Sanbrook v. Office Depot, Inc. et al

Filing 87

ORDER CONTINUING HEARING ON 46 PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND REQUESTING ADDITIONAL BRIEFING. Signed by Judge Whyte on 12/16/08. (rmwlc2, COURT STAFF) (Filed on 12/16/2008)

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ORDER CONTINUING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND REQUESTING ADDITIONAL BRIEFING --No. C-07-05938 RMW JAS

E-FILED on 12/16/08

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

MARY SANBROOK on behalf of herself and others similarly situated, Plaintiff, v. OFFICE DEPOT, INC., Defendant.

No. C-07-05938 RMW ORDER CONTINUING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND REQUESTING ADDITIONAL BRIEFING [Re Docket No. 46]

Plaintiff Mary Sanbrook ("Sanbrook") filed a motion for class certification on July 25, 2008, and originally noticed it for a hearing on December 5, 2008. Office Depot filed its opposition on

September 19, 2008. After a stipulated extension, Sanbrook filed a reply on December 1, 2008. Sanbrook's reply introduced two new proposed class definitions, and provided, for the first time, factual support in the form of declarations and documents. See Pl.'s Reply ISO Mot. for Class Certification 3; Decl. of Barbara Quinn Smith ISO Class Certification Reply. Additionally, the reply is twenty five pages long, in violation of Local Rule 7-4(b).

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Raising new issues in a reply "transgresses against the canons of fair forensics," and is generally improper. Fredrick v. United States, 163 F.2d 536, 549 (9th Cir. 1947); Eberle v. City of Anaheim, 901 F.2d 814 (9th Cir. 1990). In her reply, Sanbrook concedes that the evidence is new, but argues that, because of Office Depot's delays, evidence was acquired during the course of classcertification briefing. Pl.'s Reply ISO Mot. for Class Certification 8. Sanbrook apparently chose to move for class certification before collecting the necessary factual support. Office Depot should thus have an opportunity to respond. The court continues the hearing on plaintiff's motion for class certification to January 23, 2009. The court requests that Office Depot submit a sur-reply to Sanbrook's class-certification reply, not to exceed 15 pages, by January 9, 2008.

DATED:

12/16/08

RONALD M. WHYTE United States District Judge

ORDER CONTINUING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND REQUESTING ADDITIONAL BRIEFING --No. C-07-05938 RMW JAS 2

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Notice of this document has been electronically sent to: Counsel for Plaintiff: Scott Richard Kaufman Barbara Quinn Smith Marnie Cherie Lambert Thomas K. Caldwell Counsel for Defendants: David Michael Walsh Robin Jonathan Samuel Julie Shepard Laura Michelle Wilson [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail]

Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program.

Dated:

12/16/08

/s/ JAS Chambers of Judge Whyte

ORDER CONTINUING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND REQUESTING ADDITIONAL BRIEFING --No. C-07-05938 RMW JAS 3