Mizera v. Google

Filing 30

Ex Parte MOTION to Vacate Briefing Schedule Pending Ruling on Motion to Stay filed by Google Inc.,. (Silbert, David) (Filed on 3/29/2006)

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Mizera v. Google Doc. 30 Case 5:05-cv-02885-RMW Document 30 Filed 03/29/2006 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KEKER & VAN NEST, LLP DARALYN J. DURIE - #169825 DAVID J. SILBERT - #173128 710 Sansome Street San Francisco, CA 94111-1704 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 Email: ddurie@kvn.com dsilbert@kvn.com Attorneys for Defendant GOOGLE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ADVANCED INTERNET TECHNOLOGIES, INC., a North Carolina corporation, Individually and on behalf of all others similarly situated, Plaintiffs, v. GOOGLE, INC., a Delaware corporation, and DOES 1 through 100, Inclusive, Defendants. STEVE MIZERA, an Individual, individually and on behalf of all others similarly situated, Plaintiff, v. GOOGLE, INC., a Delaware corporation; and DOES 1 through 100, inclusive, Defendants. Case No. C 05 02579 RMW Consolidated with Case No. C 05 02885 RMW DEFENDANT GOOGLE INC'S EX PARTE MOTION TO VACATE BRIEFING SCHEDULE PENDING RULING ON MOTION TO STAY Judge: Hon. Ronald M. Whyte June 24, 2005 Date Comp. Filed: Trial Date: None set 370022.01 GOOGLE'S EX PARTE MOTION TO VACATE BRIFING SCHEDULE Case No. C 05 02579 RMW Consolidated with C 05 02885 RMW Dockets.Justia.com Case 5:05-cv-02885-RMW Document 30 Filed 03/29/2006 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Under Civil L.R. 7-10, Google moves ex parte for an order vacating the classcertification briefing schedule to allow the Court to rule on Google's pending motion to stay. Google's class-certification brief is currently due on Monday, April 3. On March 9, Google filed an administrative motion under Civil L.R. 7-11 notifying the Court that Google had reached a nationwide class settlement in the parallel state-court case which, once finalized, will fully resolve the class claims in this case, and asking the Court to stay this action pending final approval of the settlement. See Declaration of David J. Silbert ("Silbert Decl.") Ex. A. Google requested a stay under Local Rule 7-11 because it believed that doing so was procedurally proper, and because a principal basis for the motion was to avoid undermining the state court's jurisdiction and wasting this Court's and the parties' resources by litigating class certification here while a settlement is being finalized in state court--requiring relief more quickly than a standard noticed motion would allow. See Silbert Decl. Exs. A and C. Plaintiff AIT, however, objected to the form of the motion to stay and argued that a noticed motion was required. See Silbert Decl. Ex. B. Further, the Court has not yet ruled on the motion, suggesting that the Court, too, may prefer the parties to address the matter more fully, including a hearing or additional briefing. To allow that to occur, the Court should vacate the existing class-certification schedule. Vacating that schedule is necessary to ensure that much of the harm that Google's motion seeks to forestall does not occur while that motion is being decided--namely, endangering "the delicate and transitory process of approving a [class-action] settlement agreement," see Sandpiper Vill. Condo. Ass'n v. Louisiana-Pacific Corp., 428 F.3d 831, 845 (9th Cir. 2005), and wasting the Court's and the parties' resources. Further, vacating the schedule will not prejudice AIT. If the Court denies the motion to stay, it may set new dates in the very near future. Vacating the existing class-certification schedule is also appropriate for two additional reasons. First, plaintiffs AIT and Mizera have provided written responses to Google's document requests, but they have interposed numerous objections, and have not yet produced any documents. See Silbert Decl. 3. By itself, this would be a reason to adjust the schedule to allow the parties to meet-and-confer over plaintiffs' discovery responses, and if necessary, 1 GOOGLE'S EX PARTE MOTION TO VACATE BRIFING SCHEDULE Case No. C 05 02579 RMW Consolidated with C 05 02885 RMW 370022.01 Case 5:05-cv-02885-RMW Document 30 Filed 03/29/2006 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 litigate, in order to address class-certification on a full record. Second, vacating the existing schedule is appropriate as a matter of fair play. Under the Court's original schedule, plaintiffs' class-certification motion was due on February 6, 2006, but they wanted additional time, and Google stipulated that they could have more time. See Silbert Decl. 4. In fact, Google accommodated plaintiffs to its own detriment--Google agreed that plaintiffs could have four additional weeks to file their motion, but in order to preserve the existing hearing date, agreed that the date for Google to file its opposition would be moved by only two weeks, thereby reducing by two weeks Google's time to oppose the motion. See id. and Ex. D. Plaintiffs, however, have refused Google's request to vacate those dates now to allow the Court to rule on the pending motion to stay. See Silbert Decl. 5. Class certification is among the most important issues that a court must decide in any class action, and especially so in this case, where there are significant reasons that plaintiffs' proposed class cannot be certified. As set forth in Google's motion to stay, Google believes that this Court should not address class certification at all, or conduct other proceedings, while the settlement in the state-court case is being finalized. At a minimum, however, the Court should vacate the existing class-certification schedule to enable it to fully consider the issues presented in that motion. Dated: March 29, 2006 KEKER & VAN NEST, LLP By: /s/ David Silbert ________ DAVID J. SILBERT Attorneys for Defendant GOOGLE, INC. 2 370022.01 GOOGLE'S EX PARTE MOTION TO VACATE BRIFING SCHEDULE Case No. C 05 02579 RMW Consolidated with C 05 02885 RMW

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