Hohenberg v. Ferrero USA, Inc

Filing 21

Ex Parte MOTION for Extension of Time to File Answer by Ferrero USA, Inc. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration, # 3 Proof of Service)(Bal, Colleen) (ag).

Hohenberg v. Ferrero USA, Inc

Doc. 21 Att. 1

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KEITH E. EGGLETON, State Bar No. 159842 COLLEEN BAL, State Bar No. 167637 DALE R. BISH, State Bar No. 235390 AMIR STEINHART, State Bar No. 275037 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant FERRERO U.S.A, INC. UNITED STATES DISTRICT COURT

9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 Plaintiffs, 14 v. 15 FERRERO U.S.A., INC., a foreign corporation, 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION By this ex parte motion, defendant Ferrero U.S.A., Inc. ("Ferrero") respectfully requests that the Court postpone Ferrero's deadline to respond to the consolidated complaint (due April 6, 2011) and general discovery deadlines until venue issues in this action are resolved. On March 25, 2011, Ferrero filed a motion to transfer this consolidated action to its home state of New Jersey, where another action raising identical issues is pending in New Jersey federal court (and another in New Jersey state court). Ferrero's motion to transfer is scheduled for hearing on May
MEMORANDUM ISO EX PARTE MOTION FOR AN ORDER POSTPONING DEADLINE TO RESPOND TO CON. COMPLAINT AND STAYING DISCOVERY Case No. 11-CV-00205 H (CAB)

ATHENA HOHENBERG and LAURA RUDEBARBATO, on Behalf of Themselves and All Others Similarly Situated,

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CASE NO.: 11 CV 0205 H (CAB) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT FERRERO U.S.A,, INC.'S EX PARTE MOTION FOR AN ORDER POSTPONING DEADLINE TO RESPOND TO CONSOLIDATED COMPLAINT AND STAYING DISCOVERY Time: N/A Date: N/A Before: Hon. Marilyn L. Huff

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2, 2011. Thus, absent ex parte relief, Ferrero will be required to respond to the consolidated complaint and potentially meet a variety of additional discovery deadlines before this Court decides whether to transfer the action to the federal court in New Jersey, and before it is apparent which court should decide motions to dismiss and other disputes between the parties. Accordingly, Ferrero hereby seeks an order postponing its deadline to respond to the consolidated complaint and general discovery deadlines until after the motion to transfer is decided. BACKGROUND FACTS A. The California and New Jersey Actions Pending Against Ferrero On March 22, 2010, the Court entered an order granting Plaintiffs' motion to consolidate the two purported class actions against Ferrero before this Court, namely (1) Hohenberg v. Ferrero U.S.A., Inc., Case No. 11-cv-0205 H CAB, and (2) Rude-Barbato v. Ferrero U.S.A., Inc., Case No. 11-cv-00249 H CAB ("March 22 Order"). [Dkt. No. 11]. The March 22 Order also (1) appointed the law offices of Ronald A. Marron and the Weston Firm interim lead cocounsel, and (2) ordered Plaintiffs to file a consolidated complaint within 30 days. Id. at 4. Plaintiffs served their consolidated, amended complaint on March 23, 2011. Under Federal Rule Civil Procedure 15(a)(3), Ferrero's response to the consolidated complaint will be due on April 6, 2011, i.e., within 14 days of service. New Jersey is Ferrero U.S.A.'s home state, and there are two other actions currently pending in New Jersey that raise issues against Ferrero identical to those raised in the consolidated action before this Court.1 Thus, on March 25, 2011, Ferrero filed a motion to

The first is a purported nationwide class action filed in New Jersey federal district court, and titled Glover v. Ferrero U.S.A., Inc., Case No. 11-cv-01086 FLW DEA (filed February 27, 2011). The second is filed in New Jersey state court, and titled Metcalf v. Ferrero U.S.A., Inc., Case No. SOM-L 367-11 (Super. Ct. Somerset County, filed February 28, 2011). Ferrero seeks to consolidate the California proceedings with the New Jersey federal action in New Jersey federal court.

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MEMORANDUM ISO EX PARTE MOTION FOR AN ORDER POSTPONING DEADLINE TO RESPOND TO CON. COMPLAINT AND STAYING DISCOVERY

Case No. 11-CV-00205 H (CAB)

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transfer this consolidated California action to New Jersey federal court. If the Court decides that transfer of the consolidated action is not warranted, Ferrero will petition the Judicial Panel on Multidistrict Litigation ("MDL Panel") to consolidate pretrial proceedings among the courts. B. The Status of Discovery In the California Proceedings Since at least March 14, 2011, Ferrero has advised Plaintiffs in the California consolidated action of its intention to try to consolidate all the federal actions pending against it in New Jersey. Ferrero has in addition sought an agreement with Plaintiffs to coordinate deadlines, so that this Court, the District of New Jersey and, if necessary, the MDL Panel could decide venue, consolidation and lead plaintiff issues before Ferrero would be required to respond to the various complaints and undertake general discovery obligations in each of the actions. Plaintiffs have resisted such coordination and have instead sought to press their action forward rapidly, in an apparent effort to try to avoid transfer to New Jersey. On March 28, 2011, Ferrero's counsel met and conferred with Plaintiffs' counsel regarding a variety of scheduling and discovery issues. Ferrero agreed that it would provide responses to Plaintiffs' recently-served discovery requests specifically related to venue issues, which include a request for a Rule 30(b)(6) deposition, a set of document requests, and a set of interrogatories. Ferrero also agreed that it would seek to produce documents and provide the witness as quickly as possible, to facilitate Plaintiffs' opposition to the motion to transfer and the Court's resolution of transfer issues. However, Plaintiffs refused to grant Ferrero an extension to respond to the consolidated complaint or to postpone general discovery deadlines.2 See Declaration of Colleen Bal, ¶¶3-4. After reconsidering the issue, Plaintiffs agreed the next day to grant Ferrero a 3-week extension to respond to the consolidated complaint, but not to the extension requested by Ferrero. Plaintiffs also stated that they could agree not to serve additional
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Plaintiffs did give Defendants an initial 30-day extension to respond to the original complaints in the Hohenberg and Rude-Barbato actions, but that was before Ferrero had decided, and had advised Plaintiffs of its decision, to seek transfer to New Jersey federal court.

MEMORANDUM ISO EX PARTE MOTION FOR AN ORDER POSTPONING DEADLINE TO RESPOND TO CON. COMPLAINT AND STAYING DISCOVERY

Case No. 11-CV-00205 H (CAB)

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discovery until after the Court ruled on Ferrero's motion to transfer, but only if Ferrero refrained from filing this ex parte motion. Id., ¶5. Accordingly, without an order from the Court: Ferrero's response to the consolidated California complaint will be due on or before April 6, 2011; Ferrero's motion to transfer will be heard on May 2, 2011, the earliest date available from the court clerk consistent with the Twenty-Eight Day Rule (Civ. L.R. 7.1c); and Ferrero may be required to respond to additional, non-venue related discovery propounded by Plaintiffs. ARGUMENT By way of this motion, Ferrero respectfully requests that the Court postpone certain deadlines, to give this Court the time necessary to determine the appropriate forum for this litigation. In making this request, Ferrero is mindful of the Court's March 22 Order granting the California Plaintiffs' motion to file their consolidated amended complaint and ordering the deadline to do so, but respectfully submits that the pendency of multi-district litigation over the same subject matter weighs in favor of a modification to the current schedule that would provide the courts sufficient time to resolve these issues. Whether or not the Court ultimately agrees to transfer the current actions to New Jersey, Ferrero respectfully submits that it should not be required to press forward with litigation in the interim, including filing responses to the competing complaints and engaging in general (i.e., non-venue related), discovery with multiple plaintiffs. While Plaintiffs have offered to give Ferrero a 3-week extension to April 27, 2011 to respond to the consolidated complaint, Ferrero would still be required to file its motion to dismiss with this Court before the May 2, 2011

MEMORANDUM ISO EX PARTE MOTION FOR AN ORDER POSTPONING DEADLINE TO RESPOND TO CON. COMPLAINT AND STAYING DISCOVERY

Case No. 11-CV-00205 H (CAB)

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hearing on Ferrero's motion to transfer.3 In Ferrero's view, that sequencing is not an optimal use of resources. Once the transfer motion is decided, the Court and the parties will be in a better position to evaluate, among other things, which actions will be consolidated with one another, what the roles of the various plaintiffs' counsel will be, and which Court will decide any motions to dismiss or other disputes between the parties. Thus, Ferrero submits that certain aspects of the cases should be postponed while the Court resolves the threshold issue of transfer. Accordingly, Ferrero respectfully requests that the Court issue an order: 1. That Ferrero U.S.A.'s response to the consolidated, amended complaint be due thirty (30) days after the Court's order on Ferrero U.S.A.'s motion to transfer, and 2. That all Rule 26 requirements and discovery be postponed until after the Court's ruling on Ferrero U.S.A.'s motions to transfer, with the exception of the venue discovery already propounded by Plaintiffs in connection with Ferrero's Motion to Transfer.

In the alternative, if the Court is not inclined to base Ferrero's deadline to respond to the consolidated complaint on the Court's resolution of the motion to transfer, Ferrero respectfully requests that the Court extend its current April 6, 2011 deadline to respond to the consolidated complaint to April 27, 2011, the date proposed by Plaintiffs.

Likewise, Plaintiffs' conditional offer to refrain from serving additional, non-venue related discovery only if Ferrero agreed not to file the instant motion with the Court would require Ferrero to respond to the consolidated complaint before the motion to transfer were decided.

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MEMORANDUM ISO EX PARTE MOTION FOR AN ORDER POSTPONING DEADLINE TO RESPOND TO CON. COMPLAINT AND STAYING DISCOVERY

Case No. 11-CV-00205 H (CAB)

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Dated: March 29, 2011

Respectfully submitted, ILSON SONSINI GOODRICH & ROSATI Professional Corporation

By: /s/ Colleen Bal Colleen Bal
Attorneys for Defendant Ferrero U.S.A., Inc.

MEMORANDUM ISO EX PARTE MOTION FOR AN ORDER POSTPONING DEADLINE TO RESPOND TO CON. COMPLAINT AND STAYING DISCOVERY

Case No. 11-CV-00205 H (CAB)

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