Fitzgerald et al v. Universal Pictures et al

MOTION for leave to file Reply

M.D. Fla.September 3, 2018

IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION CHARLIE FITZGERALD III, OPHELIA PARKER, and JOSEPH NASO, individually and on behalf of all others similarly situated, Plaintiff, v. UNIVERSAL PICTURES, a division of UNIVERSAL CITY STUDIOS, LLC, LEGEND PICTURES, LLC, LEGENDARY PICTURES FUNDING, LLC, LEGENDARY ANALYTICS, LLC, AND HANDSTACK, P.B.C., Defendants. Case No. 16-cv-1193 PLAINTIFFS’ OPPOSED MOTION FOR LEAVE TO FILE REPLY MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION Case 6:16-cv-01193-CEM-DCI Document 120 Filed 09/03/18 Page 1 of 6 PageID 2237 COMES NOW the Plaintiffs, individually and on behalf of all others similarly situated, and hereby files this Motion For Leave To File Reply Memorandum in Support of Plaintiffs’ previously filed Motion For Class Certification, and further states in support as follows: 1. On July 27, 2018, the Plaintiffs filed a Motion For Class Certification. Doc. 112. 2. On August 21, 2018, the Defendants filed a Motion (Doc. 113) requesting an additional ten pages for Defendants’ joint opposition to Plaintiffs’ Motion. 3. On August 22, 2018, the Court granted Defendants’ Motion indicating that the “Defendants may file a single, joint response consisting of no more than 30 pages.” Doc. 115. 4. On August 28, 2018, Defendants filed a 30-page Joint Opposition to Plaintiffs’ Renewed Motion for Class Certification (“Opposition”). Doc. 117. 5. Plaintiff hereby requests leave to file a reply, not to exceed 10 pages (the same amount granted to Defendants), to Defendants’ Response to Plaintiffs’ Motion For Class Certification. This will give an equal amount of total filed pages - thirty - to both parties. Further, said reply will be filed on or before September 17, 2018. 1 6. Pursuant to Local Rule 3.01 and the Court’s Case Management Order, the Court may permit a reply brief based on a showing of “good cause.” 7. “The purpose of a reply brief is to rebut any new law or facts contained in the opposition’s response to a request for relief before the Court.” Tardif v. PETA, 2011 U.S. Dist. LEXIS 75346, at *5 (M.D. Fla. July 13, 2011). 1 Plaintiffs note that the holiday of Rosh Hashanah commences on the evening of September 9th and concludes on the evening of September 11th. Multiple attorneys in this case will begin travel for the holiday before September 9th so as to begin their religious observance. Page 1 Case 6:16-cv-01193-CEM-DCI Document 120 Filed 09/03/18 Page 2 of 6 PageID 2238 8. There is good cause for the allowance of a reply brief as the Opposition contains "new law or facts," and because the proffered content of the reply would be beneficial to the Court's review of the pending Motion for Class Certification. 9. First, the Opposition cites new law and seeks to extend a recent Supreme Court case, Bristol-Myers Squibb Co. v. Super. Ct., which was decided after the onset of this litigation, to this case. 137 S. Ct. 1773, 1783 (2017). Bristol-Myers limited jurisdiction, in a mass action filed by more than 600 individual plaintiffs in California state court against a pharmaceutical manufacturer, involving only California claims. The Opposition seeks to now extend this opinion to class actions. Allowing a reply will allow Plaintiffs to address this issue. 10. Second, the Opposition attempts to add new evidence by selectively cherry-picking the few non-negative/neutral responses, out of thousands, to stand for the proposition that there is no Article III standing for those spammed. Plaintiffs, in their reply, will respond to the Opposition’s Article III standing argument. 11. Third, the Opposition raises new supposed facts concerning the telephone “matching” that was attempted by the Defendants when they engaged in their text message campaign. The Defendants now argue that because they did an extraordinarily poor job of accurately matching the data to the correct recipients, and cite to a newly-filed declaration by one of their experts, that the identity of the putative Class Members and the time that a text was received cannot be identified. Id. at 11-20. Plaintiffs, in their proposed reply, will address how the Defendants failed (if they even, in fact, tried,) to match the recipient telephone numbers with actual users, and that it is not only feasible, but relatively commonplace to accurately do so (and thus, ascertain, inter alia, the Class). Page 2 Case 6:16-cv-01193-CEM-DCI Document 120 Filed 09/03/18 Page 3 of 6 PageID 2239 12. Fourth, this Court has accepted Plaintiff’s expert, Ms. Verkhovskaya’s methods in the past, as have a myriad of other courts throughout the country (including in the largest TCPA verdict to date). Plaintiffs timely served Ms. Verkhovskaya’s Rebuttal Report which further elaborates on the process by which ascertainability can be achieved. Defendants, in their Opposition, state that Ms. Verkhovskaya’s methodology is unsound. Id. at 15. A reply will allow Plaintiffs to assist the Court in understanding that the ascertainability of the Classes can be obtained to a very high degree, and to the same constitutionally-acceptable manner that the expert has done in the past in the preceding decades. 13. Fifth, the Defendants raised the issue of the adequacy of counsel as it relates to one of the Plaintiffs, which is a new issue unaddressed in Plaintiff’s Motion. Id. at 26-28. A reply will allow this issue to be addressed and will assist the court. 14. Finally allowing the requested limited reply brief of up to ten pages, will give both sides an identical amount of pages in its briefing on the matter of certification. 15. Accordingly, Plaintiffs respectfully request the Court’s permission to submit a reply brief in Support of Plaintiffs’ previously filed Motion For Class Certification of up to ten pages. Page 3 Case 6:16-cv-01193-CEM-DCI Document 120 Filed 09/03/18 Page 4 of 6 PageID 2240 CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 3.01(g) Pursuant to Local Rule 3.01(g) counsel for the Plaintiff has conferred telephonically with counsel for the Defendants. Defense Counsel conferred in good faith, but the Parties were ultimately unable to agree on all elements of the reply brief for this Motion to be unopposed. As such, this request is being filed as opposed. Dated: September 3, 2018 /s/ Ed Normand . Edmund A. Normand FBN: 865590 /s/ Alex Couch Alex Couch FBN: 118152 Normand PLLC 3165 McCrory Place Suite 175 Orlando, FL 32803 Phone: 407-603-6031 Fax: 888-974-2175 alex@ednormand.com ed@ednormand.com service@ednormand.com office@ednormand.com and /s/ William Gray William Gray Pro Hac Vice Gray LLC 17 N. State State Suite 1600 Chicago, Illinois 60602 Tel: 312-278-7900 bgray@grayllclaw.com Attorneys for Plaintiffs and the Putative Class Page 4 Case 6:16-cv-01193-CEM-DCI Document 120 Filed 09/03/18 Page 5 of 6 PageID 2241 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 3, 2018 I electronically filed the foregoing document with the Clerk of the Court using CM/ECF, which will send a notice to electronic filing to all counsel on the Service List. /s/ Alex Couch Alex Couch, Esq. FBN: 118152 SERVICE LIST ______________________________________________________________________________ Gregory W. Herbert Rob Herrington GREENBERG TRAURIG, P.A. 450 South Orange Ave. Suite 650 Orlando, FL 32801 herbertg@gtlaw.com herringtonr@gtlaw.com castrop@gtlaw.com redmanb@gtlaw.com Steven A. Marenberg Stephen M. Payne Michael Harbour IRELL & MANELLA, LLP 1800 Avenue of the Stars Suite 900 Los Angeles, CA 90067 smarenberg@irell.com spayne@irell.com mharbour@irell.com smarenberg@irell.com kjones@irell.com E. Colin Thompson Michael Joseph Labbee Kasey Feltner SMOLKER, BARTLETT, LOEB, HINDS & SHEPPARD, P.A. 100 N. Tampa Street Suite 2050 Tampa, Florida 33602 ColinT@smolkerbartlett.com AlyssaC@smolkerbartlett.com MichaelL@smolkerbartlett.com RochelleB@smolkerbartlett.com KaseyF@smolkerbartlett.com Page 5 Case 6:16-cv-01193-CEM-DCI Document 120 Filed 09/03/18 Page 6 of 6 PageID 2242