McCaffrey et al v. Apple, Inc. et al
MOTION to Stay Proceedings Against Defendant Apple, Inc. by Apple, Inc. Responses due by 9/7/2010 (Westman, Daniel)
McCaffrey et al v. Apple, Inc. et al
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
KEVIN MCCAFFREY, individually and on behalf of all similarly situated,
) ) ) ) ) ) )
) ) ) ) ) )
) INC., LLC,
Civil Action No. 1:10-cv-01776-RDB
UNOPPOSED MOTION TO STAY PROCEEDINGS
AGAINST DEFENDANT APPLE INC.
Defendant, Apple Inc. ("Apple"), through counsel, moves this Court to stay all proceedings in this action against Apple pending a transfer decision by the Judicial Panel on
Multidistrict Litigation ("JPML"). A stay is necessary in this case in light of imminent filing
deadlines, including responsive pleadings, due Augus
1g,2010. This Court has clear authority
to grant stays pending decisions by the JPML, and federal courts routinely exercise that authority in the interest ofjudicial economy and avoiding prejudice to the parties. As discussed more fully
below, these factors weigh heavily in favor of a stay here.
MEMORANDUM OF LAW
The instant litigation relates to the iPhone
amobile phone, an iPod music player,
and an Internet communications device
which is manufactured and sold by Apple. Plaintiff
putative Class Action Complaint on June 30,2070, against Apple and AT&T Inc.
an Amended Class Action Complaint ("Amended Complaint") on
("AT&T"). Plaintiff filed
August 2,2010, inter alia, naming AT&T Mobility LLC ("ATTM") as a defendant. The
Amended Complaint alleges nine causes of action related to the iPhone 4.
The putative class consists of purchasers of the iPhone 4 nationwide. Fourteen similar
putative class actionst are currently pending in seven district courts in six states (together with
the instant action, the "Actions"), including nine in the Northern District of California, where Apple's corporate headquarters are located.2 On July 15,2010, plaintiff Popik filed a motion
with the Panel seeking to transfer the Actions to the Northern District of Califomia,
Francisco Division. Later the same day, plaintiffs Goodglick and Tietze also filed motions with the Panel seeking to transfer the Actions to the Northern District of California. On July 19, 2010,
rThe fourteen pending actions are as follows Aguilerav. Appte Inc et a1.., Case No. 3:10-cv-03056-RMW (N.D. Cal.); Bensbergv. Apple Inc. et al., Case No. 8:10-cv-01146-CIC (C.D. Cal.); Benvenistyv. Apple 1nc., Case No. 5:10-cv-02885-RMW (N.D. Cal.); Dydykv. Apple Inc.,Case No. 5:10-cv-02897-RMW (N.D. Cal.); Fasanov. Apple, Inc. et al.,Case No. 5:10-cv-03010-RWW Of .D. Cal.); Gionis v. Apple Inc. et al., Case No. 1:1O-cv-11110DPW (D. Mass.); Goodglick v. Apple Inc.et al., Case No. 5: l0-cv-02862-RMV/ CN.D. Cal.); Mayo v. Apple Inc., Case No. 5:10-cv-03017-RMV/ (N.D. Cal.); Milrot v. Apple, Inc. et al.,Case No. 10-CV-61130-JIC (S.D. Fla.); Ngayenv. Apple,Inc.,CaseNo.3:10-cv-00252-KMH (S.D. Tex.); Popikv. Apple Inc.et al.,Case No.5:1O-cv02928-RMW(N.D.Cal.); Purduev.Applelnc.,CaseNo.3-10-cv-00687-AAT(M.D.Tenn.);Rodgersv.Applelnc., CaseNo.5:10-cv-02916-RMW (N.D. Cal.); andTietzev. Apple Inc.,Case No.5:10-cv-02929-RMW (N.D. Cal.).
Similar actions also are pending in six California state courts, as folÌows: Balooch v. Apple Inc., Case No. 30-201000385372-CU-BT-CXC (Superior Court of Califomia (Orange Counry)); Bensbergv. Apple Inc.,Case No. 30-201000384893-CU-BT-CXC (Superior Court of California (Orange County)); Garciav. Apple, Inc.,Case No. l-10-CV176695 (Superior Court of California (Santa Clara County)); Vines v. Apple, Inc., Case No. l-1O-CV-176961 (Superior Court of California (Santa Clara County)); Hurtadov. Apple, Inc.,Case No. 37-2010-00096200-CUBCCTL (Superior Court of California (San Diego County)); and Musinv. Apple, Inc., Case No. 1-10-CV-111126 (Superior Court of California (Santa Clara County)). There is also a single case pending in Florida state court, De Rose v. Apple Inc., Case No. l0 31020 (Circuit Court of the Seventeenth Judicial Circuit (Broward County)).
plaintiff Milrot filed a motion to transfer the Actions to the Southern District of Florida. On
August 6,2010, plaintiffs Alan Benvenisty, Anthony Cologna, and Joy Bearden filed a response
in support of transfer to the Northern District of California. The motions are still pending with
the JPML. On August 16, 2010, plaintiff Mayo filed a response in support of transfer to the Northern District of California. The Panel has set the motions for hearing on September 30,
For the reasons that follow, this Court should stay the instant proceedings against Apple
pending a transfer decision by the JPML.
ARGUMENT THIS COURT SHOULD STAY THE PROCEEDINGS IN THIS ACTION TO CONSERVE JUDICIAL RESOURCES, AVOID DUPLICATIVE LITIGATION, PREVENT PREJUDICE TO THE PARTIES, AND INCREASE EFFICIENCY AND CONSISTENCY
This Court Has The Authoritv To Stav Proceedinss Pendins Before
This Court enjoys "the power inherent in every court to control disposition of the causes
on its docket with economy of time and effort for itself, for.counsel, and for litigants." Landis v
N. Am. Co.,299 U.S. 248, 254 (1936); see also Popoola v. Md.-Individual Practice Ass'n, 2001
U.S. Dist. LEXIS 6875 at *5 (D.Md. May 29,2001);Amdurv. Lizars,372F.2d 103, 106 (4th
Cir.1967). This inherent power extends to cases such
this in which one or more motions to
transfer are pending before the JPML. In such cases, courts routinely stay preliminary pretrial proceedings to conserve judicial resources, avoid duplicative litigation, and prevent prejudice to the parties. See, e.g., Rivers v. The Walt Disney Co.,980 F.Supp. 1358, 1362 (C.D. Cal. 1997);
Litchfield Co., LLC v. 8P,2010 U.S. Dist. LEXIS 70513, at *5 (D.S.C. July 14,2010). Courts
commonly stay such actions because "[a] stay pending the IJPML]'s decision can increase efficiency and consistency, particularly when the transferor court believes that a transfer order is
likely and when the pending motions raise issues likely to be raised in other cases as well."
for Complex Litigation
ç 22.35 (4th ed. 2004). In the instant case, all of these factors
weigh in favor of a stay. B.
Granting A Stay In This Action \ilill Help Conserve Judicial Resources, Avoid Duplicative Litigation. And Increase Efficiencv And Consistencv
Granting a stay in this action will prevent the parties and this Court from engaging in
substantial activity that is likely to prove unnecessary, potentially duplicative and inconsistent
with similar activity in theother iPhone 4 actions. If this Court does not stay the instant
proceedings, multiple deadlines are likely to pass, requiring significant action by the parties and unnecessarily consuming judicial resources. Such action includes the filing of responsive pleadings or motions to dismiss; discovery and related motion practice; pretrial and other case management orders; and the exchange of initial disclosures. In addition, Plaintiff will eventually
have to file a motion for class certification.
If a transfer is ordered, all such action will take place
in the consolidated MDL, conserving this Court's judicial resources, as well as those of the
courts where the other iPhone 4 actions are pending. If a stay is denied, not only
litigation activity occur in this case, but similar activity will simultaneously occur in the other
thirteen iPhone 4 actions, resulting in inefficiency and potentially inconsistent results. Such results thwart the very purposes of the MDL process. Accordingly, this action should be stayed.
Apple Would Be Preiudiced
If A Stav Is Denied
Failure to stay one of multiple actions pending a ruling on an MDL motion imposes an
unnecessary burden and hardship on the defendant. See Nielsen v. Merck
& Co., No. C07-00076
ldJJ,2007 WL 806510 at*2 (C.D. CaL.2007); Arthur-Magna, Inc. v. Del-Val Fin. Corp., CIV.A. No. 90-4378, 1991 \ML 13725 at *1 (D.N.J. 1991). If this Court refuses to grant a stay,
Apple will have to take all action necessary to meet the deadlines noted above, including
filing responsive pleadings, exchanging initial disclosures, and engaging in discovery necessary
to resolution of this action. The parties will be required to meet and confer on case management
will necessarily be discussed anew in the transferee court. As discussed below, a
transfer order is likely in this litigation. However, absent a stay, such transfer is likely to occur after some or all of the above activity has already taken place. The result is that, not only
the time, effort and resources of Apple have been expended needlessly, but Apple may find itself
in a consolidated action before a different court tl¡Írf has made rulings inconsistent with those of
this Court. This result would clearly prejudice Apple, and a stay should be granted.
No Party Will Be Preiudiced Bv The Grant Of A Stav
Conversely, grant of a stay will not prejudice any party. The Amended Complaint was
served less than two weeks ago, and there has been virtually no activity related to the merits
the action other than Plaintiff s filing a motion to dismiss (without prejudice) Linda Wrinn as a
plaintiff. Any delay resulting from a stay would be minimal, and, at this early stage of the
proceedings, would have no significant impact on the litigation.
A Transfer Order Is Likelv
Given the geographic diversity of the individual actions currently pending (California,
Florida, Maryland, Massachusetts, Texas, and Tennessee), the similarity of the claims for relief,,
and the strong potential for conflicting rulings in the various actions, there is a strong likelihood
that the JPML will transfer all of the Actions to one district. In fact, all parties agree that transfer is appropriate. It is also likely that the transfer
will not be to this District. Nine of the fourteen
Actions are currently pending in the Northem District of California, which is also where Apple is
headquartered. This District is not a central location for these actions. Accordingly, this Court should stay the instant proceedings pending a ruling by the JPML.
CERTIFICATE OF GOOD FAITH CONFERENCE
The undersigned certifies that, in a good faith effort to resolve the issues raised by this
Motion, he has discussed the matter with counsel for Plaintiff. Counsel for Plaintiff, Mr. Daniel
Sage Ware, agreed via teleconference on
August 17,2010, not to oppose this motion.
A stay of the instant proceedings against Apple is necessary to conserve judicial
resources, avoid duplicative litigation, prevent prejudice to the parties, and increase efficiency and consistency. The grant of a stay
will not prejudice any party, but the denial of a stay will
result in substantial prejudice to Apple. The necessity of a stay is amplified by the factthata transfer order by the JPML is likely, and the transfer is likely to be to a different district. For
these reasons, this Court should enter an order staying all proceedings against Apple pending a
transfer decision by the JPML.
Dated: August 18,2010.
/s/ DANIEL P. WESTMAN
Daniel P. Westman, Esq., Bar No. 15139 MORRISON & FOERSTER rrp 1650 Tysons Boulevard, Suite 400 Mclean, Virginia 22102 Telephone: (7 03) 7 60-7 7 00 Facsimile: (7 03) 7 60-7771 email@example.com
Counsel.for Defendant Apple Inc.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on August 18, 2010, a copy of the foregoing
Consent Motion To Stay Proceedings was electronically filed with the Clerk of Court using the
CM/ECF system, which will automatically send email notification of such filing to the following
attorneys of record:
Daniel Sage Ward Ward and Ward PLLC 2020 N St. NW Washington, DC 20036
Charles A. Gilman Charles A. Gilman LLC 108 V/ Timonium Rd. Ste. 203 Timonium, MD 21093
/s/ DANIEL P. \MESTMAN
Daniel P. Westman
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