McKinney v. Google, Inc. et al

Filing 99

JOINT CASE MANAGEMENT STATEMENT JOINT CASE MANAGEMENT CONFERENCE STATEMENT filed by Google, Inc., HTC Corp., Mary McKinney. (Larrabee, Matthew) (Filed on 5/5/2011)

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MATTHEW L. LARRABEE (No. 97147)

[e-mail]
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DECHERT LLP
One Maritime Plaza, Suite 2300
San Francisco, California 94111-3513
Telephone: [phone]
Facsimile: 415.262.4555

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STEVEN B.WEISBURD (No. 171490)

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[e-mail]
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DECHERT LLP
300 West 6th Street, Suite 2010
Austin, Texas 78701-3901
Telephone: [phone]
Facsimile: 512.394.3001
Attorneys for Defendant
GOOGLE INC.

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ROSEMARIE T. RING (No. 220769)
[e-mail]
MUNGER, TOLLES & OLSON LLP
560 Mission Street, 27th Floor
San Francisco, CA 94105-2907
Telephone: [phone]
Facsimile: 415.512.4077

SARA D. AVILA (No. 263213)
[e-mail]
MILSTEIN, ADELMAN & KREGER, LLP
2800 Donald Douglas Loop North
Santa Monica, California 90405
Telephone [phone]
Facsimile 310.396.9635
JOE R. WHATLEY, JR. (pro hac vice pending,
NY Bar No.4406088)
[e-mail]
EDITH M. KALLAS (pro hac vice pending,
NY Bar No. 2200434)
[e-mail]
PATRICK J. SHEEHAN (pro hac vice pending,
NY Bar No. 3016060)
[e-mail]
WHATLEY DRAKE & KALLAS, LLC
1540 Broadway, 37th Floor
New York, New York 10036
Telephone: [phone]
Facsimile: 212.447.7077
Attorneys for Plaintiff MARY MCKINNEY

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Attorneys for Defendant HTC
CORPORATION

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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MARY MCKINNEY, Individually and on
behalf of All others Similarly Situated,

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Plaintiff,

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v.

Case No. 5:10-CV-01177 EJD
JOINT CASE MANAGEMENT
CONFERENCE STATEMENT
Dept:
Judge:

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Hon. Edward J. Davila

GOOGLE INC., a Delaware Corporation;
HTC CORP., a Taiwanese Corporation,

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Defendants.
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D ECHERT LLP
ATTORNEYS AT LAW
SAN FRANCISCO

JOINT CASE MANAGEMENT CONFERENCE STATEMENT
CASE NO. 5:10-CV-01177 EJD

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Pursuant to the reassignment order dated April 25, 2011, the parties submit this Joint Case

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Management Statement.

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A.

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Date case was filed.
Plaintiff filed her original complaint on January 29, 2010 in the Superior Court of

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California, Santa Clara. Defendants removed the action to this Court on March 22, 2010. See

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McKinney Docket No. 2.

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B.

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List of all parties.
Plaintiff is Mary McKinney (“Plaintiff”), a Pennsylvania resident, who purports to assert

claims on her own behalf and as representative of a putative nationwide class defined as “All

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persons in the United States who purchased the Google Phone through www.google.com at any

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time between January 5, 2010 and the present and who either (a) received a rebate for their phone

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because they have a T-Mobile service plan for access to its 3G wireless network or (b) paid the

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full price for an ‘unlocked’ Google phone for use on another 3G network.” Second Amended

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Complaint (“SAC”), ¶¶ 2, 15.

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There were initially three defendants in this action: T-Mobile USA, Inc. (“T-Mobile”),

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Google Inc. (“Google”), and HTC Corporation (“HTC”). Judge Ware dismissed T-Mobile after

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granting T-Mobile’s motion to compel arbitration of any and all claims asserted against it,

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pursuant to Plaintiff’s subscription agreement for services with T-Mobile.

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The two remaining defendants are Google, a Delaware corporation with its principal place

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of business in Mountain View, California; and HTC Inc. (“HTC”), a Taiwanese corporation. As

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used herein, “Defendants” refers to Google and HTC.

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C.

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Summary of all claims.
Plaintiff asserts legal claims arising out of her purchase of a Nexus One smartphone –

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which she refers to as the “Google Phone” – based on its alleged failure to provide “consistent”

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connectivity to T-Mobile’s 3G wireless network. Plaintiff alleges that the Nexus One was

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developed and marketed by Google, manufactured by HTC, and that T-Mobile is her 3G wireless

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service provider. SAC ¶¶ 10. 11. 12. She alleges that the Nexus One is an “advanced mobile

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cellular phone” – or “smartphone” – that provides various features, including voice service,
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D ECHERT LLP
ATTORNEYS AT LAW
SAN FRANCISCO

JOINT CASE MANAGEMENT CONFERENCE STATEMENT
CASE NO. 5:10-CV-01177 EJD

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Internet access, email, texting, and other audio and video capabilities. Id. ¶ 41. Plaintiff further

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alleges that the device is designed to provide these features on either a “3G” wireless network or a

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“2G” wireless network (also known as “GSM/EDGE”), and to switch between networks as they

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become available. Id. ¶¶ 52, 53. Plaintiff alleges that she has been dissatisfied because her

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Nexus One does not maintain “consistent” connectivity to T-Mobile’s 3G wireless network and

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has been unhappy with Defendants’ allegedly inadequate customer service. According to her

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complaint, Google and HTC misrepresented and warranted that the Nexus One would maintain

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“consistent” 3G connectivity and thereby would operate as what Plaintiff calls a “true 3G device.”

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On November 16, 2010, Judge Ware granted Google and HTC’s Rule 12(b)(6) motion and

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dismissed the three claims asserted in Plaintiff’s First Amended Complaint, including Plaintiff’s

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state and federal breach of warranty claims, and her federal statutory claim under the Federal

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Communications Act, 47 U.S.C. §§ 201, 207, with leave to amend. See Exh. A (Nov. 16, 2010

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Order); Exh. B (Transcript of Nov. 1, 2010 Hrg.).

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Plaintiff then filed her Second Amended Complaint, which asserts ten (10) causes of

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action – including statutory claims under California’s Unfair Competition Law, Cal. Bus. & Prof.

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Code §§ 17200 et seq., False Advertising Law, Cal. Bus. & Profs. Code §§ 17500 et seq.), and

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Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq.; claims for breach of express

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warranty and breach of the implied warranty of merchantability under state law and the federal

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Moss-Magnuson Warranty Act, 15 U.S.C. §§ 2301, et seq.; common law claims for negligence,

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negligent misrepresentation, and fraud; “common counts and unjust enrichment”; and, finally, a

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separate claim for “declaratory relief” with respect to the parties rights and obligations on the

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other claims.

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D.

Brief description of the event underlying the action.

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Plaintiff alleges that she purchased a Nexus One over the internet through

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www.google.com and has been unhappy with her alleged inability to receive “consistent”

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connectivity to T-Mobile’s 3G wireless network and Defendants’ allegedly inadequate customer

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service. She alleges that she bought a Nexus One with the expectation that it would provide

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“consistent” 3G connectivity and thereby operate as what she refers to as a “true 3G device.”
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D ECHERT LLP
ATTORNEYS AT LAW
SAN FRANCISCO

JOINT CASE MANAGEMENT CONFERENCE STATEMENT
CASE NO. 5:10-CV-01177 EJD

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Plaintiff alleges that her expectations have been frustrated because the Nexus One has not

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provided “consistent” 3G connectivity to T-Mobile’s 3G wireless network.

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E.

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Description of relief sought and damages claimed.
Plaintiff’s Second Amended Complaint seeks injunctive and declaratory relief, restitution

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and damages, attorney’s fees, costs and interest.

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F.

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Status of discovery.
To date, no discovery has commenced because the pleadings are not settled and, under

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Judge Ware’s management of the case, no discovery was proper unless and until the pleadings are

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settled and it is determined by the Court whether Plaintiff has any viable legal claim. On October

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20, 2010, Judge Ware continued the parties’ initial case management conference in light of the

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then-pending Rule 12(b)(6) motions to dismiss Plaintiff’s First Amended Complaint. No case

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management conference was held because, as noted above, Judge Ware granted the motion to

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dismiss with leave to amend, and Plaintiff thereafter filed her Second Amended Complaint.

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Defendants’ Rule 12(b)(6) motion to dismiss all of the claims asserted in that complaint is fully

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briefed. Under Judge Ware’s management of this action to date, the parties agree that discovery

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continues to be premature. McKinney, however, remains ready to proceed with discovery at the

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earliest possible time.

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G.

Procedural history of the case.

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Defendants removed the action to this Court on March 22, 2010. Plaintiff voluntarily

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amended her complaint on June 11, 2010. Defendants then filed motions to dismiss the First

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Amended Complaint, including T-Mobile’s motion to compel arbitration as well as Google and

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HTC’s joint Rule 12(b)(6) motion to dismiss. On October 8, 2010, Judge Ware related this case

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to Nathan Nabors v. Google Inc., Case No. C 10-3897, another putative class action filed by the

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same counsel and asserting the same claims but only against Google. Oral argument on motions

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to dismiss was heard by the Court on November 1, 2010 (a transcript of which is attached as

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Exhibit B). On November 16, 2010, Judge Ware issued the Court’s Order granting T-Mobile’s

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motion to compel arbitration, and also granting Google and HTC’s motion to dismiss the First

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Amended Complaint with leave to amend. On December 3, 2010, Plaintiff filed her Second
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D ECHERT LLP
ATTORNEYS AT LAW
SAN FRANCISCO

JOINT CASE MANAGEMENT CONFERENCE STATEMENT
CASE NO. 5:10-CV-01177 EJD

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Amended Complaint, which asserted claims against Google and HTC. Defendants moved to

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dismiss the Second Amended Complaint; that motion was fully briefed when the case was

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reassigned to this Court on April 25, 2011. On April 29, 2011, the Court reset the hearing on

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Defendants’ motion to dismiss to July 1, 2011 at 9:00 a.m.

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H.

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Not applicable.
I.

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Any requested modification of these dates.
Not applicable.

J.

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Other deadlines in place.

Whether the parties will consent to a magistrate judge for trial.
The parties will not consent to a magistrate judge for trial.

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If there exists an immediate need for a case management conference to be scheduled.
No case management conference is appropriate or necessary at this time.

Dated: May 5, 2011

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Respectfully submitted,
DECHERT LLP

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By: /s/ Steven B. Weisburd
Steven B. Weisburd

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Counsel for Defendant GOOGLE INC

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Dated: May 5, 2011

MUNGER, TOLLES & OLSON LLP

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By: /s/ Rosemarie T. Ring
Rosemarie T. Ring

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Counsel for Defendant HTC CORP.

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Dated: May 5, 2011

MILSTEIN ADELMAN, LLP
WHATLEY DRAKE & KALLAS, LLC

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By: /s/ Sara Avila
Sara Avila

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D ECHERT LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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JOINT CASE MANAGEMENT CONFERENCE STATEMENT
CASE NO. 5:10-CV-01177 EJD

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