Harris v. Blockbuster Inc

Filing 14

REPORT of Rule 26(f) Planning Meeting. (tln)

Harris v. Blockbuster Inc

Doc. 14

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION CATHRYN ELAINE HARRIS, MARIO HERRERA, and MARYAM HOSSEINY on behalf o f themselves and all others similarly situated, Plaint iffs, v. BLOCKBUSTER INC. Defendant. § § § § § § § § § § § §

CIVIL ACTION NO. 2:08-cv-00155

JOINT CONFERENCE REPORT In accordance with Rule 26 o f the Federal Rules of Civil Procedure and this Court's Order to Conduct Rule 26(f) Conference, Plaint iffs Cathryn Elaine Harris, Mario Herrera, and Maryam Hosseiny ("Plaint iffs") and Defendant Blockbuster Inc. ("Defendant") respectfully submit the fo llowing Joint Conference Report. 1. A factual and legal description of the case which also sets forth the elements of each cause of action and each defense;

Plaint iffs' claims arise fro m their use o f Blockbuster's website and their participat ion in Blockbuster Online, which is an Internet subscriptio n service through which customers can rent and purchase DVDs. Plaint iffs' claims also relate to their accounts with Facebook. Facebook is a social networking website that allows users (like Plaint iffs) to communicate with friends, upload photographs, jo in networks, and operate a variet y of user applicat ions. Wit h a Facebook account, Facebook users have control over how they share their own informat ion and who can see it. All o f the Plaint iffs maint ain Facebook accounts. They assert in this lawsuit that

Defendant vio lated the Video Privacy Protection Act ("VPPA"), 18 U.S.C. § 2710, by disclosing "personally ident ifiable informat ion" (including their own) to Facebook and to others.

1
Dockets.Justia.com

Defendant disputes these allegat ions.

Defendant maintains that, among other things, the

disclosures of which Plaint iffs co mplain are actually made to the consumers through their Facebook account. According to Defendant, nothing in the VPPA prohibit s Defendant fro m communicat ing wit h it s members through Facebook, and Defendant cannot be liable for its members' decisio ns to further share informat ion wit h their Facebook friends. Plaint iffs dispute Defendant's characterizaio n of how and to whom this communicat ion occurs. In fact, Plaint iffs maintain that the alleged illegal disclosures are made direct ly to Facebook, a third party without legal authorizat ion to receive said co mmunicat ions. Plaint iffs bring one cause of act ion, under the VPPA, 18 U.S.C. § 2710(b). Plaint iffs plead that Defendant: (1) is a "Videotape Service Provider, (2) acted knowingly, and (3) disclosed "personally ident ifiable informat ion" in vio lat ion o f the VPPA, wit hout the express, written consent of the consumer obtained at the t ime of said illegal disclosure. Defendant denies these allegations and asserts defenses, including but not limited to: (1) Plaint iffs' claims are barred by the provisio ns of 18 U.S.C. § 2710(b)(2)(A) because each alleged disclosure o f informat ion, if any, was made to the consumer, (2) Plaint iffs' claims are barred by the provisio ns of 18 U.S.C. § 2710(b)(2)(E) because each alleged disclo sure of informat ion, if any, was made in the ordinary course of business, (3) Plaint iffs' claims are barred because the alleged disclosure, if any, did not contain personally ident ifiable informat ion, and (4) Plaint iffs' claims are barred by the provisions of 18 U.S.C. § 2710(b)(2)(B) because each alleged disclosure of informat ion, if any, was made with Plaint iff's consent.

2

2.

The date the Rule 26(f) conference was held, the names of those persons who were in attendance, and the parties they represented;

The Rule 26(f) conference was held on July 8, 2008. Tho mas M. Corea and Jeremy R. Wilson o f The Corea Firm, PLLC attended on behalf of Plaint iffs. Mike Raiff and Frank Brame of Vinson & Elkins attended on behalf o f Defendant. 3. None. 4. An agreed discovery/case management plan, if an agreement can be reached, (a sample Scheduling Order form is enclosed, and the parties are to submit a completed Scheduling Order with their joint conference report), which includes proposed deadlines for the following: A list of any cases that are related to this case and that are pending in any state or federal court with the case numbers and court;

Plaint iff's proposal Defendant is seeking to postpone the entry o f a scheduling order in this case on the basis of a purported arbitration agreement allegedly entered into between the parties. Plaint iffs

contend, however, that this purported agreement is an invalid, unconscio nable, and an unenforceable adhesio n contract under applicable co mmo n law, various state's laws, and statutory constructions, for at least the fo llowing reasons: The purported agreement is what is known as a "click wrap" agreement, which means that Plaint iffs never actually signed nor were presented wit h any written agreement to sign, but rather agreed only generally (by checking a box on their co mputer screen) to Defendant's terms and condit ions Buried wit hin those terms and condit io ns lay the purported arbitration agreement, which was not conspicuously disclo sed to Plaint iffs. Furthermore, the alleged agreement purports to require Plaint iffs to proceed wit h individual arbitration, seeking to waive the use o f any class proceeding to address Defendant's vio lat ions of any law. The purported agreement is also one-sided in its protections, flowing only to the benefit of Defendant. The purported arbitration agreement was also unsigned and

3

submitted to the Plaint iffs on a take it or leave it basis, by an ent it y with far superior bargaining power. For these reasons, which will be more fully set out in subsequent briefing of this issue, Plaint iffs maintain that further delay should be avoided by entering a scheduling order now and allowing Defendant to seek arbitration within the context of that scheduling order. Thus, Plaint iffs ask the Court to enter the attached proposed scheduling order, Exhibit A, and to allow Defendant to move to compel arbitration. Defendant's proposal. Defendant believes that this case is subject to a binding arbitration agreement and should proceed in an individual arbitration. Accordingly, Defendant will be filing a mot ion to compe l individual arbitration. Because the part ies agreed to individually arbitrate this matter rather than proceed in federal court, Blockbuster believes it is premature and inappropriate to proceed wit h discovery. In addit io n, Defendant has filed a mot ion to transfer venue to the Northern District of Texas because all part ies reside in the Dallas Divisio n of the Northern District. In light of the arbitrat ion agreement and the pending motion to transfer venue, Defendant respectfully requests that the Court address the thresho ld arbitrat ion and venue issues before entering a scheduling order. As courts have recognized, the benefits of arbitration are eroded and so met imes lo st if the parties are forced to proceed in a judicial forum during the pendency o f a motion to compel arbitration. That is particularly true where, as here, the enforcement of Blockbuster's individual arbitrat ion agreement affects not only the forum of the dispute (arbitration versus court) but also the form of it (individual versus potential class proceedings). If the mot ion to compel arbitration is granted, the case should proceed in arbitration and no case management plan or scheduling order will be required in this judicial proceeding. Defendant

4

respectfully proposes that if the motion is denied, the parties should submit a jo int case management plan within 30 days after the Court's ruling on the arbitration motion. Alternat ively, Defendant proposes that the Court enter the Scheduling Order attached as Exhibit A. 5. A suggested date for the final pre-trial conference (see enclosed list of the court's available dates) at which time the trial will be scheduled;

October 5, 2009.

6.

The expected length of trial;

10-15 trial days.

7. No.

Whether the parties jointly agree to trial before a magistrate judge;

8.

Whether a jury demand has been made; and

Plaint iffs have demanded a jury trial.

9. No.

Whether the parties request a conference with the court pursuant to FED. R. CIV. P. 16(b) before entry of the Scheduling Order.

5

/s/Jeremy Wilson w/ permission Thomas M. Corea State Bar No. 24037906 Jeremy Reade Wilso n State Bar No. 24037722 Preston J. Dugas III State Bar No. 24050189 THE COREA FIRM, PLLC 325 North St. Paul, Suite 4150 Dallas, TX 75201 Telephone: [phone] Facsimile: 214.953.3901 ATTORNEYS FOR PLAINTIFFS

/s/ Michael Raiff / Michael L. Raiff State Bar No. 00784803 Frank C. Brame State Bar No. 24031874 VINSON & ELKINS L.L.P. Trammell Crow Center 2001 Ross Avenue, Suite 3700 Dallas, TX 75201-2975 Telephone: [phone] Facsimile: 214.220.7716 ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy o f the foregoing Jo int Conference Report was served by ECF on the 30th day of July, 2008 on counsel o f record for Plaint iffs.

/s/ Frank C. Brame Frank C. Brame

Dallas 1402791v.1

6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION CATHRYN ELAINE HARRIS, MARIO HERRERA, and MARYAM HOSSEINY on behalf o f themselves and all others similarly situated, Plaint iffs, v. BLOCKBUSTER INC. Defendant. § § § § § § § § § § § §

CIVIL ACTION NO. 2:08-cv-00155

PROPOSED SCHEDULING ORDER After reviewing the report from the parties required by FED. R. CIV. P. 26(f), the court hereby enters the fo llowing Scheduling Order pursuant to this court's Local Rule CV-16 and FED. R. CIV. P. 16: (1) Other parties shall be jo ined by [PLAINTIFFS' PROPOSAL: March 1, 2009. DEFENDANT'S PROPOSAL: September 15, 2008.] (A motion for leave to add parties is not necessary provided part ies are added by this date, otherwise, leave o f court is required. The date to add parties should be at least 60 days before the deadline for filing motions listed in (3) below.) The parties shall make disclosures pursuant to FED R. CIV. P. 26(a)(1) by August 22, 2008. Amended pleadings shall be filed by [PLAINTIFFS' PROPOSAL: March 1, 2009. DEFENDANT'S PROPOSAL: September 15, 2008.]. (A motion for leave to amend is not necessary if filed before this date; however, this date should be at least 30 days before the deadline for filing motions listed in (3) below.) All mot ions to transfer, motions to remand, motions to dismiss, mot ions for summary judgment, or other disposit ive motions, and Daubert motions shall be filed by August 3, 2009. (In order for the court to make a ruling on these motions before the final pre-trial conference , this date should be at least 60 days before the final pre-trial conference.). Motions for class certificat ion shall be filed by August 3, 2009. Disclosure of expert testimo ny pursuant to FED. R. CIV. P. 26(a)(2) and Local Rule CV-26(b) shall be made by the plaint iff by March 2, 2009, and by the defendant by April 16, 2009. Thereafter, each party shall have until August 3,

(2)

(3)

( 4)

2009, to object to any other party's expert witnesses. Such object ions shall be made by a motion to strike or limit expert testimo ny and shall be acco mpanied by a copy of the expert's report in order to provide the court with all of the informat ion necessary to make a ruling on any objection. ( 5) Pre-trial disclosure pursuant to FED. R. CIV. P. 26(a)(3) shall be made by the plaint iff by August 3, 2009, and by the defendant by August 21, 2009. Unless otherwise directed by the court, these disclosures must be made at least 30 days before trial. Wit hin 14 days thereafter, unless a different time is specified by the court, a party may serve and prompt ly file a list disclosing (i) any object ions to the use under Rule 32(a) of a deposit ion designated by another party under Rule 26(a)(3)(B), and (ii) any object ion, together with the grounds therefor, that may be made to the admissibilit y o f materials identified under Rule 26(a)(3)(C). Object ions not so disclosed, other than object ions under Rules 402 and 403 o f the Federal Rules of Evidence, are waived unless excused by the court for good cause. All discovery shall be co mmenced in t ime to be completed by July 2, 2009. (This date should be a date at least 90 days before the final pre-trial conference (10).) This case shall be mediated by August 3, 2009. If the parties agree on a mediator, they shall so notify the court in writ ing of the name, address, and telephone number of the mediator by July 2, 2009. Otherwise, the court will select a mediator. A Joint Final Pretrial Order prepared in accordance wit h Local Rule CV-16(b) and Jo int Proposed Jury Instructions and Verdict Form (or proposed Findings o f Fact and Conclusio ns o f Law in non-jury cases) shall be delivered by the plaint iff to the court by September 18, 2009. (This date should be a date at least 10 days before the final pre-trial conference.) In order to enable the plaint iff to prepare and deliver the Joint Final Pretrial Order and Jo int Proposed Jury Instructions and Verdict Form (or proposed Findings of Fact and Conclusio ns of Law in non-jur y cases) to the court, and to enable the defendants and any third-parties to participate in the preparation o f such documents, the plaint iff shall provide the plaint iff's share of the necessary informat ion to all other parties by September 1, 2009. Thereafter, all defendants and third-parties shall provide their share of the informat ion to plaint iff by September 14, 2009. Any mot ions in limine shall be filed by September 18, 2009. (This date should be at least 10 days prior to the final pre-trial conference date (10).) This case is set for a final pre-trial conference on October 5, 2009. (Select a date fro m the enclosed list of final pre-trial conference dates.)

( 6) (7)

( 8)

(9) (10)

OTHER LIMITATIONS. All deposit ions to be read into evidence or shown in court as part of the parties' case-in-chief shall be EDITED so as to exclude all unnecessary, repet itious,

-2-

and irrelevant testimo ny; ONLY those portions which are relevant to the issues in controvers y shall be read into evidence or shown in open court. Parties are strongly encouraged to limit total deposition t ime to no more than one hour per deposit ion to be read or shown in court.

Dallas 1437555v.1

-3-