Campbell et al v. Facebook Inc.

Filing 96

MOTION to Dismiss Claims and Withdraw David Shadpour as Putative Class Representative filed by Matthew Campbell, Michael Hurley, David Shadpour. Motion Hearing set for 9/9/2015 09:00 AM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. Responses due by 7/27/2015. Replies due by 8/3/2015. (Attachments: # 1 Proposed Order)(Sobol, Michael) (Filed on 7/13/2015)

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Michael W. Sobol (State Bar No. 194857)
[e-mail]
Melissa Gardner (State Bar No. 289096)
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: 415.956.1008
Rachel Geman
[e-mail]
Nicholas Diamand
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: [phone]
Facsimile: 212.355.9592

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Attorneys for Plaintiffs and the Proposed Class

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Patrick V. Dahlstrom
[e-mail]
POMERANTZ, LLP
10 S. La Salle Street, Suite 3505
Chicago, Illinois 60603
Telephone: [phone]
Facsimile: 312.377.1184

Hank Bates (State Bar No. 167688)
[e-mail]
Allen Carney
[e-mail]
David Slade
[e-mail]
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: [phone]
Facsimile: 501.312.8505

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Jeremy A. Lieberman
Lesley F. Portnoy
[e-mail]
POMERANTZ, LLP
600 Third Avenue, 20th Floor
New York, New York 10016
Telephone: [phone]
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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v.

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FACEBOOK, INC.,

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Case No. C 13-05996 PJH
PLAINTIFFS’ MOTION TO WITHDRAW
PUTATIVE CLASS REPRESENTATIVE
AND DISMISS CLAIMS WITHOUT
PREJUDICE
Date:
Time:
Crtrm:
Judge:

September 9, 2015
9:00 a.m.
3, Third Floor
Honorable Phyllis J. Hamilton

Defendant.

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MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH

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TO ALL PARTIES AND THEIR COUNSEL OF RECORD, PLEASE TAKE NOTICE

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that on September 9, 2015, in Courtroom 3, Third Floor of the District Court for the Northern

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District of California, Oakland Division, pursuant to Federal Rules of Civil Procedure 21 and

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41(a)(2) Plaintiffs’ Interim Class Counsel will, and hereby do, move to dismiss plaintiff David

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Shadpour as a party to this litigation and to withdraw his claims without prejudice to his rights as

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an absent member of the putative Class.

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I.

STATEMENT OF ISSUES TO BE DECIDED

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Should this Court, in the exercise of its discretion under Federal Rules of Civil Procedure

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21 and 41(a)(2) permit putative class representative David Shadpour to be dismissed as a party to

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this litigation and to withdraw his claims without prejudice or conditions?

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II.

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INTRODUCTION
Plaintiffs’ interim class counsel seek an Order pursuant to Federal Rules of Civil

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Procedure 21 and/or 41(a)(2) to dismiss Mr. Shadpour as a party to this action, and relieve him of

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any outstanding discovery obligations. Mr. Shadpour no longer seeks to carry on the duties and

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obligations as a class representative. The two original plaintiffs in this action (Matthew Campbell

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and Michael Hurley) remain willing and able to zealously represent the class. The Class will not

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be prejudiced in any way by dismissal of Mr. Shadpour’s individual claims.

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III.

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BACKGROUND AND PROCEDURAL HISTORY
On December 30, 2013, Matthew Campbell and Michael Hurley filed a putative class

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action (the “Campbell Action”) alleging that Defendant, Facebook, Inc., had unlawfully

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intercepted the content of Facebook users’ private messages without their consent. (Dkt. 1).

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Shortly thereafter, on January 21, 2014, David Shadpour initiated a separate putative class action,

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Shadpour v. Facebook, Inc., No. 5:14-cv-00307-PSG, (the “Shadpour Action”) which was

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predicated upon substantially similar facts and alleged substantially similar claims.

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On January 29, 2014, Facebook filed a Motion to Relate the Shadpour Action to the

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Campbell Action (Dkt. 14), which the Court granted on February 3, 2014. (Dkt. 15). Thereafter,

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on April 15, 2014, the Court related the Campbell and the Shadpour Actions. (Dkt. 24). On

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April 25, 2014, plaintiffs jointly filed the operative Consolidated Amended Complaint (“CAC”).
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MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH

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(Dkt. 25). With the exception of Mr. Shadpour’s residence – in Los Angeles, California – all the

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allegations in the CAC are identical as to all plaintiffs.

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On June 17, 2014, Facebook filed a Motion to Dismiss the CAC. (Dkt. 29). Neither party’s

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briefing on that Motion made any argument directed independently to Mr. Shadpour, nor was

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such an argument advanced at the hearing before the Court on October 1, 2014. (Dkt. 29-35, 45).

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The Court’s December 23, 2014 Order granting in part and denying in part Facebook’s Motion

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did not discuss Mr. Shadpour separately from the other plaintiffs in any way. (Dkt. 43).

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The parties exchanged their first discovery requests on January 26, 2015. (Dkt. 89, at 1).

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Plaintiffs have served their discovery jointly. (Id.). Similarly, Facebook’s discovery requests to

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each plaintiff have been identical, except that Facebook asked each plaintiff different contention

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interrogatories seeking “all facts” supportive of specific allegations in the CAC – allegations

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made on behalf of all plaintiffs. (See Dkt. 77, Exs. A-C).

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In its Answer to the CAC filed on February 6, 2014, all of Facebook’s substantive answers
were identical as to all of the plaintiffs. (Dkt. 53).
Similarly, in the parties’ March 5, 2015 Joint Case Management Statement, Facebook

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asserted that the “dispositive defenses” of express and implied consent would dispose of the

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claims of “Facebook users” generally and, for example, “the people who use Facebook were

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aware that the URLs in their messages were being processed—and consented to that processing.”

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(Dkt. 60, at 4-5). Facebook’s claims that class certification will be inappropriate due to

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individualized issues of whether Class Members consented to the challenged conduct, (id., at 5-6)

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do not address Mr. Shadpour, in particular.

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On March 17, 2015, plaintiffs’ counsel informed Facebook’s counsel that Mr. Shadpour

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intended to withdraw from the litigation and asked if Facebook would stipulate to his dismissal.

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(Dkt. 89, at 1, 4). Facebook’s counsel responded that they would confer with their client, and that

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they were disinclined to stipulate to Mr. Shadpour’s dismissal unless Mr. Shadpour responded to

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all outstanding discovery and made himself available for a deposition, although no deposition had

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yet been noticed. Id.

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MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH

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A month later, on April 16, 2015, Facebook noticed Mr. Shadpour’s deposition. Id. It did

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so without providing further information regarding Facebook’s position. No date for such a

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deposition has been set. Plaintiffs’ counsel thereafter sent a written stipulation to Facebook

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proposing to drop Mr. Shadpour as a party under Fed. R. Civ. P. 21 and to dismiss his claims

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without prejudice under Fed. R. Civ. P. 41(a)(2). (See Dkt. 89, at 1). On May 5, 2015,

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Facebook’s counsel responded that Facebook would not stipulate to the requested dismissal

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unless and until Mr. Shadpour completed all outstanding discovery that Facebook had served,

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including its Requests for Production, Interrogatories, and Notice of Deposition. Id.

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Following an in-person meet and confer, the parties brought these issues before Magistrate

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Judge Maria-Elena through a joint letter brief dated June 18, 2015 (Dkt. 89). On July 2, Judge

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James held that these matters are beyond the scope of the discovery referral in this case, and

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denied the parties’ respective requests without prejudice to the filing of the instant motion. (Dkt.

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94). During a meet and confer on July 9, Facebook’s counsel confirmed that its position with

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respect to Mr. Shadpour’s dismissal is unchanged.

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Plaintiffs’ interim class counsel therefore bring this motion requesting that the Court

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exercise its discretion to dismiss Mr. Shadpour as a party from this consolidated litigation and to

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permit him to withdraw his claims as a class representative against Facebook, and to proceed as

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an absent member of the putative Class.

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IV.

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ARGUMENT
Federal Rule of Civil Procedure 21 provides that “[o]n motion or on its own, the court

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may at any time, on just terms, add or drop a party.” Rule 41(a)(2) provides that after an

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opposing party has served an answer, “an action may be dismissed at the plaintiff’s request only

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by court order, on terms that the court considers proper.”

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“When considering whether to permit a named plaintiff to withdraw from a class action,

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courts have observed that ‘[a]bsent a good reason . . . a plaintiff should not be compelled to

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litigate if [he] doesn’t wish to.’” Roberts v. Electrolux Home Prods., Inc., No. 12-1644, 2013 WL

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4239050, at *2 (C.D. Cal. Aug. 14, 2013) (citation omitted); see also U.S. ex rel. Meyer v.

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Horizon Health Corp., No. 00-1303, 2006 WL 1490216, at *1 (N.D. Cal. May 25, 2006)
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MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH

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(Armstrong, J.); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998) (stating that

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potential class representatives must be able to “vigorously pursue” claims on behalf of the class.)

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Accordingly, “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.” Waller v. Fin. Corp. of Am.,

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828 F.2d 579, 583 (9th Cir. 1987).

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Facebook would suffer no “plain legal prejudice” if it is not allowed to condition

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Mr. Shadpour’s withdrawal on his deposition and additional discovery, for two principal reasons.
First, this motion comes early in the proceedings.1 No substantial resources have been

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expended specific to Mr. Shadpour, as his claims merely mirror those brought by the original

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plaintiffs. Mr. Shadpour has not produced any documents. Facebook has not disputed that its

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preparation for Mr. Shadpour’s deposition (if any), which Facebook noticed a month after

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learning he intended to withdraw, did not also apply to the June 19 Campbell and July 9 Hurley

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depositions. (Dkt. 89). Moreover, Mr. Shadpour has not propounded any unique discovery on

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Facebook; instead, all discovery has been propounded by plaintiffs collectively. See James ex rel.

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James Ambrose Johnson, Jr. v. UMG Recordings, Inc., No. 11-1613, 2012 WL 4859069, at *2

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(N.D. Cal. Oct. 11, 2012) (Illston, J.) (granting substitution of named plaintiffs, finding “the

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nature of the litigation and the course of defense will not be substantially altered, and [defendant]

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will not suffer substantial prejudice” where proposed substitute plaintiffs and claims were

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substantially similar); c.f., McConnell v. Red Robin Int’l, Inc., No. 11-03026, 2012 WL 1357616,

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at *3 (N.D. Cal. Apr. 17, 2012) (Alsup, J.) (“It is not clear . . . how the addition of [a new named

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plaintiff], absent additional claims, will so alter defendant's preparation for this case as to result in

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undue prejudice.”).

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Second, no allegation unique to Mr. Shadpour forms any fundamental part of the record.

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See Dkt. 25 (CAC); Dkt. 29-36; 43; 45 (Briefing, Hearing, and Order on Motion to Dismiss); Dkt.

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53 (Answer). The allegations in Mr. Shadpour’s tag-along complaint mirrored those in the

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Pursuant to the operative Case Management Order, Plaintiffs’ Motion for Class Certification
and Facebook’s Motion for Summary Judgment are due on or before October 14, 2015; and the
hearing on those motions is scheduled for February 17, 2016. (Dkt. 62). Trial has not yet been
scheduled.
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MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH

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original complaint filed by Mr. Campbell and Mr. Hurley. Although Facebook argued in the

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parties’ briefing before Judge James that Mr. Shadpour’s testimony will be relevant to class

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certification and the merits, in the parties’ March 5, 2015 Joint Case Management Statement,

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Facebook asserted that its “dispositive defenses” would dispose of the claims of “Facebook users”

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generally and, for example, “the people who use Facebook were aware that the URLs in their

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messages were being processed—and consented to that processing.” (Dkt. 60 at 4-5). Any critical

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testimony, discovery responses, or documents that Mr. Shadpour might possess are equally

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available from the other Plaintiffs.

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Unconditional dismissals are routinely granted under such facts. See Roberts, 2013 WL

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4239050, at *2 (declining to require discovery as a condition of dismissal where withdrawal was

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sought before summary judgment or class certification, minimal resources were expended

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preparing for the plaintiffs’ depositions, and another plaintiff continued to represent the class);

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Meyer, 2006 WL 1490216, at *1 (declining to require discovery as condition of dismissal,

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holding “[t]o the extent that [defendant] is concerned about its access to certain documents or

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information in [withdrawing plaintiff’s] possession, this can be addressed, as appropriate and

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necessary, through third-party discovery.”); In re Urethane Antitrust Litig., No. 04-1616, 2006

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WL 8096533, at *2 (D. Kan. June 9, 2006) (denying motion to compel withdrawing plaintiff’s

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deposition, in part, because “[t]he information Defendants need regarding class certification

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issues may be obtained from the remaining class representatives.”).

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In support of Facebook’s contention that it is entitled to demand Mr. Shadpour’s

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deposition testimony and further discovery in spite of early notice of Mr. Shadpour’s intention to

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withdraw from the case, Facebook has relied on Dysthe v. Basic Research, LLC, 273 F.R.D. 625,

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(C.D. Cal. 2011); Fraley v. Facebook, Inc., No. 11-1726, 2012 WL 555071 (N.D. Cal. Feb. 21,

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2012) (Grewal, M.J.); and Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., No. 09-

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02757, 2011 WL 5865059 (D. Colo. Nov. 22, 2011). However, upon examination of the same

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cases in the context of a plaintiff’s motion to withdraw, a court in the Central District expressly

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held that those cases “do not stand for the proposition that . . . withdrawal can be conditioned

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MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH

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upon the plaintiff’s willingness to sit for a deposition.” Roberts, 2013 WL 4239050, at *2

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(permitting named plaintiffs to withdraw without sitting for depositions).

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Indeed, the holdings that Facebook contends support its position here concerned different

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facts, i.e., withdrawals sought late in the litigation by plaintiffs who possessed unique testimony

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not obtainable from other class representatives and whose participation in the proceedings formed

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an important part of the record. See e.g., Sherman v. Yahoo! Inc., 2015 WL 473270, at *7 (S.D.

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Cal. Feb. 5, 2015) (requiring deposition, but not additional discovery, from original named

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plaintiff likely to give unique testimony, whose deposition had been rescheduled several times,

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and who sought dismissal late in the proceedings); Dysthe 273 F.R.D. at 629 (requiring discovery

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from original named plaintiff who possessed unique information, and sought dismissal late in the

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proceedings); Fraley, 2012 WL 555071, at *3 (requiring deposition of original named plaintiff

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who sought dismissal late in the proceedings, and whose individual allegations formed important

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part of the record). By contrast, this request to dismiss Mr. Shadpour comes early, well before

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dispositive motions are scheduled; minimal resources have been expended on Mr. Shadpour

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individually, and his allegations form no unique part of the record.

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V.

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CONCLUSION
For the foregoing reasons, Plaintiffs’ interim class counsel respectfully request that this

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Court dismiss Mr. Shadpour as a party, and deny Facebook’s request that such dismissal be

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conditioned upon his deposition and or any additional discovery responses.

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MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH

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Dated: July 13, 2015

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
By:

/s/ Michael W. Sobol
Michael W. Sobol

Michael W. Sobol (State Bar No. 194857)
[e-mail]
Melissa Gardner (State Bar No. 289096)
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile: 415.956.1008
Rachel Geman
[e-mail]
Nicholas Diamand
[e-mail]
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: [phone]
Facsimile: 212.355.9592
Hank Bates (State Bar No. 167688)
[e-mail]
Allen Carney
[e-mail]
David Slade
[e-mail]
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: [phone]
Facsimile: 501.312.8505

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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
[e-mail]
POMERANTZ, LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: [phone]
Facsimile: 212.661.8665

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Patrick V. Dahlstrom
[e-mail]
POMERANTZ, LLP
10 S. La Salle Street, Suite 3505
Chicago, IL 60603
Telephone: [phone]
Facsimile: 312.377.1184

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Jon Tostrud (State Bar No. 199502)
[e-mail]
TOSTRUD LAW GROUP, PC
1925 Century Park East, Suite 2125
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310.278.2640

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Attorneys for Plaintiffs and the Proposed Class

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MOTION TO DISMISS CLAIMS AND WITHDRAW PUTATIVE CLASS REPRESENTATIVE; CASE NO. C 13-5996 PJH