Hepting et al v. AT&T Corp. et al

Memorandum in Opposition re MOTION to Related Case Administrative Motion of Defendant AT&T Corp. to Consider Whether Cases Should Be Related

N.D. Cal.June 16, 2006

OPPOSITION OF PLAINTIFFS TOM CAMPBELL, ET AL. AND DENNIS RIORDAN, ET AL. TO AT&T CORP.’S ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED Case No. C-06-0672-VRW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ANN BRICK (State Bar No. 65296) MARK SCHLOSBERG (State Bar No. 209144) NICOLE A. OZER (State Bar No. 228643) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, California 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437 abrick@aclunc.org mschlosberg@aclunc.org nozer@aclunc.org Attorneys for Plaintiffs (additional counsel listed on following page) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION TASH HEPTING, et al., Plaintiffs, v. AT&T CORP., et al. Defendants. Case No. C-06-0672-VRW OPPOSITION OF PLAINTIFFS TOM CAMPBELL, ET AL. AND DENNIS P. RIORDAN , ET AL. TO AT&T CORP.’S ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED TOM CAMPBELL, et al., Plaintiffs, v. AT&T COMMUNICATIONS OF CALIFORNIA, et al, Defendants. Case No. 06-3596 VRW Hepting et al v. AT&T Corp. et al Doc. 234 Dockets.Justia.com OPPOSITION OF PLAINTIFFS TOM CAMPBELL, ET AL. AND DENNIS RIORDAN, ET AL. TO AT&T CORP.’S ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED Case No. C-06-0672-VRW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PETER ELIASBERG (State Bar No. 189110) CLARE PASTORE (State Bar No. 135933) ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1616 Beverly Boulevard Los Angeles, California 90026 Telephone: (213) 977-9500 Facsimile: (213) 250-3919 peliasberg@aclu-sc.org cpastore@aclu-sc.org DAVID BLAIR-LOY (State Bar No. 229235) ACLU FOUNDATION OF SAN DIEGO/IMPERIAL COUNTIES P.O. Box 87131 San Diego, California 92138 Telephone: (619) 232-2121 Facsimile: (619) 232-0036 dblairloy@aclusandiego.org LAURENCE F. PULGRAM (State Bar No. 115163) JENNIFER L. KELLY (State Bar No. 193416) SAINA SHAMILOV (State Bar No. 215636) FENWICK & WEST LLP Embarcadero Center West 275 Battery Street San Francisco, California 94111 Telephone: (415) 875-2300 Facsimile: (415) 281-1350 lpulgram@fenwick.com OPPOSITION OF PLAINTIFFS TOM CAMPBELL, ET AL. AND DENNIS RIORDAN, ET AL. TO AT&T CORP.’S ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED Case No. C-06-0672-VRW 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs Tom Campbell, et al. and Dennis Riordan, et al., submit this memorandum in opposition to the motion of AT&T Corp. suggesting that Campbell, et al. v. AT&T Communications of California, et al., case no. C-06-3596 VRW (“Campbell”) should be related to Hepting, et al. v. AT&T Corp., et al., case no. C-06-00672 VRW (“Hepting”). As discussed in plaintiffs’ own related case motion concerning Campbell and Riordan et al. v. Verizon Communications, Inc., case no. C-06-3574 JSW (“Riordan”),1 while Campbell and Riordan have much in common that justifies their being treated as related, they have little in common with Hepting. Even the defendants in Riordan and Campbell concede that these two companion cases should be heard by the same judge. See, e.g., Opposition of AT&T Defendants to the Riordan-Campbell related case motion at 2 (“Nonetheless, the Campbell and Riordan cases are related to Hepting because they involve substantially the same parties and events.”); Defendant Verizon’s Response to the Riordan- Campbell related case motion at 2, (“Defendant Verizon Communications Inc. . . . agrees that coordinated treatment of these cases would be appropriate but believes that if Riordan and Campbell are ‘related’ under Local Rule 3-12, two other cases . . . Hepting . . . and Roe, et al. v. AT&T Corp., et al., No. C-06-03467—are also related.”). Plaintiffs differ with defendants AT&T and Verizon, however, about whether Riordan and Campbell should be related to Hepting and Roe. In fact the two sets of cases are very different and little will be gained in terms of judicial economy in having all four cases before the same judge. First, and foremost, the legal questions the Court will be called upon to resolve in the two sets of cases are quite different. Hepting and Roe are both nationwide class action suits for damages, in 1 AT&T’s Motion mistakenly refers to Riordan as “Debonis,” but it is intending to refer to the same action, C-06-3574 JSW. Riordan has been reassigned to Judge White after a declination to proceed before a United States Magistrate Judge as it was initially assigned. OPPOSITION OF PLAINTIFFS TOM CAMPBELL, ET AL. AND DENNIS RIORDAN, ET AL. TO AT&T CORP.’S ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED Case No. C-06-0672-VRW 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 addition to seeking equitable relief. Riordan and Campbell are not class action lawsuits, so none of the class issues that must be resolved in Hepting and Roe will be at issue in Riordan and Campbell. Nor will any of the damages issues be relevant in Riordan and Campbell because plaintiffs in Riordan and Campbell seek only equitable relief. More importantly, the gravamen of the Hepting and Roe complaints is the claim that defendants have violated federal law. In Hepting, six of the seven claims for relief are based on federal law. The sole state law claim asserted in Hepting is a claim under California Business & Professions Code section 17200 et seq. That is the sole state law claim in Roe, as well. Riordan and Campbell, on the other hand, assert no federal claims, nor do they assert a section 17200 claim. Rather, the two claims for relief in Riordan and Campbell are based on (i) the privacy provision of Article I, section 1 of the California Constitution and (ii) Public Utilities Code section 2891, which prohibits telephone companies from providing customer calling records to third parties unless it has the customer’s consent or unless it is required to provide the records pursuant to legal process. Because Riordan and Campbell are quintessentially state law cases, the first substantive issue the district court must confront is its lack of subject matter jurisdiction over these two cases. Nothing that has gone before in Hepting will result in any judicial economies in resolving that issue. Moreover, resolution of that threshold issue will most likely result in a remand of the cases to state court, thus ending the need for further involvement by any judge of this court. Thus the most expeditious and efficient way to manage Riordan and Campbell is to have them heard by the judge assigned to Riordan, the lower numbered of the two cases, and to keep them free of the complications and entanglements of Hepting and Roe. OPPOSITION OF PLAINTIFFS TOM CAMPBELL, ET AL. AND DENNIS RIORDAN, ET AL. TO AT&T CORP.’S ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED Case No. C-06-0672-VRW 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: June 16, 2006 Respectfully submitted, By: s/Ann Brick Ann Brick Counsel for Plaintiffs Ann Brick Mark Schlosberg Nicole Ozer American Civil Liberties Union Foundation of Northern California Peter Eliasberg Clare Pastore American Civil Liberties Union Foundation of Southern California David Blair-Loy American Civil Liberties Union Foundation of San Diego/Imperial Counties Laurence Pulgram Jennifer L. Kelly Saina Shamilov Fenwick & West LLP