Gilliam v. Fidelity Investments et al

MOTION for Leave to File Surreply in Opposition to Motion for Consolidation

D. Mass.December 27, 2004

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS JAMES GILLIAM, Individually And On ) Behalf Of All Others Similarly Situated, ) ) Plaintiff, ) ) v. ) CIVIL ACTION ) NO. 04-cv-11600-NG FIDELITY MANAGEMENT & ) RESEARCH COMPANY et al., ) ) Defendants. ) ) BOGATIN FAMILY TRUST, Individually ) And On Behalf Of All Others Similarly ) Situated, ) ) Plaintiff, ) ) v. ) CIVIL ACTION ) NO. 04-cv-11642-NG FIDELITY MANAGEMENT & ) RESEARCH COMPANY et al., ) ) Defendants. ) ) CYNTHIA A. BENNETT and ) GUY E. MILLER, ) ) Plaintiffs, ) v. ) CIVIL ACTION ) NO. 04-cv-11651-MLW FIDELITY MANAGEMENT & ) RESEARCH COMPANY and ) FMR CO., INC., ) ) Defendants. ) ) [Caption continues on next page] Case 1:04-cv-11600-NG Document 73 Filed 12/27/2004 Page 1 of 6 2 ____________________________________ GHASSAN J. AWALI, Individually And ) On Behalf Of All Others Similarly Situated, ) ) Plaintiff, ) ) v. ) CIVIL ACTION ) NO. 04-cv-11709-MLW FIDELITY MANAGEMENT & ) RESEARCH COMPANY et al., ) ) Defendants. ) ____________________________________) WILLIAM S. GROESCHEL, Individually ) And On Behalf Of All Others Similarly ) Situated, ) ) Plaintiff, ) ) v. ) CIVIL ACTION ) NO. 04-cv-11735-GAO FIDELITY MANAGEMENT & ) RESEARCH COMPANY et al., ) ) Defendants. ) ____________________________________) NANCY HAUGEN, MICHAEL F. ) MAGNAN, KAREN L. MAGNAN, ) ROSE M. IANNACCONE, PRESELEY C. ) PHILLIPS, ANDREA M. PHILLIPS, ) and CINDY SHURGIN, for the use and ) benefit of FIDELITY MAGELLAN ) and FIDELITY CONTRAFUND, ) ) Plaintiffs, ) ) v. ) CIVIL ACTION ) NO. 04-cv-11756-MLW FIDELITY MANAGEMENT & ) RESEARCH COMPANY and ) FMR CO., INC., ) ) Defendants. ) ____________________________________) [Caption continues on next page] Case 1:04-cv-11600-NG Document 73 Filed 12/27/2004 Page 2 of 6 3 ____________________________________ DAVID O. FALLERT, Individually And On ) Behalf Of All Others Similarly Situated, ) ) Plaintiff, ) ) v. ) CIVIL ACTION ) NO. 04-cv-11812-MLW FIDELITY MANAGEMENT & ) RESEARCH COMPANY et al., ) ) Defendants. ) ____________________________________) THE BENNETT PLAINTIFFS' MOTION FOR LEAVE TO FILE SURREPLY IN OPPOSITION TO THE CLASS ACTION PLAINTIFFS' MOTION FOR CONSOLIDATION Plaintiffs Cynthia A. Bennett and Guy E. Miller (the "Bennett Plaintiffs"), pursuant to Local Rule 7.1(B)(3), hereby move for leave to submit a Surreply in Opposition to the Class Action Plaintiffs' Motion for Consolidation. The proposed Surreply that the Bennett Plaintiffs seek to submit is attached hereto as Exhibit A. In support of this motion, the Bennett Plaintiffs state as follows: 1. On September 1, 2004, the plaintiffs in Gilliam v. Fidelity Management & Research Co. et al., No. 04-11600; Bogatin Family Trust v. Fidelity Management & Research Co. et al., No. 04-11642; Awali v. Fidelity Management and Research Co. et al., No. 04-11709; Groeschel v. Fidelity Management and Research Co. et al., No. 04-11735; and Fallert v. Fidelity Management and Research Co. et al., No. 04-11812 (collectively, the "Class Actions") filed a Motion for Appointment of Tri-Lead Counsel and Appointment of Liaison Counsel and a Motion for Consolidation, seeking to consolidate the Class Actions with each other and also with two other actions: Bennett v. Fidelity Management and Research Co. et al., No. 04-11651 (the Case 1:04-cv-11600-NG Document 73 Filed 12/27/2004 Page 3 of 6 4 "Bennett Action") and Haugen v. Fidelity Management and Research Co. et al., No. 04-11756 (the "Haugen Action"). These motions were filed in the Class Actions but not in the Bennett or Haugen Actions, which were both pending as related cases before Judge Wolf. 2. On September 15, 2004, the Bennett Plaintiffs filed in the Bennett Action their opposition to the motion for consolidation.1 A courtesy copy of the Bennett Plaintiffs' opposition also was submitted to Judge Stearns, before whom the Class Actions were then pending.2 3. The plaintiffs in the Haugen Action, as well as all of the defendants in the Class Actions and the Bennett and Haugen Actions also have opposed the Class Action Plaintiffs' motion for consolidation. 4. On December 2, 2004, the Class Action Plaintiffs filed a Reply Memorandum in further support of their motion for consolidation. The Class Action Plaintiffs did not seek leave from the Court, pursuant to Local Rule 7.1(B)(3), prior to filing their Reply Memorandum. On December 15, 2004, the Class Action Plaintiffs filed a motion seeking leave to file their previously-submitted Reply Memorandum. 5. The Reply Memorandum raises several arguments and legal issues beyond those raised originally in motion for consolidation, to which the Bennett Plaintiffs are compelled to respond. The Bennett Plaintiffs believe that their proposed Surreply will assist the Court in rendering a decision on the merits of the Class Action Plaintiffs' motion for consolidation. 1 Believing that briefing on the issue of appointment of lead counsel was premature, the Bennett Plaintiffs requested that they be given an opportunity to be heard on that issue if and when the cases are actually consolidated. 2 Since that time, Judge Stearns has recused himself from the Class Actions, which were then reassigned to other judges in this district as follows: Gilliam and Bogatin Family Trust were reassigned to Judge Gertner; Groeschel was reassigned to Judge O'Toole; and Awali and Fallert were reassigned to Judge Wolf. Case 1:04-cv-11600-NG Document 73 Filed 12/27/2004 Page 4 of 6 5 Local Rule 7.1 Certification 6. Counsel for the Bennett Plaintiffs hereby certify that they have conferred with counsel for the Class Action Plaintiffs in a good faith, albeit unsuccessful, attempt to resolve the issues raised herein. WHERFORE, the Bennett Plaintiffs respectfully request that they be granted leave to file their Surreply in Opposition to the Class Action Plaintiffs' Motion for Consolidation. Respectfully submitted, CYNTHIA A. BENNETT and GUY E. MILLER, By their attorneys, s/Matthew J. Tuttle Robert D. Friedman, BBO# 180240 rfriedman@pscboston.com Harry S. Miller, BBO# 346946 hmiller@pscboston.com Matthew J. Tuttle, BBO# 562758 mtuttle@pscboston.com Sara B. Davis, BBO# 648002 sdavis@pscboston.com PERKINS SMITH & COHEN LLP One Beacon Street, 30th Floor Boston, MA 02108 Dated: December 27, 2004 (617) 854-4000 Thomas R. Grady (pro hac vice) THOMAS R. GRADY, P.A. 720 Fifth Avenue South Suite 200 Naples, Florida 34102 (239) 261-6555 Case 1:04-cv-11600-NG Document 73 Filed 12/27/2004 Page 5 of 6 6 CERTIFICATE OF SERVICE I hereby certify that a true copy of the above document was served upon the attorney(s) of record for each other party via the electronic filing system or via facsimile on December 27, 2004. s/Matthew J. Tuttle Matthew J. Tuttle Case 1:04-cv-11600-NG Document 73 Filed 12/27/2004 Page 6 of 6