Gellis v. Verizon Communications, Inc. et al, No. 3:2007cv03679 - Document 64 (N.D. Cal. 2008)

Court Description: ORDER GRANTING 62 Stipulation RE: FILING THIRD AMENDED COMPLAINT AND REVISING PRETRIAL SCHEDULING ORDER. Signed by Judge Jeffrey S. White on 12/2/08. (jjo, COURT STAFF) (Filed on 12/2/2008)
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Gellis v. Verizon Communications, Inc. et al 1 2 3 4 5 6 7 8 9 10 11 12 Doc. 64 Steve W. Berman Jeff D. Friedman (173886) Shana E. Scarlett (217895) HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, California 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 steve@hbsslaw.com jefff@hbsslaw.com shanas@hbsslaw.com Mark Chavez (90858) Nance F. Becker (99292) CHAVEZ & GERTLER LLP 42 Miller Avenue Mill Valley, CA 94941 Telephone: (415) 381-5599 Facsimile: (415) 381-5572 mark@chavezgertler.com nance@chavezgertler.com 15 Peter B. Fredman (189097) LAW OFFICES OF PETER B. FREDMAN 125 University Avenue, Suite 102 Berkeley, CA 94710 Telephone: (510) 868-2626 Facsimile: (510) 868-2627 peterfredman@sbcglobal.net 16 Attorneys for Plaintiffs and all others similarly situated 13 14 17 UNITED STATES DISTRICT COURT 18 NORTHERN DISTRICT OF CALIFORNIA 19 SAN FRANCISCO DIVISION 20 21 22 23 24 25 26 27 JOSEPH RUWE and ELIZABETH ORLANDO, ) Individually and on behalf of all others similarly ) situated, ) ) Plaintiffs, ) ) v. ) ) CELLCO PARTNERSHIP d/b/a VERIZON ) ) WIRELESS, ) Defendant. ) ) ) No. 07-cv-03679 JSW CLASS ACTION STIPULATION RE: FILING THIRD AMENDED COMPLAINT AND [PROPOSED] ORDER REVISING PRETRIAL SCHEDULING ORDER 28 010073-11 275266 V1 Dockets.Justia.com 1 2 RECITALS 1. Catherine Gellis commenced this consumer class action, in which she alleged that a 3 provision in Verizon Wireless’s terms and conditions imposing minimum $5 late fees is an 4 unlawful penalty, and sought injunctive and monetary relief. 5 2. On October 9, 2008, plaintiff amended her complaint to add Joseph Ruwe and 6 Elizabeth Orlando as additional class representatives. Ms. Gellis was subsequently dismissed as a 7 named plaintiff from the action. 8 9 3. As a result of facts obtained during investigation and discovery in this action, Mr. Ruwe and Ms. Orlando seek to file a Third Amended Complaint. Plaintiffs seek to add allegations 10 that the $15 “reconnect” fees that Verizon Wireless charges to subscribers whose service it has 11 impaired as a result of subscribers paying late is an additional illegal penalty in violation of 12 California law. Plaintiffs have asked Verizon Wireless to stipulate to the amendment. 13 4. Verizon Wireless disputes the legal basis for plaintiffs’ additional claims and plans 14 to file a motion to dismiss these additional claims. Verizon Wireless has asked for an extended 15 response period due to the press of business and the upcoming holiday season. 16 5. Discovery relating to plaintiffs’ claims and Verizon Wireless’s defenses will 17 proceed during the period Verizon Wireless challenges whether plaintiffs’ additional allegations 18 state claims for which relief may be granted. Verizon Wireless, however, shall not be required to 19 produce information that would be discoverable only with respect to plaintiffs’ claims regarding 20 Verizon Wireless’s practice of charging “reconnect” fees alleged in the amended pleading, until the 21 court rules on its dismissal motion. Plaintiffs reserve the right to contest Verizon Wireless’s 22 position through appropriate means, if they believe that the information would otherwise be 23 discoverable without respect to the additional claims. The parties agree to confer in good faith to 24 try and stage the timing of such discovery to avoid undue burden and expense on either party. 25 6. The parties also agree that with respect to depositions of witnesses who may have 26 information and knowledge pertaining to plaintiffs’ claims regarding Verizon Wireless’s practice 27 of charging “reconnect” fees alleged in the amended pleading shall be taken, if otherwise 28 appropriate, after the court rules on Verizon Wireless’s motion to dismiss, in order to avoid STIP. AND [PROP.] ORDER RE THIRD AMENDED COMPL. – 07-cv-03679 JSW 010073-11 275266 V1 -1- 1 potential duplication or inefficiency. Prior to the Court’s ruling on the motion to dismiss, Verizon 2 Wireless will determine in good faith whether any such deponent would in fact cause duplicative 3 discovery depending on the outcome of Verizon Wireless’s motion to dismiss. In the event 4 Verizon Wireless chooses not to produce such a witness (or witnesses) prior to the resolution of its 5 motion to dismiss, it agrees to produce any such witnesses no later than thirty (30) days after the 6 Court rules on Verizon Wireless’s motion to dismiss. 7 7. The parties agree that the briefing of plaintiffs’ motion for class certification should 8 await the resolution of defendant’s anticipated motion to dismiss. 9 WHEREFORE the parties stipulate and agree as follows: 10 11 STIPULATION 1. Plaintiffs may file the Third Amended Complaint, filed concurrently herewith. As 12 named plaintiff Gellis has been dismissed from the case, the action shall henceforward be known as 13 Ruwe, et al. v. Verizon Wireless. 14 2. Verizon Wireless shall have up to and including January 23, 2009, to file a motion 15 to dismiss or answer the new allegations set forth in plaintiffs’ Third Amended Complaint. 16 Plaintiffs shall have twenty-one days to file their opposition to defendant’s motion to dismiss. 17 Defendant shall have fourteen days to reply to plaintiffs’ opposition. 18 3. Both parties shall have the right to propound, and shall have the obligation to 19 respond to, discovery while the motion to dismiss is pending. Verizon Wireless, however, shall not 20 be required to produce information that would be discoverable only with respect to plaintiffs’ 21 claims regarding Verizon Wireless’s practice of charging “reconnect” fees alleged in the amended 22 pleading, until the court rules on its dismissal motion. Plaintiffs reserve the right to contest 23 Verizon Wireless’s position through appropriate means, if they believe that the information would 24 otherwise be discoverable without respect to the additional claims. The parties shall meet and 25 confer to attempt to resolve any such issues. 26 4. Depositions of witnesses who may have information and knowledge with respect to 27 plaintiffs’ claims regarding Verizon Wireless’s practice of charging “reconnect” fees alleged in the 28 amended pleading shall be taken, if otherwise appropriate, after the court rules on Verizon STIP. AND [PROP.] ORDER RE THIRD AMENDED COMPL. – 07-cv-03679 JSW 010073-11 275266 V1 -2- 1 Wireless’s motion to dismiss. Prior to the Court’s ruling on the motion to dismiss, Verizon 2 Wireless will determine in good faith whether any such deponent would in fact cause duplicative 3 discovery depending on the outcome of Verizon Wireless’s motion to dismiss. In the event 4 Verizon Wireless chooses not to produce such a witness (or witnesses) prior to the resolution of its 5 motion to dismiss, it agrees to produce any such witnesses no later than thirty (30) days after the 6 Court rules on Verizon Wireless’s motion to dismiss. 7 5. As a result of these developments, the scheduling order should be modified so as to 8 give plaintiffs sixty (60) days from the date of the court’s decision on the motion to dismiss to file 9 their motion for class certification, and other dates shall be modified consistent with that extension. 10 The existing scheduling order shall be modified as follows: 11 12 Current Schedule Proposed Schedule N/A 14 Defendant to produce deponents it delayed due to potential overlapping discovery Plaintiff to file motion for class certification 15 Defendant to file opposition to class cert. March 31, 2009 16 Plaintiff to file reply in support of class cert. April 30, 2009 Hearing on motion for class certification Fact discovery cut-off Expert discovery cut-off Dispositive motions to be filed Hearing on dispositive motions Pretrial conference Trial May 15, 2009 June 12, 2009 August 28, 2009 September 15, 2009 October 30, 2009 January 11, 2010 February 1, 2010 Decision on MTD + 30 days Decision on MTD + 60 days Plaintiffs’ motion for class cert + 60 days Defendants’ opposition to class cert + 30 days TBD October 16, 2009 November 27, 2009 December 18, 2009 January 29, 2010 April 14, 2010 May 3, 2010 STIP. AND [PROP.] ORDER RE THIRD AMENDED COMPL. -3- 13 January 30, 2009 17 18 19 20 21 22 23 24 25 26 27 28 – 07-cv-03679 JSW 010073-11 275266 V1 1 DATED: December 1, 2008. HAGENS BERMAN SOBOL SHAPIRO LLP 2 /s/ Jeff D. Friedman JEFF D. FRIEDMAN 3 4 Steve W. Berman Shana E. Scarlett (217895) HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, California 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 steve@hbsslaw.com jefff@hbsslaw.com shanas@hbsslaw.com 5 6 7 8 9 Mark Chavez (90858) Nance F. Becker (99292) CHAVEZ & GERTLER LLP 42 Miller Avenue Mill Valley, CA 94941 Telephone: (415) 388-5599 Facsimile: (415) 381-5572 mark@chavezgerler.com nance@chavezgerler.com 10 11 12 13 14 Peter Fredman (189097) LAW OFFICES OF PETER B. FREDMAN 1917 Carleton Street Berkeley, CA 94707 Telephone: (510) 486-8739 Facsimile: (510) 486-8739 peterfredman@sbcglobal.net 15 16 17 18 19 20 Attorneys for Plaintiffs DATED: December 1, 2008. MUNGER, TOLLES & OLSON LLP 21 /s/ Hojoon Hwang HOJOON HWANG 22 23 560 Mission St., 27th Floor San Francisco, CA 94105-2907 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Hojoon.Hwang@mto.com 24 25 26 Attorneys for Verizon 27 28 STIP. AND [PROP.] ORDER RE THIRD AMENDED COMPL. – 07-cv-03679 JSW 010073-11 275266 V1 -4- 1 [PROPOSED] ORDER 2 Good cause appearing, the Court hereby approves the parties’ stipulation and orders that: 3 Plaintiffs may file their Third Amended Complaint in this action, which shall hereafter be 4 known as Ruwe et al. v. Verizon Wireless. 5 Defendant may file its motion to dismiss or otherwise respond to the Third Amended 6 Complaint on or before January 23, 2009. Plaintiffs shall have until February 13, 2009 to file their 7 opposition to any motion which Defendant may file, and Defendant shall file its reply by February 8 27, 2009. The Court reserves March 20, 2009 for hearing on the motion. The time for Plaintiffs to file their motion for class certification is extended. Plaintiffs shall 9 10 have up to sixty (60) days after the Court issues its decision on the motion to dismiss to file their 11 opening brief in support of class certification. Defendant shall file its opposition to the motion 12 within sixty (60) days of the motion being filed, and Plaintiffs shall file their reply within thirty 13 (30) days thereafter. All discovery and dispositive motion deadlines, as well as the date for the pretrial 14 15 conference and the trial. The new dates are as follows: 16 17 Fact discovery cut-off: October 16, 2009 18 Expert discovery cut-off: November 27, 2009 19 Dispositive motions to be filed: December 18, 2009 20 Hearing on dispositive motions: January 29, 2010 21 Pretrial conference: April 14, 2010 22 Trial: May 3, 2010 April 19, 2010 at 2:00 p.m. May 10, 2010 at 8:00 a.m. 23 24 2 2008 Dated: December __, Hon. Jeffrey S. White U.S. District Court Judge 25 26 27 28 STIP. AND [PROP.] ORDER RE THIRD AMENDED COMPL. – 07-cv-03679 JSW 010073-11 275266 V1 -6-