United States District Court, S.D. California
ORDER REGARDING BRIEFING PLAINTIFFS' MOTION FOR
CLASS CERTIFICATION AND DEFENDANT'S SUMMARY JUDGMENT AND
DAUBERT MOTIONS [DOC. NO. 152]
Lorenz, United States District Judge
order supersedes the order filed November 17, 2016 (doc. no.
putative consumer class action, the parties contacted the
Court pursuant to Civil Local Rule 7.1 with requests for
hearing dates. Plaintiffs intend to file a motion to certify
a class action. On March 3, 2017, Defendant filed a motion
for partial summary judgment. In addition, Defendant intends
to file another summary judgment motion and a
Daubert motion. They request a briefing schedule to
accommodate orderly and efficient briefing.
pending request warrants a context. Plaintiffs had previously
filed a motion for class certification. Shortly thereafter he
parties encountered discovery disputes. On September 21,
2016, Defendant filed an ex parte application,
seeking to extend the time to file its opposition to the
class certification motion and continue the class
certification schedule because it wanted discovery to respond
to expert declarations filed in support of class
certification, but the parties could not agree if Defendant
was entitled to it. (Doc. no. 121.) The application was
vehemently opposed. (Doc. no. 122.) Plaintiffs indicated that
if Defendant was permitted to depose Plaintiffs' experts,
then they wanted an opportunity to re-file their motion after
the depositions. (Opp'n at 5 n.7.) Defendant filed an
involved reply. (Doc. no. 123.) The Court referred the
discovery dispute to the assigned Magistrate Judge,
see 28 U.S.C. §636(b)(1)(A) & Civ. Loc.
Rule 72.1(b), the hearing date for the class certification
motion was vacated, Plaintiffs' class certification
motion was denied without prejudice to accommodate their
request to re-file after expert depositions, if any, and the
parties were ordered to file a status report no later than
five days after the Magistrate Judge's disposition of the
discovery dispute. (Doc. no. 124.) On October 19, 2016, class
certification discovery was reopened to allow Defendant to
depose Plaintiffs' experts. (See doc. no. 128.)
On November 16, 2016, the parties jointly requested a
continuance of class certification deadlines and proposed a
briefing schedule to allow more time for briefing.
(See doc. no. 135.) Court largely granted the
request, and set March 3, 2017 as the due date for
Plaintiffs' renewed class certification motion.
(See doc. no. 137.)
March 3 due date approached, Defendant expressed the
intention to file summary judgment and Daubert
motions. Defendant's pending summary judgment motion
attacks named Plaintiffs' standing and the merits of
some, but not all claims alleged. The Defendant intends to
file another summary judgment motion relating to the claims
asserted by Chris Roman, a putative class representative
Plaintiffs intend to join. Mr. Roman has been deposed, but his
transcript has not been signed. Defendant waits for Mr.
Roman's signature and any corrections before filing the
motion. Finally, Defendant intends to file a Daubert
motion to attack the experts who provided evidence in support
of class certification.
request that their class certification motion and
Defendant's summary judgment motions be briefed
concurrently rather than consecutively because
Defendant's motions, even if granted, would not dispose
of all the claims as to which class certification is sought,
are relevant to viability of class certification, and are
directly relevant to the adequacy and typicality elements of
class certification. See Fed. R. Civ. Proc. 23.
Plaintiffs object to Defendant filing a separate summary
judgment motion as to Mr. Roman. They argue that the issues
Defendant intends to raise on summary judgment should be
raised in opposition to class certification instead.
requests the Court to set a due date for Mr. Roman to sign
his deposition transcript with corrections, if any. It seeks
leave to file the second summary judgment motion fourteen
(14) days after receiving the signed transcript. Defendant
offers to consolidate its pending and planned second summary
judgment motions in one brief.
interests of justice and in furtherance of orderly and
efficient briefing of the pending and upcoming motions, IT IS
ORDERED as follows:
1. Plaintiffs shall file their class certification motion, if
any, no later than March 15, 2017.
2. No later than March 15, 2017, Plaintiffs shall serve
Defendant with Mr. Roman's signed deposition transcript
with corrections, as any. In the absence of compliance with
this Order, the transcript shall be deemed corrected and
signed by Mr. Roman in its present condition.
2. Defendant shall brief the issues raised in the pending
summary judgment motion or planned to be raised in the
proposed summary judgment and Daubert motions, if
any, in the memorandum of points and authorities filed in
opposition to Plaintiffs' motion for class certification,
if any. The brief may be styled as a combined opposition,
motion for summary adjudication, and Daubert motion,
as appropriate in light of the requested relief. The brief
shall not exceed 45 pages in length. Defendant's brief
shall be filed no later than April 5, 2017.
3. Defendant's pending summary judgment motion (doc. no.
151) is DENIED WITHOUT PREJUDICE to including the same
arguments and requests for relief in Defendant's
opposition to Plaintiffs' class certification motion as
4. No later than April 26, 2017, Plaintiffs shall file their
reply in support of class certification and opposition to any
summary judgment and/or Daubert motions Defendant
joined with its opposition to class certification. The reply
and opposition, if any, shall be briefed in one combined
memorandum of points and authorities, which shall not exceed
35 pages in length.
5. No later than May 3, 2017, Defendant shall file a reply in
support of its summary adjudication and/or Daubert
motions. The brief ...