Sanford v. Memberworks Incorporated et al

Filing 46

ORDER denying as moot 1 plaintiffs' Motion to Compel; denying as moot 38 West Corporation's Motion for Leave to file surreply. Pursuant to NECivR 72.2, a party may appeal this order by filing an "Appeal of Magistrate Judge's Order" within ten (10) days after being served with this order. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA P A T R IC IA SANFORD, ) ) P l a i n t i f f, ) ) vs. ) ) M E M B E R W O R K S INCORPORATED, ) ) Defendant, ) ) W E S T CORPORATION, ) ) M o v a n t. ) 8 :0 8 C V 3 0 2 (02CV601, S.D. Cal.) ORDER T h i s matter is before the court on the plaintiff's Motion [1] to Compel West C o rp o ra tio n 's production of documents which West has already produced in related state c o u rt litigation. The underlying litigation (the Sanford class action) originated in the S o u t h e r n District of California, Case No. 02CV601. All remaining claims in the Sanford c la s s action were dismissed by order entered September 29, 2008. Memberworks, Incorporated and West Corporation have filed copies of the dispositive o rd e r in response to the court's October 3, 2008 scheduling order, and they agree that the M o tio n to Compel should be denied as moot. (See Docs. 41, 42, 43 & 44). The plaintiffs f ile d a status report (Doc. 45) in which they contend the matter is not moot because the d is tric t court has not entered the final judgment in the Sanford class action and they intend to file a motion for reconsideration. H a v in g considered all of the parties' written arguments on the merits and on the q u e stio n of mootness, the court finds that the Motion to Compel should be denied as moot.1 I T IS ORDERED: 1 . P lain tiff s' Motion to Compel (Doc. 1) is denied as moot, without prejudice to re a ss e rtio n if the dispositive order filed September 29, 2008 in the Sanford class action is v a c ate d or set aside. 2. a s moot. W e st Corporation's motion for leave to file a surreply brief (Doc. 38) is denied Pursuant to NECivR 72.2, a party may appeal this order by filing an "Appeal of M a g istra te Judge's Order" within ten (10) days after being served with the order. The party sh a ll specifically state the order or portion thereof appealed from and the basis of the appeal. T h e appealing party shall file contemporaneously with the statement of appeal a brief setting fo rth the party's arguments that the magistrate judge's order is clearly erroneous or contrary to law. See NECivR 72.2(d). D A T E D October 14, 2008. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge If the matter were not rendered moot by the dismissal of all the plaintiffs' claims, it is likely that the motion would have been denied on its merits. -2 - 1

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