASE MANAGEMENT STATEMENT
11-cv-02585-YGR

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claiming that further follow up from Plaintiffs is needed. There should be no

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need for additional meet and confers since Plaintiffs already agreed to narrow

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several discovery requests, and did not object to Defendant’s follow up letter

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regarding same. Also, though Defendant has indicated the need for a

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protective order, which Plaintiffs have no objection to, and despite the fact

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that Plaintiffs provided Defendant with a nearly four-week extension to

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respond to written discovery, Defendant failed to provide a draft protective

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order until after its discovery responses were due. Defendant’s attempt to rely

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on the lack of a protective order as a basis for not responding to discovery is

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nothing but a red herring as Defendant has always taken the position that it

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refuses to respond to discovery during the pendency of its motion to dismiss.

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Google’s Position Regarding Its Discovery Responses: Based on the Court’s

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standing order and this District’s Local Rules, Google disagrees with

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Plaintiffs’ position that they are not obligated to meet and confer any further.

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Indeed, Google has been consistently trying to engage Plaintiffs in the meet

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and confer process, but Plaintiffs have been unresponsive. Following the first

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(and only) meet and confer on December 29, Google’s counsel sent Plaintiffs’

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counsel a letter on January 5 that memorialized the discussion and invited a

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further meet and confer. To date, Plaintiffs have not responded to that letter.

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In addition, Google’s counsel sent Plaintiffs’ counsel an email on January 13

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that attached a draft stipulated protective order for Plaintiffs’ counsel

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consideration. Again, Plaintiffs’ counsel has to date not responded to that

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email. As explained in another email from Google’s counsel to Plaintiffs’

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counsel on January 24, Google has been and remains willing to continue the

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meet and confer process regarding Plaintiffs’ discovery. As is probably

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JOINT CASE MANAGEMENT STATEMENT
11-cv-02585-YGR

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evident, Google disagrees with Plaintiffs’ distorted characterization of the

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meet and confer process, and notes that the Court ordered the parties to

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describe the “status of discovery” in this Joint Case Management Statement,

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not engage in discovery argument. Accordingly, Google will not here refute

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each of Plaintiffs’ several misstatements, but rather seeks to summarize the

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discovery proceedings to date.

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Procedural history of case: An initial case management conference was
held on September 8, 2011, with a second case management hearing held on

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October 12, 2011. Defendants filed a Motion to Dismiss on October 14, 2011,

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for which the Parties have completed briefing. The hearing on the Motion

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was set for February 28, 2012, but has been vacated and re-noticed for March

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6, 2012.

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10.

The Court has scheduled a case management conference for February 9, 2012
at 9:00 a.m.

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Respectfully Submitted,

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Dated: January 27, 2012

EDELSON MCGUIRE, LLC

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By:

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Attorneys for Plaintiffs

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/s/ Rafey S. Balabanian

Dated: January 27, 2012

PERKINS COIE LLP

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By:

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Attorneys for Defendants

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JOINT CASE MANAGEMENT STATEMENT
11-cv-02585-YGR

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/s/ Bobbie J. Wilson

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SEAN P. REIS - SBN 184004
([e-mail])
EDELSON MCGUIRE LLP
30021 Tomas Street, Suite 300
Rancho Santa Margarita, California 92688
Telephone: [phone]

BOBBIE J. WILSON
JOSHUA A. REITEN
PERKINS COIE LLP
Four Embarcadero Center
24th Floor
San Francisco, CA 94111-4024
[phone]
[e-mail]

RAFEY S. BALABANIAN (Pro Hac Vice)
[e-mail]
CHRISTOPHER L. DORE (Pro Hac Vice)
[e-mail]
EDELSON MCGUIRE LLC
350 North LaSalle Street, Suite 1300
Chicago, IL 60654
Telephone: [phone]

DEBRA R. BERNARD (Pro Hac Vice)
PERKINS COIE LLP
131 S. Dearborn St., Suite 1700
Chicago, Il 60603
[phone]
[e-mail]

SCOTT D. OWENS (Pro Hac Vice)
2000 East Oakland Park Blvd., Suite 106
Fort Lauderdale, FL 33306
Telephone: [phone]
[e-mail]

Attorneys for Defendants

JORDAN L. LURIE
JOEL E ELKINS
WEISS & LURIE
10940 Wilshire Boulevard, 23rd Floor
Los Angeles, CA 90024
Telephone: [phone]
[e-mail]
[e-mail]

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STEFAN COLEMAN (Pro Hac Vice)
STEFAN COLEMAN, ESQ.
1072 Madison Avenue, Suite 1
Lakewood, NJ 08701
Telephone: [phone]

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Attorneys for Plaintiffs

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JOINT CASE MANAGEMENT STATEMENT
11-cv-02585-YGR

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CERTIFICATE OF SERVICE

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I, Rafey S. Balabanian, an attorney, hereby certify that on January 27, 2012, I served
the above and foregoing Joint Case Management Statement, by causing true and accurate
copies of such paper to be filed and transmitted to all counsel of record via the Court’s
CM/ECF electronic filing system.

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/s/ Rafey S. Balabanian

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JOINT CASE MANAGEMENT STATEMENT
11-cv-02585-YGR

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