The opinion of the court was delivered by: The Honorable Yvonne Gonzalez Rogers United States District Judge
LATHAM & WATKINS LLP Daniel M. Wall (Bar No. 102580) 2 Christopher S. Yates (Bar No. 161273) Sadik Huseny (Bar No. 224659) 3 505 Montgomery Street, Suite 2000 San Francisco, California 94111-6538 4 Telephone: (415) 391-0600 Facsimile: (415) 395-8095 5 Email: Dan.Wall@lw.com Email: Chris.Yates@lw.com 6 Email: Sadik.Huseny@lw.com 7 Attorneys for Defendant APPLE INC. 8 9
STIPULATION AND [PROPOSED] ORDER DISMISSING PLAINTIFFS' COMPLAINT PURSUANT TO RULE 12(b)(7) OF THE FEDERAL RULES OF CIVIL PROCEDURE
WHEREAS, Plaintiffs filed the Complaint in this action, Ward v. Apple Inc. ("Ward"), on October 19, 2012. 3
WHEREAS, on November 15, 2012, the Court ordered the instant Ward case related to In re Apple iPhone Antitrust Litigation, Case No. 11-cv-6714-YGR ("iPhone II"). 5 6 iPhone Voice and Data Services Aftermarket in Violation of Section 2 of the Sherman Act") is 7 substantially identical to Count III ("Conspiracy to Monopolize the iPhone Voice and Data 8 Complaint in iPhone II. 10
WHEREAS, the only claim for relief in Ward, Count I ("Conspiracy to Monopolize the Services Aftermarket in Violation of Section 2 of the Sherman Act") of the Consolidated 9
WHEREAS, pursuant to Rules 12(b)(7) and 12(b)(6) of the Federal Rules of Civil Procedure, Apple Inc. ("Apple") moved to dismiss Count III of the Consolidated Complaint in 12 iPhone II (ECF Nos. 36-40 and ECF No. 42, filed under seal pursuant to Order found at ECF No. 13 41), Plaintiffs opposed the motion (ECF Nos. 43-45), and Apple filed a reply brief in support of 14 its motion (ECF No. 56-57 and ECF 59, filed under seal pursuant to Order found at ECF 58). 15 16 to dismiss for failure to join a necessary party and denied, without prejudice, Apple's Rule 17
WHEREAS, the Court's July 11, 2012 Order said: "The Court finds that ATTM [AT&T Mobility LLC] is a necessary party and therefore must be joined as a party under Fed. R. Civ. P. 20
WHEREAS, notwithstanding the Court's July 11, 2012 Order, Plaintiffs in Ward have 22 not named AT&T Mobility LLC as a defendant despite alleging the identical claim. 23 24 dismiss the Ward Complaint for failure to join a necessary party, namely AT&T Mobility LLC, 25 and for failure to state a claim.
WHEREAS, on July 11, 2012, Chief Judge Ware granted Apple's Rule 12(b)(7) motion 12(b)(6) motion to dismiss for failure to state a claim (ECF No. 75). 12(b)(7)."
WHEREAS, Apple intends to move, as it did in iPhone II on the identical claim, to
WHEREAS, Plaintiffs asserted in their portion of the Amended Joint Case Management
Conference Statement in Ward (ECF No. 15): "Should the Court decide to issue the same ruling 28 in this case regarding Count I as that issued by Judge Ware in the related case concerning Count
III (see In re Apple iPhone Antitrust Litigation, No. C 11-6714 YGR, ECF No. 75), dismiss the 2 claim and permit Plaintiffs to add ATTM as a party, Plaintiffs will stand on their existing 3 complaint and not add ATTM as a party. Therefore any such dismissal will become final and 4 immediately appealable to the Ninth Circuit Court of Appeals." 5
6 for the parties discussed the Ward case and the Court indicated that if the parties agreed on a 7 stipulation dismissing the Ward case for failure to join a necessary party, AT&T Mobility LLC, 8 the Court would be inclined to enter a stipulated order dismissing the ...