Kinderstart.Com, LLC v. Google, Inc.

Filing 43

MOTION to Continue September 29, 2006 Hearing Date filed by Kinderstart.Com, LLC. (Attachments: # 1 Exhibit Exh. 1 - Declaration of Gregory J. Yu# 2 Proposed Order Plaintiffs' Proposal)(Yu, Gregory) (Filed on 8/4/2006)

Download PDF
Kinderstart.Com, LLC v. Google, Inc. Doc. 43 Case 5:06-cv-02057-JF Document 43 Filed 08/04/2006 Page 1 of 4 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 Gregory J. Yu (State Bar No. 133955) GLOBAL LAW GROUP 2015 Pioneer Court, Suite P-1 San Mateo, CA 94403 Telephone: (650) 570-4140 Facsimile: (650) 570-4142 E-mail: glgroup [at] inreach [dot] com Attorney for Plaintiffs and Proposed Class and Subclasses UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. C 06-2057 JF KINDERSTART.COM LLC, a California limited liability company, on behalf of itself and all others similarly situated, PLAINTIFF'S ADMINISTRATIVE REQUEST UNDER LOCAL RULE 7-11 Plaintiffs, REGARDING SCHEDULING, CASE MANAGEMENT, AND PROPOSED v. SECOND AMENDED COMPLAINT GOOGLE, INC., a Delaware corporation, Defendant. PROCEDURAL BACKGROUND On June 30, 2006, this Court heard oral argument on Defendant Google's motion to dismiss Plaintiff KinderStart.com LLC's First Amended Complaint (the "FAC") filed on April 12, 2006, under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (the "12(b) Motion"). The Court continued Defendant's Special Motion under California Code of Civil Procedure (CCP 425.16). At the hearing, the Court tentatively calendared September 29, 2006 for any new motions regarding Plaintiffs' proposed second amended complaint (the "Proposed SAC"). The parties were asked to confirm that date with the Court's clerk. In the Court's Order of July 13, 2006 (the "July 13 Order"), the 12(b) Motion was granted, with leave to amend. The order specifically allowed Plaintiffs the opportunity amend Counts Two through Nine of the FAC, and did not specify a date by which to file the Proposed SAC. Further, during the June 30, 2006 PLAINTIFFS' REQUEST UNDER L.R. 7-11 TO CONTINUE HEARING DATE -1- Case No. C 06-2057 JF Dockets.Justia.com Case 5:06-cv-02057-JF Document 43 Filed 08/04/2006 Page 2 of 4 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 hearing, the Court continued the Federal Rule of Civil Procedure 26(f) ("Rule 26(f)") case management conference to September 29, 2006. No scheduling order or deadlines have been set in this case thus far. BACKGROUND FOR THIS REQUEST A. Amendment of Count One First Amendment and Free Speech. The July 13 Order provides, in the opening paragraph, that the Rule 12(b) Motion "will be granted with leave to amend." For Count Two through Count Nine, inclusive, of the FAC, the Order states that there is leave to amend, but is silent on this point as to Count One. The Ninth Circuit generally allows plaintiffs as a matter of right to amend once, even after a motion to dismiss the complaint has been granted. This is, in part, because in such event no responsive pleading has been made by defendant under Fed. R. Civ. Proc. 15(a). Schreiber Distributing v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Plaintiffs should have leave to amend unless the Court determines that the complaint is beyond cure with the allegation of other facts. Cook, Perkiss & Liehe v. N. Cal. Collection Service, 911 F.2d 242, 247 (9th Cir. 1990). Here, the July 13 Order does not contain such a determination as to Count One. Nonetheless, as Plaintiffs are not to presume that leave to amend is indeed granted as to Count One, Plaintiffs seek clarification of the order on this point. B. Timing for Proposed Second Amended Complaint. The Rule 12(b) Motion was argued, heard and decided based on allegations appearing in the FAC as of April 12, 2006. Plaintiffs confirmed during the June 30, 2006 hearing that additional information was available and secured by Plaintiffs for inclusion in the Proposed SAC. Even since the hearing date, there have been several factual developments that properly require careful evaluation, investigation and inclusion within the Proposed SAC. This is explained in further detail in the accompanying Declaration of Gregory J. Yu, attached hereto as Exhibit 1 ("Yu Third Dec."), 3. C. Case Management Conference. Pursuant to Local Rule 16(d), Plaintiffs file this Administrative Request to seek a continuance of the case management conference tentatively set for September 29, 2006. Since the Proposed SAC when filed and served may result in a new Rule 12(b) motion from Defendant, the Rule 26(f) conference should be held when the motion PLAINTIFFS' REQUEST UNDER L.R. 7-11 TO CONTINUE HEARING DATE -2- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 43 Filed 08/04/2006 Page 3 of 4 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 has been briefed, heard and decided. Therefore, it is sensible to set the conference on a date concurrent with a continued motion hearing date. SPECIFIED REQUESTS A. Count One of the FAC. In the event that the July 13 Order itself does not allow Plaintiffs leave to amend Count One, Plaintiffs request that they be allowed 60 days to complete their investigation described in part in the Yu Third Dec. 3(c), with respect to information regarding the nature, terms, and conditions of relationships between Defendant and various Federal, state and local governments and their respective agencies. Following such detailed investigation and if leave to amend Count One of the FAC is indeed required by motion before the Court, Plaintiffs are prepared to notice such a motion for a hearing date of September 29, 2006 (or such later date as amenable to the parties and approved by the Court). B. Second Amended Complaint. Recent factual developments are enabling Plaintiffs to further bolster various allegations under the Proposed SAC. Yu Third Dec. 3. Accordingly, Plaintiffs estimate that another 60 days is needed for sufficient and proper evaluation and diligence. Plaintiffs request that the deadline for the Proposed SAC be set for October 6, 2006, with the date for hearing any motions thereon be scheduled for December 1, 2006 (or such later date as amenable to the parties and approved by the Court). C. Case Management Conference. Plaintiffs propose that the Case Management Conference remain concurrent with the proposed motion hearing date for the Proposed SAC of December 1, 2006 (or such later date as amenable to the parties and approved by the Court). In sum, Plaintiffs propose this schedule to the Court: October 6, 2006 October 27, 2006 November 10, 2006 November 17, 2006 December 1, 2006 Plaintiffs file Second Amended Complaint Defendant files its answer or motion (21 days) Plaintiffs file their opposition to any motion (14 days) Defendant files its reply to any opposition (7 days) Court hearing and Case Management Conference Defendant flatly declined Plaintiffs' request for a stipulation to this schedule and requested instead that the Proposed SAC be filed by August 11, 2006. Yu Third Dec. 4. PLAINTIFFS' REQUEST UNDER L.R. 7-11 TO CONTINUE HEARING DATE -3- Case No. C 06-2057 JF Case 5:06-cv-02057-JF Document 43 Filed 08/04/2006 Page 4 of 4 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 CONCLUSION In light of the above, the accompanying declaration of Gregory J. Yu, the documents and pleadings on file herein, Plaintiff KSC respectfully request the Court to continue the tentative hearing and case management conference date of September 29, 2006, with further procedings according to the foregoing schedule. Dated: August 4, 2006 GLOBAL LAW GROUP By: ____/s/ Gregory J. Yu__________________ Gregory J. Yu, Esq. Attorney for Plaintiff KinderStart.com LLC and for the proposed Class and Subclasses PLAINTIFFS' REQUEST UNDER L.R. 7-11 TO CONTINUE HEARING DATE -4- Case No. C 06-2057 JF

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?