"The Apple iPod iTunes Anti-Trust Litigation"

Filing 55

ORDER DENYING DEFENDANT'S REQUEST FOR LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT; SETTING HEARING FOR PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT AND CASE MANAGEMENT CONFERENCE. Signed by Judge James Ware on March 23, 2006. (jwlc3, COURT STAFF) (Filed on 3/23/2006)

"The Apple iPod iTunes Anti-Trust Litigation"

Doc. 55

Case 5:05-cv-00037-JW

Document 55

Filed 03/23/2006

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1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

United United States District Court

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For the Northern District of California

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Thomas William Slattery, individually, and on behalf of all others similarly situated, v. Plaintiffs,

NO. C 05-00037 JW ORDER DENYING DEFENDANT'S REQUEST FOR LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT; SETTING HEARING FOR PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT AND CASE MANAGEMENT CONFERENCE

Apple Computer, Inc., Defendant. /

On February 21, 2006, Defendant filed an Administrative Request for Leave to File Motion for Summary Judgment. (hereafter, "Request," See Docket Item No. 44.) Defendant seeks leave because the Court's November 15, 2005 Order Following Case Management Conference states that "Defendant shall not file its motion for summary judgment before the motion for class certification is decided." (See Docket Item No. 42.) Defendant contends that the Court should permit them to file their motion for summary judgment before Plaintiff's class certification because early discovery reveals that the allegations contain in Plaintiff's complaint are false. (Request at 2.) Plaintiff's complaint alleges that Thomas William Slattery, purchased music online from Apple's iTunes music store during the class period, alleged as April 2003; that he was "force to purchase an Apple iPod device..." to play that music; and that he "has been forced to continue purchasing online digital music files solely from Apple's

Dockets.Justia.com

Case 5:05-cv-00037-JW

Document 55

Filed 03/23/2006

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iTunes store..." (Request at 2.) However, during his January 30, 2006 deposition, Slattery admitted that he had obtained no music from Apple's online store before buying an iPod. In fact, Slattery obtained music from Apple on only one occasion, and that was after filing his complaint. (Request at 3.) The Court finds that Defendant's request for leave to file a summary judgment motion is based purely on a challenge to Plaintiff Slattery's standing. Since this is a class action lawsuit, substitution of a proper class representative is permissible. Accordingly, the Court DENIES Defendant's request for leave to file a motion for summary judgment at this time. The Court sets May 8, 2006 at 9 a.m. as a hearing date for Plaintiff's motion for leave to file Second Amended Complaint. The parties shall follow the briefing schedule pursuant to the Civil Local Rules of this Court. The Court will also conduct a case management conference on the same date at 10 a.m. where the Court will discuss a new schedule for the case. The previously set case management for April 17, 2006 is effectively vacated.

United States District Court

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For the Northern District of California

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Dated: March 23, 2006

JAMES WARE United States District Judge

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Case 5:05-cv-00037-JW

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Filed 03/23/2006

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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: Adam Richard Sand [e-mail] Caroline N. Mitchell [e-mail] Eric J. Belfi [e-mail] Marc L. Godino [e-mail] Michael David Braun [e-mail] Robert A. Mittelstaedt [e-mail] Dated: March 23, 2006 Richard W. Wieking, Clerk By: /s/ JW Chambers Melissa Peralta Courtroom Deputy

United States District Court

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For the Northern District of California

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