Almeida v. Google, Inc.

Filing 5

Administrative Motion to Consider Whether Cases Should be Related Pursuant to Civil Local Rule 3-12 by Google, Inc. (Bertenthal, Alyse) (Filed on 6/27/2008) Text modified on 6/27/2008 (bw, COURT STAFF).

Almeida v. Google, Inc.

Doc. 5

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KEKER & VAN NEST, LLP DARALYN J. DURIE - #169825 DAVID J. SILBERT - #173128 RYAN M. KENT - #220441 ALYSE BERTENTHAL - #253012 710 Sansome Street San Francisco, CA 94111-1704 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant GOOGLE, INC., a Delaware corporation

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

DAVID ALMEIDA, individually and on behalf of all others similarly situated, Plaintiff, v. GOOGLE, INC., a Delaware corporation; and DOES 1 through 10, inclusive, Defendants.

Case No. C 08-02088 HRL ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO CIVIL LOCAL RULE 3-12

Pursuant to Civil L.R. 3-12, Google, Inc. ("Google"), defendant in Case No. C08-02088 (HRL) ("Almeida v. Google"),1 files this administrative motion asking the Court to consider whether Almeida v. Google should be related to the earlier-filed and decided Case No. C 0502579 ("Advanced Internet Technologies, Inc. v. Google, Inc."), which was consolidated with A copy of the April 22, 2008 Complaint filed in Almeida v. Google is attached hereto as Exhibit A ("Almeida Complaint") to the Declaration of Alyse D. Bertenthal in Support of Defendant's Administrative Motion to Consider Whether Cases Should Be Related ("Bertenthal Decl."). Pursuant to Local Rule 73-1, Google has concurrently filed a Declination to Proceed Before a Magistrate Judge. 1
ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO CIVIL LOCAL RULE 3-12 CASE NO. C 08-020888 HRL Dockets.Justia.com
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Case No. C 05-02885 ("Steve Mizera v. Google, Inc.") (collectively "the Consolidated Cases"),2 which were pending before the Honorable Ronald M. Whyte. This case appears to be related to the Consolidated Cases under Civil L.R. 3-12. First, the cases concern "substantially the same parties." See Civil L.R. 3-12(a)(1). Google is the defendant in all the cases, and the putative class in Almeida v. Google likely overlaps with the putative class in the Consolidated Cases (compare Almeida Complaint ¶ 13 with AIT Complaint ¶ 39 and with Mizera SAC ¶ 39). Plaintiffs' counsel and defense counsel in all the cases is the same as well. Second, "it appears likely that there will be an unduly burdensome duplication of labor and expense . . . if the cases are conducted before different Judges." See Civil L.R. 3-12(a)(2). All of the cases involve, and require an understanding of, similar subject matter: the AdWords bidding process; the way that ads are displayed on Google and its advertising network; and the manner in which Google charges advertisers for their ads. (Compare Almeida Complaint ¶¶ 1113 with AIT Complaint ¶¶ 13-18, 35-38 and with Mizera SAC ¶¶ 13-18, 35-38.) In addition, the settlement and release that formed the basis of the judgment in the Consolidated Cases may also bar some or all of the claims in Almeida v. Google. For the foregoing reasons, and pursuant to Civil L.R. 3-12, Google respectfully requests that the Court consider whether the pending Almeida v. Google action should be related to the previously filed Advanced Internet Technologies, Inc. v. Google, Inc. and Mizera v. Google, Inc. actions.

The Advanced Internet Technologies case was initially filed by Clicks Defense, Inc., but Advanced Internet Technologies, Inc. was later substituted as the named plaintiff in that case. See Order (Jan. 13, 2006), Dkt. No. 40. A copy of the June 24, 2005 Complaint filed in Clicks Defense, Inc. v. Google, Inc. is attached hereto as Bertenthal Decl., Exhibit B ("AIT Complaint"). A copy of the November 22, 2005 Second Amended Complaint filed in Steven Mizera v. Google, Inc. is attached hereto as Bertenthal Decl., Exhibit C ("Mizera SAC"). 2
ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO CIVIL LOCAL RULE 3-12 CASE NO. C 08-020888 HRL

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Dated: June 27, 2008

KEKER & VAN NEST, LLP

By: /s/ David Silbert ___________________ DAVID J. SILBERT Attorneys for Defendant GOOGLE, INC.

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ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO CIVIL LOCAL RULE 3-12 CASE NO. C 08-020888 HRL

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PROOF OF SERVICE

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I am employed in the City and County of San Francisco, State of California in the offce of a member of the bar ofthis court at whose direction the following service was made. I am over the age of eighteen years and not a party to the within action. My business address is Keker & Van Nest, LLP, 710 Sansome Street, San Francisco, California 94111.
On June 27, 2008, I served the following documents:

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(1) ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO CIVIL LOCAL RULE 3-12;

(2) DECLARTION OF AL YSE D. BERTENTHAL IN SUPPORT OF DEFENDANT GOOGLE'S ADMINISTRATIVE MOTION TO
CONSIDER WHETHER CASES SHOULD BE RELATED PURSUANT TO CIVIL LOCAL RULE 3-12

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(1) By E-MAL VIA PDF FILE, by transmitting on this date via e-mail a true and correct copy scanned into an electronic file in Adobe "pdf' format. The transmission was reported as complete and without error; and

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(2) By regular UNITED STATES MAIL by placing a tre and correct copy in a sealed envelope addressed as shown below. I am readily familiar with the practice ofKeker & Van Nest, LLP for collection and processing of correspondence for mailing. According to that practice, items are deposited with the United States Postal Service at San Francisco, California on that same day with postage thereon fully prepaid. I am aware that, on motion of the pary served, service is presumed invalid if the postal cancellation date or the postage meter date is more than one day after the date of deposit for mailing stated in this affdavit.
Richard L. Kellner, Esq. Kabatek Brown Kellner, LLP 644 South Figueroa Street Los Angeles, CA 90017
Tel: [phone] Fax: [phone]

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Email: rlk(fkbklawyers.com
Chitwood Harley Hames, LLP

21 Darren T. Kaplan, Esq.
22 11 Grace Avenue.

Shawn Khorrami, Esq. Khorrami Pollard & Abir, LLP
444 S. Flower St., 33rd Floor

Suite 306

23 Great Neck, NY 11021

516-773-6090

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Los Angeles, CA 90071 213-596-6000 Fax: [phone] Email: skhorrami(ikhorrami.com

Email: dkaplan(qchitwoodlaw.com

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Executed on June 27, 2008, at San Francisco, California.

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I declare under penalty of peijury under the laws of the State of California that the above is true
and

correct. ~ _ ~~.(
Kay ShidY .
PROOF OF SERVICE CASE NO. C 08-020888 HRL

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