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Zack Ward and Thomas Buchar, On v. Apple Inc

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION


December 17, 2012

ZACK WARD AND THOMAS BUCHAR, ON
BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
APPLE INC.,
DEFENDANT.

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 complaint and would 9 thereafter enter judgment in favor of Apple. 10

11 and Apple have conferred and agreed as follows: 12

13 of the Consolidated Complaint in iPhone II. 14

WHEREAS, during the Case Management Conference on December 10, 2012, counsel

WHEREAS, consistent with Rule 1 of the Federal Rules of Civil Procedure, Plaintiffs

1. The only claim for relief in Ward (Count I) is substantially identical to Count III

2. Apple's notice of motion and motion to dismiss in iPhone II (ECF Nos. 37 and 42, filed under seal pursuant to Order found at ECF No. 41), shall serve as Apple's notice of 16 motion and motion to dismiss the Ward complaint. Those papers and the supporting documents 17 submitted by Apple in iPhone II (ECF Nos. 36-40 and ECF No. 42, filed under seal pursuant to 18

Order found at ECF No. 41) shall be deemed to refer to the Ward complaint and are properly 19 before the Court in connection with Apple's motion to dismiss the Ward complaint. 20

21 shall serve as Plaintiffs' opposition to Apple's motion to dismiss in Ward. Those papers and the 22 supporting documents submitted by Plaintiffs in iPhone II (ECF Nos. 43-45) shall be deemed to 23 refer to the Ward complaint and are properly before the Court in connection with Apple's motion 24 to dismiss the Ward complaint. 25

4. Apple's reply in support of its motion to dismiss in iPhone II (ECF Nos. 56, 57

26 and 59, filed under seal pursuant to Order found at ECF No. 58) shall serve as Apple's reply in 27 support of its motion to dismiss in Ward and shall be deemed to refer to the Ward complaint and 28 are properly before the Court in connection with Apple's motion to dismiss the Ward complaint.

3. Plaintiffs' opposition to Apple's motion to dismiss in iPhone II (ECF No. 44)

5. In order to permit Apple to perfect its record for any appeal, Apple submits the 2 declaration attached as Exhibit 1 attesting to AT&T Mobility LLC's interest in this case. 3

6. The parties stipulate that the Court may enter the following order dismissing the 4 case with prejudice for failure to join a necessary party and thereafter enter judgment in favor of 5 Apple: "For the reasons set forth in Judge Ware's July 11, 2012 Order, the Court grants Apple's 6 motion to dismiss Plaintiffs' Complaint pursuant to Rule 12(b)(7) of the Federal Rules of Civil 7

Procedure for failure to join a necessary party, AT&T Mobility LLC. Given Plaintiffs' 8 representation that they will stand on their Complaint and not name AT&T Mobility LLC as a 9 defendant, the Court dismisses Plaintiffs' Complaint with prejudice and directs the Clerk to enter 10 judgment in favor of Apple forthwith. In order to ensure a complete record for any appeal, the 11

Clerk is directed to make the following documents from In re Apple iPhone Antitrust Litigation, 12

No. C 11-6714 YGR, part of the record in this case: ECF Nos. 36-45, 56-59 and 75." 13

IT IS SO STIPULATED AND AGREED.

The authority for and concurrence in the filing of this stipulated request has been 15 obtained from each of the signatories, pursuant to Civil Local Rule 5-1(i)(3). 16 17

ORDER

PURSUANT TO THE PARTIES' STIPULATION, and for the reasons set forth in Judge

Ware's July 11, 2012 Order, the Court grants Apple's motion to dismiss Plaintiffs' Complaint 4 pursuant to Rule 12(b)(7) of the Federal Rules of Civil Procedure for failure to join a necessary 5 party, AT&T Mobility LLC. Given Plaintiffs' representation that they will stand on their 6 Complaint and not name AT&T Mobility LLC as a defendant, the Court DISMISSES Plaintiffs' Complaint WITH PREJUDICE. In order to ensure a complete record for any appeal, the Clerk is 8 directed to make the following documents from In re Apple iPhone Antitrust Litigation, No. C 9 11-6714 YGR, part of the record in this case: ECF Nos. 36-45, 56-59 and 75. 10

The parties are directed to meet and confer and submit to the Court a proposed judgment 11 consistent with this Order by December 20, 2012. 12

This Order terminates Dkt. No. 22.

IT IS SO ORDERED.

20121217

© 1992-2012 VersusLaw Inc.



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