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Martin F. Rooney, Individually and On Behalf of All Others Similarly Situated v. Sierra Pacific Windows

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


August 8, 2011

MARTIN F. ROONEY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFF,
v.
SIERRA PACIFIC WINDOWS, A DIVISION OF SIERRA PACIFIC INDUSTRIES, A CALIFORNIA CORPORATION, DEFENDANT.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER CONTINUING BRIEFING SCHEDULE AND HEARING DATE ON MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION FOR CLASS CERTIFICATION

This Order disposes of both parties' pending motions to alter the case schedule. See Dkt. Nos. 68 & 70. For the reasons discussed below, the Court grants both motions in part.

I. Background

Defendant Sierra Pacific Windows filed a Motion for Judgment on the Pleadings on July 7, 2011. Dkt. No. 64 ("Def.'s Mot. J. Pleadings"); see also Dkt. No. 73 ("Def.'s Reply"). Defendant 24 argues that Plaintiffs' claims are time barred and that the named plaintiff, Mr. Rooney, has not 25 suffered the requisite injury for this Court to have jurisdiction over this matter under Article III of 26 the U.S. Constitution. See Dkt. No. 64 at 2. The hearing on Defendant's motion for judgment on 27 the pleadings is currently scheduled for August 11, 2011, at 1:30 p.m.

On July 21, 2011, Plaintiffs filed a Motion to Modify Scheduling Order and for Leave to File Second Amended Complaint, in lieu of filing an opposition to Defendant's motion for 3 judgment on the pleadings.*fn1 Dkt. No. 68 ("Pls.' Mot. Leave to Am."). Plaintiffs seek leave to 4 modify the class definition, substitute named class representatives, and alter their theory of 5 liability, and ask the Court to dismiss Defendant's motion as moot. Id. In the event that the Court 6 is unwilling to grant Plaintiffs leave to amend, Plaintiffs' motion alternatively asks the Court to 7 postpone the hearing scheduled for August 11, 2011, to allow Plaintiffs time to oppose Defendant's 8 motion. Id. at 13. Also on July 21, 2011, Plaintiffs filed a Motion to Certify Class, based on the 9 class definitions in the proposed second amended complaint. Dkt. No. 69 ("Pls.' Class Cert. 10 Mot."). Plaintiffs' motion for leave to amend served as their opposition to Defendant's motion for judgment on the pleadings, and the Defendant filed a reply on July 28, 2011. Dkt. No. 73.

On July 27, 2011, Defendant moved to continue the briefing schedule and hearing date on Plaintiffs' motion for class certification. Dkt. No. 70. Defendant argues that the proposed second 14 amended complaint altered the class definition and changed the theory of liability. Without 15 knowing whether the Court would grant Plaintiffs leave to amend and which putative class 16 definition would be operative, Defendant would not be in a position to oppose Plaintiff's motion 17 properly. Id. at 2-3. Defendant proposes the following new schedule: Defendant's opposition to 18

Plaintiffs' motion for class certification to be filed on September 15, 2011; Plaintiffs' reply to be 19 filed on September 22, 2011; and the hearing on the motion to be rescheduled to September 29, 2011. Id. at 4. Plaintiffs' opposition to Defendant's motion to continue the briefing schedule is 21 due August 10, 2011. Defendant contends that Plaintiffs' proposed second amended complaint 22 fails to cure the statute of limitations and standing defects identified in Defendant's motion for 23 judgment on the pleadings. Id. On August 4, 2011, Defendant also filed an Opposition to Plaintiffs' Motion for Leave to Amend, Dkt. No. 74, and an Opposition to Plaintiffs' Motion to Certify Class. Dkt. No. 76.

The hearing on Plaintiffs' motions for leave to amend and for class certification, Dkt Nos. 68 & 70, is scheduled for September 1, 2011, at 1:30 p.m.

II. Discussion

As a preliminary matter, the Court notes that the proper course would have been for Plaintiffs to file an opposition to Defendant's motion for judgment on the pleadings and separately 8 to file a motion for leave to amend the pleadings. Defendant is correct to note that merely filing a 9 motion for leave to amend does not moot Defendant's motion for judgment on the pleadings, and 10 that if Mr. Rooney wished to modify the deadline to file his opposition or to move the hearing date, he should have filed a motion to change time under Local Rule 6-3. Reply 6. However, mindful that the motion for judgment on the pleadings could dispose of all of Plaintiffs' claims, the Court will allow Plaintiffs, in this one instance, leave to file an opposition to Defendant's motion for 14 judgment on the pleadings. The parties are warned that future failures to meet a filing deadline will 15 result in waiver of the right to oppose or reply.

Therefore, the hearing scheduled for August 11, 2011, is continued to September 1, 2011, at 1:30 p.m. The Court will hear Defendant's motion for judgment on the pleadings concurrently 18 with Plaintiffs' motion for leave to amend on September 1. Plaintiffs shall file their opposition to Defendant's motion for judgment on the pleadings by August 15, 2011. Plaintiffs are instructed to 20 respond to Defendant's statute of limitations and standing arguments as they pertain to both the 21 first amended complaint and Plaintiffs' proposed second amended complaint. Defendant has until August 22 to file a reply.

The Court finds that in this case Plaintiffs' motion for leave to amend and Defendant's motion for judgment on the pleadings are threshold matters that need to be decided before any 25 motion for class certification can be decided. Furthermore, the Court is persuaded by Defendant's 26 arguments that Defendant requires additional discovery and time to oppose Plaintiffs' motion for 27 class certification. Dkt. No. 70 at 3.

Therefore, the hearing on Plaintiffs' class certification motion scheduled for September 1, 2011, is continued to September 29, 2011, at 1:30 p.m. Defendant's motion to continue the 3 briefing schedule was rendered moot in part because Defendant filed its opposition to Plaintiff's 4 motion for class certification on August 4, 2011. Plaintiffs' deadline, pursuant to Local Rule 7-5 3(c), to serve and file replies in support of their motion for class certification and their motion for 6 leave to amend is unaltered by this Order and remains August 11, 2011.

In light of the uncertainties in the case and Defendant's need for discovery on Plaintiffs' new allegations, the Court grants Defendant leave until September 15, 2011 to supplement its 9 opposition to Plaintiffs' motion for class certification filed on August 4, 2011, to respond to any 10 order the Court issues on Plaintiffs' motion for leave to amend and Defendant's motion for judgment on the pleadings, as well as to reflect any additional information learned through iscovery since August 4, 2011. Defendant's supplemental opposition may not exceed 8 pages.

Plaintiffs have until September 22, 2011, to reply to Defendant's supplemental opposition.

Plaintiffs' reply may not exceed 4 pages and is limited only to rebutting Defendant's supplemental 15 opposition.

IT IS SO ORDERED.


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