Michael Malone v. eBay, Inc.

Filing 618

ORDER (1) DECLINING TO CONSOLIDATE CASE NUMBER 5:10-cv-03825 HRL WITH THE INSTANT CASE AND (2) REQUESTING ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED. Signed by Judge Jeremy Fogel on 9/10/10. (jflc3, COURT STAFF) (Filed on 9/10/2010)

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In Re eBay Seller Antitrust Litigation Doc. 618 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 1 **E-Filed 9/10/2010** IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION IN RE EBAY ANTITRUST LITIGATION Case Number 5:07-cv-01882 JF/RS ORDER1 (1) DECLINING TO CONSOLIDATE CASE NUMBER 5:10-cv-03825 HRL WITH THE INSTANT CASE AND (2) REQUESTING ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED eBay, Inc. ("eBay") has notified the Court that Smith v. eBay Corp. et al., Case No. 5:10cv-03825 HRL, has been transferred to the Northern District of California, San Jose Division, from Eastern District of Michigan. The parties stipulated to the transfer. (Case No. 10-03825 Docket No. 20.) eBay contends that Smith should be consolidated with the instant case pursuant to Stipulation and Case Management Order No. 1, which provides that: Each new case that arises out of the subject matter of [the instant case] which is . . . transferred to this Court, shall be consolidated with [the instant case] . . . unless a party in such [a] transferred action objects to consolidation, within ten (10) days after the date upon which a copy of this Order is served on counsel for such party, by filing an application for relief, and this Court deems it appropriate to grant such application. This disposition is not designated for publication in the official reports. C a s e No. 5:07-cv-01882 JF/HRL O R D E R (1) DECLINING TO CONSOLIDATE 5:10-cv-03825 HRL INTO THE INSTANT CASE, ETC. ( JF E X 1 ) Dockets.Justia.com 1 (Case No. 07-01882 Docket No. 18.) Plaintiffs' counsel in Smith have not filed an application 2 for relief. 3 The Court declines to consolidate Smith with the instant case. Under Federal Rule of 4 Civil Procedure 42(a), "[a] district court generally has `broad' discretion to consolidate actions . . 5 . ." Pierce v. County of Orange, 526 F.3d 1190, 1203 (9th Cir. 2008) (citing Investor's Research 6 Co. v. U.S. Dist. Court for Cent. Dist. of Cal., 877 F.2d 777, 777 (9th Cir. 1989)). However, 7 consolidation under Rule 42(a) applies only to actions "pending" before the court. Pan American 8 World Airways, Inc. v. United States Dist. Court for Cent. Dist., 523 F.2d 1073, 1080 (9th Cir. 9 10 Court's order of March 4, 2010, granting summary judgment in favor of eBay, and the judgment 11 in favor of eBay that was entered on the same day. Moreover, the basic purpose of Rule 42 12 consolidation would not be served in this instance. Consolidation is "permitted as a matter of 13 convenience and economy in administration. . . ." Johnson v. Manhattan R. Co., 289 U.S. 479, 14 496-97 (1933) (discussing former 28 U.S.C. 734, upon which Federal Rule of Civil Procedure 15 42 is based). As just described, the instant case has been closed, and the only active case 16 remaining is Smith. 17 However, the two actions may be related under Civil Local Rule 3-12(a). Pursuant to 18 Civil Local Rule 3-12(c), eBay is directed to file an administrative motion to permit the Court to 19 consider whether Smith should be related to the instant case. The motion shall be filed on or 20 before September 17, 2010. 21 // 22 // 23 24 25 26 27 28 Prior to its amendment in 2007, Rule 42(a) provided that "[w]hen actions involving a common question of law or fact are pending before the court, . . . it may order all the actions consolidated . . . ." See Pan American, 523 F.2d at 1080. Among the changes to Rule 42(a) in the 2007 amendment, the phrase "pending before the court" was deleted. Nonetheless, the advisory committee noted that the "changes are intended to be stylistic only." FED. R. CIV. P. 42 advisory committee's note. 2 C a se No. 5:07-cv-01882 JF/HRL O R D E R (1) DECLINING TO CONSOLIDATE 5:10-cv-03825 HRL INTO THE INSTANT CASE, ETC. ( JF E X 1 ) 2 1975).2 The instant case does not appear to be "pending," as it has been closed subsequent to the 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 IT IS SO ORDERED. DATED: 9/10/10 __________________________________ JEREMY FOGEL United States District Judge 3 C a se No. 5:07-cv-01882 JF/HRL O R D E R (1) DECLINING TO CONSOLIDATE 5:10-cv-03825 HRL INTO THE INSTANT CASE, ETC. ( JF E X 1 )

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