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Mizera v. Google Doc.

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Case 5:05-cv-02885-RMW Document 30 Filed 03/29/2006 Page 1 of 3

1 KEKER & VAN NEST, LLP


DARALYN J. DURIE - #169825
2 DAVID J. SILBERT - #173128
710 Sansome Street
3 San Francisco, CA 94111-1704
Telephone: (415) 391-5400
4 Facsimile: (415) 397-7188
Email: ddurie@kvn.com
5 dsilbert@kvn.com

6 Attorneys for Defendant GOOGLE, INC.

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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ADVANCED INTERNET TECHNOLOGIES, Case No. C 05 02579 RMW
12 INC., a North Carolina corporation,
Individually and on behalf of all others Consolidated with
13 similarly situated, Case No. C 05 02885 RMW

14 Plaintiffs, DEFENDANT GOOGLE INC’S EX


PARTE MOTION TO VACATE
15 v. BRIEFING SCHEDULE PENDING
RULING ON MOTION TO STAY
16 GOOGLE, INC., a Delaware corporation, and
DOES 1 through 100, Inclusive, Judge: Hon. Ronald M. Whyte
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Defendants. Date Comp. Filed: June 24, 2005
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Trial Date: None set
19 STEVE MIZERA, an Individual, individually
and on behalf of all others similarly situated,
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Plaintiff,
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v.
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GOOGLE, INC., a Delaware corporation; and
23 DOES 1 through 100, inclusive,
24 Defendants.
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370022.01 GOOGLE’S EX PARTE MOTION TO VACATE BRIFING SCHEDULE


Case No. C 05 02579 RMW Consolidated with C 05 02885 RMW
Dockets.Justia.com
Case 5:05-cv-02885-RMW Document 30 Filed 03/29/2006 Page 2 of 3

1 Under Civil L.R. 7-10, Google moves ex parte for an order vacating the class-

2 certification briefing schedule to allow the Court to rule on Google’s pending motion to stay.

3 Google’s class-certification brief is currently due on Monday, April 3. On March 9,

4 Google filed an administrative motion under Civil L.R. 7-11 notifying the Court that Google had

5 reached a nationwide class settlement in the parallel state-court case which, once finalized, will

6 fully resolve the class claims in this case, and asking the Court to stay this action pending final

7 approval of the settlement. See Declaration of David J. Silbert (“Silbert Decl.”) Ex. A. Google

8 requested a stay under Local Rule 7-11 because it believed that doing so was procedurally

9 proper, and because a principal basis for the motion was to avoid undermining the state court’s

10 jurisdiction and wasting this Court’s and the parties’ resources by litigating class certification

11 here while a settlement is being finalized in state court—requiring relief more quickly than a

12 standard noticed motion would allow. See Silbert Decl. Exs. A and C.

13 Plaintiff AIT, however, objected to the form of the motion to stay and argued that a

14 noticed motion was required. See Silbert Decl. Ex. B. Further, the Court has not yet ruled on the

15 motion, suggesting that the Court, too, may prefer the parties to address the matter more fully,

16 including a hearing or additional briefing. To allow that to occur, the Court should vacate the

17 existing class-certification schedule. Vacating that schedule is necessary to ensure that much of

18 the harm that Google’s motion seeks to forestall does not occur while that motion is being

19 decided—namely, endangering “the delicate and transitory process of approving a [class-action]

20 settlement agreement,” see Sandpiper Vill. Condo. Ass'n v. Louisiana-Pacific Corp., 428 F.3d

21 831, 845 (9th Cir. 2005), and wasting the Court’s and the parties’ resources. Further, vacating

22 the schedule will not prejudice AIT. If the Court denies the motion to stay, it may set new dates

23 in the very near future.

24 Vacating the existing class-certification schedule is also appropriate for two additional

25 reasons. First, plaintiffs AIT and Mizera have provided written responses to Google’s document

26 requests, but they have interposed numerous objections, and have not yet produced any

27 documents. See Silbert Decl. ¶ 3. By itself, this would be a reason to adjust the schedule to

28 allow the parties to meet-and-confer over plaintiffs’ discovery responses, and if necessary,
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GOOGLE’S EX PARTE MOTION TO VACATE BRIFING SCHEDULE
370022.01 Case No. C 05 02579 RMW Consolidated with C 05 02885 RMW
Case 5:05-cv-02885-RMW Document 30 Filed 03/29/2006 Page 3 of 3

1 litigate, in order to address class-certification on a full record. Second, vacating the existing

2 schedule is appropriate as a matter of fair play. Under the Court’s original schedule, plaintiffs’

3 class-certification motion was due on February 6, 2006, but they wanted additional time, and

4 Google stipulated that they could have more time. See Silbert Decl. ¶ 4. In fact, Google

5 accommodated plaintiffs to its own detriment—Google agreed that plaintiffs could have four

6 additional weeks to file their motion, but in order to preserve the existing hearing date, agreed

7 that the date for Google to file its opposition would be moved by only two weeks, thereby

8 reducing by two weeks Google’s time to oppose the motion. See id. and Ex. D. Plaintiffs,

9 however, have refused Google’s request to vacate those dates now to allow the Court to rule on

10 the pending motion to stay. See Silbert Decl. ¶ 5.

11 Class certification is among the most important issues that a court must decide in any

12 class action, and especially so in this case, where there are significant reasons that plaintiffs’

13 proposed class cannot be certified. As set forth in Google’s motion to stay, Google believes that

14 this Court should not address class certification at all, or conduct other proceedings, while the

15 settlement in the state-court case is being finalized. At a minimum, however, the Court should

16 vacate the existing class-certification schedule to enable it to fully consider the issues presented

17 in that motion.

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19 Dated: March 29, 2006 KEKER & VAN NEST, LLP

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By: /s/ David Silbert ________
22 DAVID J. SILBERT
Attorneys for Defendant GOOGLE, INC.
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GOOGLE’S EX PARTE MOTION TO VACATE BRIFING SCHEDULE
370022.01 Case No. C 05 02579 RMW Consolidated with C 05 02885 RMW

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