McKinney v. Google, Inc. et al

Filing 108

ORDER CONSOLIDATING CASES, re (49 in 5:10-cv-03897-EJD) Joint Case Management Statement. IT IS HEREBY ORDERED that the above-captioned cases be consolidation. The Clerk shall consolidate these actions. Case No. 5:10-CV-01177 EJD is the earlier filed action and therefore shall be the lead case. Plaintiffs shall file a Consolidated Complaint no later than September 30, 2011. Plaintiffs shall file a Consolidated Complaint no later than September 30, 2011. Signed by Judge Edward J. Davila on September 15, 2011. (ejdlc2, COURT STAFF) (Filed on 9/15/2011) Modified text on 9/16/2011 (ecg, COURT STAFF). Modified on 9/30/2011 (cv, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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MARY MCKINNEY,

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Plaintiff,
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v.
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GOOGLE, INC., ET AL,
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Defendants.
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_______________________________________ )
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NATHAN NABORS,
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Plaintiff,
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v.
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GOOGLE, INC.,
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Defendant.
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Case No.: 5:10-CV-01177 EJD

Case No.: 5:10-CV-03897 EJD
ORDER CONSOLIDATING CASES

On August 30, 2011, this court ordered the parties in the above-captioned cases to file a

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joint statement addressing whether the cases should be consolidated and, if so, proposing a

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schedule for nomination of Lead Plaintiff and Lead Counsel. On September 9, 2011, the parties

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submitted a statement in which they agree the cases should be consolidated. Based on the joint

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statement, the court orders consolidation of the above-captioned cases.

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Case No.: 5:10-CV-01177 5:10-CV-03897 EJD
ORDER CONSOLIDATING CASES

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I. BACKGROUND

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Although the classes are defined slightly differently in the two actions, both cases were
filed on behalf of persons who purchased the Google Phone through www.google.com at any time

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between January 5, 2010 and the present. On January 29, 2010, Plaintiff Mary McKinney

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(“McKinney”) filed her complaint against T-Mobile USA, Inc. (“T-Mobile”), HTC Corporation,

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and Google Inc. (“Google”) in the Superior Court of California, Santa Clara. The case was

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removed to this court on March 22, 2010. Chief Judge Ware dismissed the claims against T-

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Mobile, leaving HTC and Google (“Defendants”) as the only remaining Defendants. On August

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United States District Court
For the Northern District of California

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31, 2010, Plaintiff Nathan Nabors (“Nabors”) filed his complaint against Google in this court. On

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October 22, 2010, Chief Judge Ware found these two actions were related to each other.

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On April 25, 2011, both cases were reassigned to the undersigned. On August 30, 2011,

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this court granted motions to dismiss the Second Amended Complaint in McKinney and the First

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Amended Complaint in Nabors and ordered McKinney and Nabors to file amended complaints no

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later than September 30, 2011.

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II. DISCUSSION

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A district court has broad discretion to consolidate actions involving “common issues of

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law or fact.” Fed. R. Civ. P. 42(a); Investors Research Co. v. U.S. Dist. Ct. for Cent. Dist. of Cal.,

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877 F. 2d 777, 777 (9th Cir. 1989). In exercising its broad discretion to order consolidation, a

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district court “weighs the saving of time and effort consolidation would produce against any

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inconvenience, delay, or expense that it would cause.” Huene v. U.S., 743 F.2d 703, 704 (9th Cir.

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1984).

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Having reviewed the most recent complaints filed in both of these actions, the court finds

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the two actions name the same core defendants and assert the same claims based on substantially

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the same core allegations of fact. Given the common issues of law and fact involved in these

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related cases, the court finds it appropriate to consolidate these cases.

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The joint statement reflects that the parties agree the law firms of Plaintiffs’ attorneys
should serve as co-Lead Counsel. The parties disagree, however, as to who should be appointed
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Case No.: 5:10-CV-01177 5:10-CV-03897 EJD
ORDER CONSOLIDATING CASES

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Lead Plaintiff. Plaintiffs propose that McKinney and Nabors serve as co-Lead Plaintiffs.

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Defendants propose a single Lead Plaintiff be appointed and propose that McKinney be the one

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selected. The court notes the parties’ stated preferences and declines to issue an order regarding

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appointment of Lead Plaintiff or Lead Counsel in the absence of formal motions.

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III. CONCLUSION

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IT IS HEREBY ORDERED that the above-captioned cases be consolidation. The Clerk
shall consolidate these actions. Case No. 5:10-CV-01177 EJD is the earlier filed action and

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therefore shall be the lead case. Plaintiffs shall file a Consolidated Complaint no later than

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United States District Court
For the Northern District of California

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September 30, 2011.

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IT IS FURTHER ORDERED that any motions for appointment of Lead Counsel and Lead

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Plaintiff shall be filed no later than September 30, 2011 and will be heard on November 4, 2011 at

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9 a.m. The briefing schedule shall comply with Civ. L.R. 7.

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Dated:

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_________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:10-CV-01177 5:10-CV-03897 EJD
ORDER CONSOLIDATING CASES