Advanced Internet Technologies, Inc. v. Google, Inc. Doc.

38
Case 5:05-cv-02579-RMW Document 38 Filed 04/04/2006 Page 1 of 4

1 RICHARD L. KELLNER, SBN 171416

FRANK E. MARCHETTI, SBN 203185
2 KABATECK BROWN KELLNER LLP
350 South Grand Avenue, 39th Floor
3 Los Angeles, California 90071-3801
Telephone: (213) 217-5000
4 Facsimile: (213) 217-5010

5 DARREN T. KAPLAN (Admitted Pro Hac Vice)

GREGORY E. KELLER (To be admitted Pro Hac Vice)
6 CHITWOOD HARLEY HARNES LLP
2300 Promenade II
7 1230 Peachtree Street, NE
Atlanta, Georgia 30309
Telephone: (404) 873-3900
8 Facsimile: (404) 876-4476
9 SHAWN KHORRAMI, SBN 180411
LAW OFFICES OF SHAWN KHORRAMI
10 14550 Haynes Street, Third Floor
Van Nuys, California 91411
11 Telephone: (818) 947-5111
Facsimile: (818) 947-5121
12
Attorneys for Plaintiff
13

14 UNITED STATES DISTRICT COURT

15 NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
16
ADVANCED INTERNET TECHNOLOGIES, Case No. C 05 02579 RMW
17 INC., a North Carolina corporation, individually
and on behalf of all others similarly situated, Consolidated with
18 Case No. C 05 02885 RMW
Plaintiff,
19 vs. PLAINTIFF ADVANCED INTERNET
GOOGLE, INC., a Delaware Corporation, and TECHNOLOGIES, INC.’S
20 ADMINISTRATIVE MOTION TO FILE
DOES 1 through 100, Inclusive,
SUPPLEMENTARY MATERIAL IN
21 OPPOSITION TO DEFENDANT
Defendants.
GOOGLE, INC.’S MOTION
22 TO STAY
23 STEVE MIZERA, an Individual, individually
Judge: Hon. Ronald M. Whyte
and on behalf of all others similarly situated,
24 Date Complaint Filed: June 24, 2005
Plaintiff,
25 vs.
Trial Date: None set
GOOGLE, INC., a Delaware Corporation, and
26 DOES 1 through 100, Inclusive,
27 Defendants.
28

PLAINTIFF’S ADMINISTRATIVE MOTION TO FILE SUPPLEMENTARY MATERIAL

IN OPPOSITION TO DEFENDANT GOOGLE, INC.’S MOTION TO STAY
Case No. C 05 02579 RMW
Dockets.Justia.com
 Case 5:05-cv-02579-RMW Document 38 Filed 04/04/2006 Page 2 of 4

1 I. INTRODUCTION

2 Under Civil L.R. 7-11, plaintiff and proposed representative class plaintiff, Advanced
3 Internet Technologies, Inc. (“AIT”) moves for an administrative order permitting AIT to file
4
supplementary material in further opposition to defendant Google, Inc.’s (“Google’s”) Motion to
5
Stay Pending Settlement.
6
On March 9, 2006, Google filed a motion1 to stay this action because it had supposedly
7
reached a settlement of another putative class action against Google pending in the Circuit Court
8
of Miller County Arkansas which raised similar claims against Google as those raised by AIT
9

10 here. AIT seeks to file supplementary material which was not available to it at the time its

11 Opposition to Google’s motion was due on March 13, 2006. Such supplementary material

12 consists of: (a) the transcript of the hearing held in the Circuit Court of Miller County Arkansas
13 on March 14, 2006 on AIT’s motion to intervene in that action; (b) a copy of a letter setting forth
14
the decision of the Circuit Court of Miller County Arkansas denying AIT’s motion to intervene
15
dated March 31, 2006; and (c) the declaration of W. David Carter describing the proceedings in
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what was supposed to be the preliminary approval hearing for the proposed settlement in the
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Circuit Court of Miller County Arkansas on April 3, 2006.
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II. BACKGROUND
19

20 AIT filed a motion to intervene in the Circuit Court of Miller County Arkansas (the

21 “Arkansas Action) on February 17, 2006. As required by this Court’s scheduling order, AIT

22 also filed a motion for class certification in this Court on March 6, 2006. Three days after AIT
23
1
Like this motion, Google’s motion to stay was an administrative motion pursuant to Civil L.R.
24 7-11. Among other arguments advanced, AIT opposed Google’s motion as improper in that the
relief that Google seeks—a stay of proceedings pending settlement of a nationwide class action
25 in another court—is fully dispositive of the claims asserted herein; relief which minimally should
require full briefing and oral argument. In contrast, AIT’s motion merely seeks an order
26 permitting it to file supplementary material; relief which fits squarely within the rubric of
“administrative” relief as described in Civil L.R. 7-11. AIT makes this motion to advise the
27 Court of certain developments that have occurred since the filing of Google’s Motion to Stay and
does not hereby waive its objection that Google’s “administrative” motion to stay was
28 procedurally improper.

PLAINTIFF’S ADMINISTRATIVE MOTION TO FILE SUPPLEMENTARY MATERIAL

IN OPPOSITION TO DEFENDANT GOOGLE, INC.’S MOTION TO STAY
Case No. C 05 02579 RMW
 Case 5:05-cv-02579-RMW Document 38 Filed 04/04/2006 Page 3 of 4

1 moved for class certification, Google moved to stay this action based on the assertion that

2 Google had reached a “comprehensive class settlement” with the plaintiffs in the Arkansas
3 Action.
4
III. ARGUMENT
5
Google premised its Motion to Say Pending Settlement, at least in part, on the argument
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that: “[a]s noted, AIT has moved to intervene in the Arkansas action . . . Thus, AIT may be
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allowed to participate fully in the Arkansas case as a named plaintiff.” [Google’s Motion to Stay
8
Pending Settlement p. 4:23-25] What Google failed to advise the Court in its motion is that
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10 Google intended to oppose AIT’s motion to intervene in the Arkansas Action. In fact, just five

11 days later, Google, by the very attorney who authored Google’s Motion to Stay, opposed AIT’s

12 motion to intervene at the hearing in Arkansas. [Exhibit “1” to the Declaration of Darren T.
13 Kaplan (the “Kaplan Dec.”) pp. 30-33] The transcript of the hearing on AIT’s motion to
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intervene in the Arkansas Action is supplementary material which this Court should consider in
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ruling on Google’s Motion to Stay.
16
Further, on March 31, 2006, the Hon. Joe Griffin, the judge in the Arkansas Action,
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advised the litigants that he was denying AIT’s motion to intervene as untimely—precisely the
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grounds which Google advanced at the hearing on AIT’s motion to intervene.2 [Exhibit “2” to
19

20 the Kaplan Dec.] The denial of AIT’s motion to intervene is supplementary material which this

21 Court should consider in ruling on Google’s Motion to Stay.

22 Finally, notwithstanding Google’s representation to this Court to the effect that “Google
23 and the plaintiffs in the Arkansas case have reached a comprehensive class settlement that, once
24 finalized will resolve all of the class claims pending before this Court,” [Google’s Motion to
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Stay Pending Settlement p. 1:7-9] the settlement in question appears to be more hypothetical
26
2
27 In contrast to Google, the plaintiffs in the Arkansas Action argued at the hearing that AIT’s
motion to intervene was premature.
28

PLAINTIFF’S ADMINISTRATIVE MOTION TO FILE SUPPLEMENTARY MATERIAL

IN OPPOSITION TO DEFENDANT GOOGLE, INC.’S MOTION TO STAY
Case No. C 05 02579 RMW
 Case 5:05-cv-02579-RMW Document 38 Filed 04/04/2006 Page 4 of 4

1 than comprehensive. As set forth in the declaration of AIT’s Arkansas local counsel, “counsel

2 for the Arkansas plaintiffs and Google represented on the record that they had not reached a
3 settlement agreement that could be presented for the Court's review.” [Exhibit “3” to the Kaplan
4
Dec.] Thus, despite the fact that the Arkansas plaintiffs had scheduled April 3, 2006 as the date
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for preliminary approval of the purported settlement with Google, no settlement agreement could
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be presented and no preliminary approval was obtained.
7
The next preliminary approval date in the Arkansas Action is April 20, 2006; perhaps
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Google and the Arkansas plaintiffs will have reached a settlement by then, perhaps not. In any
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10 event, Google’s purported settlement of the Arkansas Action is not sufficiently certain as to

11 warrant a stay of these proceedings. The proceedings in the Arkansas Action on the motion for

12 preliminary approval of the supposed settlement are supplementary material which this Court
13 should consider in ruling on Google’s Motion to Stay.
14
IV. CONCLUSION
15
For the foregoing reasons, AIT respectfully requests that this Court permit AIT to file
16
supplementary material in further opposition to Google’s Motion to Stay Pending Settlement.
17

18
Dated: April 3, 2006 CHITWOOD HARLEY HARNES LLP
19

20

21 By:_________/s/ Darren T. Kaplan______

DARREN T. KAPLAN (Admitted Pro Hac Vice)
22 Attorneys for Plaintiff ADVANCED INTERNET
TECHNOLOGIES, INC.
23

24

25
26

27

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PLAINTIFF’S ADMINISTRATIVE MOTION TO FILE SUPPLEMENTARY MATERIAL

IN OPPOSITION TO DEFENDANT GOOGLE, INC.’S MOTION TO STAY
Case No. C 05 02579 RMW