Campbell et al v. Facebook Inc.
Filing
105
REPLY (re 96 MOTION to Dismiss Claims and Withdraw David Shadpour as Putative Class Representative ) filed byMatthew Campbell, Michael Hurley, David Shadpour. (Attachments: # 1 Declaration of Melissa Gardner)(Gardner, Melissa) (Filed on 8/3/2015)
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Michael W. Sobol (State Bar No. 194857)
msobol@lchb.com
Melissa A. Gardner (State Bar No. 289096)
mgardner@lchb.com
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: 415.956.1000
Facsimile: 415.956.1008
Rachel Geman
rgeman@lchb.com
Nicholas Diamand
ndiamand@lchb.com
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: 212.355.9500
Facsimile: 212.355.9592
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Attorneys for Plaintiffs and the Proposed Class
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Patrick V. Dahlstrom
pdahlstrom@pomlaw.com
POMERANTZ, LLP
10 S. La Salle Street, Suite 3505
Chicago, Illinois 60603
Telephone: 312.377.1181
Facsimile: 312.377.1184
Hank Bates (State Bar No. 167688)
hbates@cbplaw.com
Allen Carney
acarney@cbplaw.com
David Slade
dslade@cbplaw.com
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: 501.312.8500
Facsimile: 501.312.8505
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Jeremy A. Lieberman
Lesley F. Portnoy
info@pomlaw.com
POMERANTZ, LLP
600 Third Avenue, 20th Floor
New York, New York 10016
Telephone: 212.661.1100
Facsimile: 212.661.8665
[Additional Counsel listed on Signature page]
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MATTHEW CAMPBELL, MICHAEL
HURLEY, and DAVID SHADPOUR, on
behalf of themselves and all others
similarly situated,
Plaintiffs,
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PLAINTIFFS’ REPLY IN SUPPORT OF
MOTION TO WITHDRAW PUTATIVE
CLASS REPRESENTATIVE AND
DISMISS CLAIMS WITHOUT
PREJUDICE
v.
FACEBOOK, INC.,
Case No. C 13-05996 PJH
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Defendant.
Date:
Time:
Crtrm:
Judge:
September 9, 2015
9:00 a.m.
3, Third Floor
Honorable Phyllis J. Hamilton
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REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH
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I.
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INTRODUCTION
Plaintiffs’ interim class counsel file this Reply in support of their motion for an order (i)
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permitting putative Class representative David Shadpour to be dismissed as a party to this
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litigation; (ii) withdrawing Mr. Shadpour’s claims without prejudice as to his rights as an absent
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member of the putative Class; (iii) declaring that Mr. Shadpour need not appear for a noticed
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deposition nor complete document production in this action; and (iv) prohibiting Defendant
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Facebook, Inc. (“Facebook”) from propounding further discovery as to Mr. Shadpour. Facebook
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has failed to establish that it will suffer any legal prejudice from such a result. Accordingly,
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Plaintiffs’ interim class counsel respectfully submit that the Court should grant their motion.
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II.
ARGUMENT
A.
Facebook Has Not Established Plain Legal Prejudice Should Mr. Shadpour’s
Claims Be Withdrawn Without Discovery Conditions
The Ninth Circuit is clear: the standard for applying discovery conditions upon the
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withdrawal of a putative class representative is demonstration by the defendant of “plain legal
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prejudice.” “[A] district court should grant a motion for voluntary dismissal unless a defendant
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can show that it will suffer some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d
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972, 975 (9th Cir. 2001) (quoting Waller v. Fin. Corp. of Am., 828 F.2d 579, 583 (9th Cir. 1987)).
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Facebook has not established such prejudice. Neither Facebook’s assertion that Mr. Shadpour
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may have information “relevant” to Facebook’s opposition to class certification (Defendant
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Facebook, Inc.’s Opposition to Plaintiffs’ Motion to Withdraw Plaintiff David Shadpour Without
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Prejudice (“Facebook’s Opposition”), at 8) nor its claims of Mr. Shadpour’s continued use of the
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Facebook messaging product at issue in this litigation support the requisite showing.
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Indeed, the authorities cited in Facebook’s Opposition frame their analysis with the “plain
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legal prejudice” standard. See Fraley v. Facebook, Inc., No. 11-01726, 2012 WL 893152, at *3
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(N.D. Cal. Mar. 13, 2012) (“The Ninth Circuit has held that a Rule 41(a)(2) motion for voluntary
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dismissal should be granted ‘unless a defendant can show that it will suffer some plain legal
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prejudice as a result.’”) (quoting Smith); Sherman v. Yahoo! Inc., No. 13-0041, 2015 WL 473270,
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at *7 (S.D. Cal. Feb. 5, 2015) (“[T]he inability to conduct sufficient discovery for a defense can
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REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH
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amount to legal prejudice. . . A court may, but need not, condition a Rule 41(a)(2) dismissal on a
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plaintiff’s deposition or production of discovery.”); Pappas v. Naked Juice Co. of Glendora, No.
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11-8276, 2012 WL 12248744, at *2 n.2 (C.D. Cal. Dec. 7, 2012) (applying “plain legal prejudice”
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standard to ascertain whether withdrawal of named plaintiff should be conditioned on additional
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discovery).
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In the Ninth Circuit, “‘legal prejudice’ means ‘prejudice to some legal interest, some legal
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claim, some legal argument.’” Sherman, at *2 (quoting Smith). The court in Roberts v.
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Electrolux Home Prods., Inc., No. 12-1644, 2013 U.S. Dist. LEXIS 115870 (C.D. Cal. Aug. 14,
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2013), applied this standard. While not expressly citing Federal Rule of Civil Procedure 41, the
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court relied upon In re Vitamins Antitrust Litig—Id. at *4 (citing 198 F.R.D. 296, 304 (D.D.C.
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2000) (“[i]n federal practice, [under Federal Rule of Civil Procedure 41], voluntary dismissals
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sought in good faith are generally granted ‘unless the defendant would suffer prejudice other than
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the prospect of a second lawsuit or some tactical advantage.’”)—and Doe v. Arizona Hosp. &
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Healthcare Ass’n—Id. (citing 2009 WL 1423378, at *13 (D. Ariz. Mar. 19, 2009) (applying the
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same standard under Federal Rule of Civil Procedure 41, granting motion for dismissal of
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putative Class representative’s claims, without discovery conditions)).
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In an attempt to turn the relevant standard on its head, Facebook relies on Federal Rule of
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Civil Procedure 30(a) which authorizes the depositions of parties. Mr. Shadpour would no longer
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be a party to this litigation if Facebook had stipulated to his withdrawal without unnecessary
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discovery conditions, as Plaintiffs’ counsel requested months before Facebook initiated a letter
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brief to compel Mr Shadpour’s deposition, and necessitated the involvement of this Court.
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Facebook also relies upon inapposite cases that were decided in the context of a motion for a
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protective order by a named plaintiff who had not yet formally sought to withdraw from the case.
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See e.g., Pappas v. Naked Juice Co. of Glendora, No. 11-8276, 2012 WL 12248744, at *3 (C.D.
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Cal. Dec. 7, 2012) (denying, in part, motion for protective order who stated he had not sought to
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withdraw because he was still negotiating a stipulation for dismissal with defense counsel).
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Here, like the defendants in Electrolux, and Arizona Hospital, no “plain legal prejudice”
to Facebook’s defenses would result if Facebook is not allowed to condition Mr. Shadpour’s
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REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH
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withdrawal on his deposition and additional discovery. Facebook incorrectly contends that it
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needs Mr. Shadpour’s document production and deposition testimony in order to defend against
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the upcoming motion for class certification. To establish plain legal prejudice in this context, a
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defendant must show that without the discovery sought, the plaintiff’s withdrawal would result in
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an “inability to conduct sufficient discovery for a defense.” Sherman, 2015 WL 473270, at *7.
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Facebook cannot demonstrate plain legal prejudice. Instead, Facebook claims that Mr.
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Shadpour, who no longer seeks to represent the Class, may have information “relevant” to
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Facebook’s opposition to class certification. (Facebook Opposition at 8). Substantively,
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Facebook points to indications that Mr. Shadpour continued to use the Facebook messaging
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product and other social media after filing his complaint (as, for example, did Plaintiff Matthew
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Campbell), and to the Plaintiffs’ common allegations regarding Facebook’s public disclosures
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about private messages. As discussed in the opening brief on this motion, that is not the type of
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individualized, otherwise unobtainable, information that defendants have been entitled to obtain
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from withdrawing plaintiffs in cases like Dysthe v. Basic Research, LLC, 273 F.R.D. 625, (C.D.
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Cal. 2011); Fraley v. Facebook, Inc., No. 11-1726, 2012 WL 555071 (N.D. Cal. Feb. 21, 2012)
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(Grewal, M.J.); and Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., No. 09-02757,
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2011 WL 5865059 (D. Colo. Nov. 22, 2011). Rather, the generalized information that Facebook
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purports to need from Mr. Shadpour regarding putative Class members’ use of Facebook and
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other social media has already been obtained from Plaintiffs Campbell and Hurley during their
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depositions on June 19 and July 9, respectively.
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Facebook relies on authority that is both procedurally and substantively inapposite. Nilon
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v. Natural-Immunogenics Corporation, for example, concerned a defendant’s motion to compel
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the deposition of the sole lead plaintiff extremely late in the litigation—after the fact discovery
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deadline had passed—and who had failed to appear for, or canceled, his noticed deposition
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several times over the course of fourteen months before the defendant filed the motion to compel.
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No. 12- 00930, 2014 WL 3779006, at *1-*3 (S.D. Cal. July 31, 2014). Unlike this case, where
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the record reflects interim Class counsel’s efforts to dismiss Mr. Shadpour’s claims by agreement
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going back to the first months of fact discovery, in Nilon, Plaintiff’s counsel provided “no
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REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH
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explanation” for why they did not seek to substitute a new named plaintiff until after the
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defendant brought a motion to compel. Id. at *4. Likewise, Funke v. Life Financial Corporation
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also does not support Facebook here. No. 99-11877, 2003 WL 21182763 (S.D.N.Y. May 20,
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2003). Funke concerned enforcement of an existing order to appear for a deposition against a
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lead plaintiff whose deposition had been ordered before the plaintiff filed a notice of withdrawal,
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and who had made “no mention” of his intent to withdraw when the issue had been briefed just
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weeks before. Id. at *2.
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B.
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Facebook’s Claim That Discovery Has Been Asymmetrical Is Neither Correct
Nor Availing
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Contrary to Facebook’s claim that discovery in this action has been “asymmetrical,”
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(Facebook Opposition at 11) the discovery propounded by Facebook has been exceptionally
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invasive and burdensome. In this case brought to enforce the right to privacy in private
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correspondence, Plaintiffs Campbell and Hurley have responded to Facebook’s document
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requests by producing partially redacted copies of all of the non-privileged private messages
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containing URLs stored in their password-protected Facebook accounts. Declaration of Melissa
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Gardner (“Gardner Decl.”), ¶ 2. For Mr. Campbell, this required divulging nearly 200 pages of
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personal correspondence. Id. ¶ 3. In response to Facebook’s Interrogatories, they provided not
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only the names of the friends and acquaintances with whom they had shared these private
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communications, but also links to those absent Class members’ Facebook profiles. Id. ¶ 4.
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Subsequently, in July 2015, Facebook served subpoenas on four of those parties, noticing the
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depositions of two individuals who had sent or received messages from Mr. Campbell, and of two
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who had sent or received messages from Mr. Hurley.1 Id. ¶ 5.
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Facebook has failed to show why, given that Mr. Shadpour has made no unique
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allegations in the operative Complaint, and no longer seeks to represent the Class, Facebook
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cannot make its implied consent or other arguments against class certification without obtaining
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additional specific details about Mr. Shadpour’s private messaging history, contacts, and use of
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Three of those depositions are scheduled to take place in the first two weeks of August. Gardner
Dec. ¶ 6.
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REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH
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social media. Thus, Facebook has not met its burden to show that Mr. Shadpour’s dismissal
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without discovery conditions would result in plain legal prejudice to its legal arguments, claims,
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or defenses. Smith, 263 F.3d at 976.
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III.
CONCLUSION
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Accordingly, for the foregoing reasons and for the reasons stated in their opening brief,
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Plaintiffs’ interim Class counsel respectfully request that this Court dismiss Mr. Shadpour as a
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party, and deny Facebook’s request that such dismissal be conditioned upon his deposition or any
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additional discovery responses.
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REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH
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Dated: August 3, 2015
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
By:
/s/ Melissa A. Gardner
Melissa A. Gardner
Michael W. Sobol (State Bar No. 194857)
msobol@lchb.com
Melissa A. Gardner (State Bar No. 289096)
mgardner@lchb.com
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: 415.956.1000
Facsimile: 415.956.1008
Rachel Geman
rgeman@lchb.com
Nicholas Diamand
ndiamand@lchb.com
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: 212.355.9500
Facsimile: 212.355.9592
Hank Bates (State Bar No. 167688)
hbates@cbplaw.com
Allen Carney
acarney@cbplaw.com
David Slade
dslade@cbplaw.com
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: 501.312.8500
Facsimile: 501.312.8505
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REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH
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Jeremy A. Lieberman
Lesley F. Portnoy
info@pomlaw.com
POMERANTZ, LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: 212.661.1100
Facsimile: 212.661.8665
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Patrick V. Dahlstrom
pdahlstrom@pomlaw.com
POMERANTZ, LLP
10 S. La Salle Street, Suite 3505
Chicago, IL 60603
Telephone: 312.377.1181
Facsimile: 312.377.1184
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Jon Tostrud (State Bar No. 199502)
jtostrud@tostrudlaw.com
TOSTRUD LAW GROUP, PC
1925 Century Park East, Suite 2125
Los Angeles, CA 90067
Telephone: 310.278.2600
Facsimile: 310.278.2640
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Attorneys for Plaintiffs and the Proposed Class
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REPLY ISO MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH
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