Simpson v. California Pizza Kitchen, Inc. et al

MOTION for Sanctions under Fed. R. Civ. P. 11

S.D. Cal.May 6, 2013

DEFENDANTS’ NOTICE OF MOTION FOR SANCTIONS CASE NO. 13CV0164 JLS JMA 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 MAYER BROWN LLP Dale J. Giali (SBN 150382) dgiali@mayerbrown.com Andrew Z. Edelstein (SBN 218023) aedelstein@mayerbrown.com 350 South Grand Avenue, 25th Floor Los Angeles, CA 90071-1503 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 MAYER BROWN LLP Carmine R. Zarlenga (pro hac vice) czarlenga@mayerbrown.com 1999 K Street, N.W. Washington, D.C. 20006-1101 Telephone: (202) 263-3000 Facsimile: (202) 263-3300 Attorneys for Defendant CALIFORNIA PIZZA KITCHEN, INC. and NESTLÉ USA, INC. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA KATIE SIMPSON, on behalf of herself and all others similarly situated, Plaintiffs, v. CALIFORNIA PIZZA KITCHEN, INC. and NESTLÉ USA, INC., Defendants. Case No. 13CV0164 JLS JMA Action Filed: January 21, 2013 DEFENDANTS’ NOTICE OF MOTION FOR RULE 11 SANCTIONS; PROOF OF SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DALE J. GIALI [Fed. R. Civ. P. 11] Hearing Date: July 11, 2013 Hearing Time: 1:30 p.m. Location: Courtroom 4A Trial Date: None set Case 3:13-cv-00164-JLS-JMA Document 21 Filed 05/06/13 Page 1 of 6 1 DEFENDANTS’ NOTICE OF MOTION FOR SANCTIONS CASE NO. 13CV0164 JLS JMA 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 PLEASE TAKE NOTICE THAT on July 11, 2013, at 1:30 p.m., or as soon thereafter as this may be heard, in Courtroom 4A of this Court, located at 221 West Broadway, San Diego, California, before the Honorable Janis L. Sammartino, defendants California Pizza Kitchen, Inc. and Nestlé USA, Inc. will and hereby do move the Court for an order issuing sanctions against attorney Gregory Weston and The Weston Firm as follows: (i) a monetary sanction in the amount of $150,000 for presenting to the Court for filing the first amended complaint in this action (Dkt. #13), and (ii) striking the first amended complaint with prejudice. PLEASE TAKE FURTHER NOTICE THAT defendants also seek an award of fees in the amount of $50,000 in the event they are the prevailing parties on this motion, as reimbursement for the reasonable fees incurred on this motion. Filing of this motion is in full compliance with Fed. R. Civ. P. 11(c)(2). This motion is filed only after the supporting papers were served on The Weston Firm and Gregory Weston and the 21-day safe harbor period of Fed. R. Civ. P. 11(c)(2) lapsed. As the attached proof of service attests, the memorandum of points and authorities and the declaration of Dale Giali and accompanying exhibits supporting this motion were hand-served on The Weston Firm and Gregory Weston on April 11, 2013. Moreover, as the e-mail attached directly after the proof of service attests, separate courtesy electronic delivery to Mr. Weston was made on the same day. This motion also is served 55 days after defendants’ motion to dismiss the initial complaint was served and filed, 53 days after defendants’ initial Rule 11 motion was served, and 24 days after defendants’ motion to dismiss the amended complaint was served and filed. This motion is made pursuant to and in compliance with Fed. R. Civ. P. 11, and is based on the grounds that Gregory Weston and The Weston Firm filed an objectively baseless first amended complaint for an improper purpose. Case 3:13-cv-00164-JLS-JMA Document 21 Filed 05/06/13 Page 2 of 6 2 DEFENDANTS’ NOTICE OF MOTION FOR SANCTIONS CASE NO. 13CV0164 JLS JMA 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 This motion is based on this notice of motion, the accompanying memorandum of points and authorities, the accompanying declaration of Dale J. Giali, the separately filed renewed motion to dismiss (Dkt. #20-1), all pleadings and documents on file in this case, and on such other written and oral argument as may be presented to the Court. DATED: May 6, 2013 MAYER BROWN LLP Carmine R. Zarlenga Dale J. Giali Andrew Z. Edelstein By: /s/ Dale J. Giali Dale J. Giali Attorneys for Defendants CALIFORNIA PIZZA KITCHEN, INC. and NESTLÉ USA, INC. Case 3:13-cv-00164-JLS-JMA Document 21 Filed 05/06/13 Page 3 of 6 1 PROOF OF SERVICE OF DEFENDANTS’ MOTION FOR SANCTIONS CASE NO. 13CV0164 JLS JMA 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 CERTIFICATE OF SERVICE I hereby certify that on May 6, 2013, I caused the foregoing DEFENDANTS’ MOTION FOR RULE 11 SANCTIONS AND DECLARATION OF DALE J. GIALI and accompanying documents, to be re- served on plaintiff’s counsel. As the attached separate proof of service attests, the memorandum of points and authorities and declaration of Dale Giali, with exhibits, were initially hand-served on Gregory Weston and The Weston Firm on April 11, 2013. DATED: May 6, 2013 MAYER BROWN LLP By: /s/ Dale J. Giali Dale J. Giali Attorney for Defendant NESTLÉ USA, INC. Case 3:13-cv-00164-JLS-JMA Document 21 Filed 05/06/13 Page 4 of 6 Case 3:13-cv-00164-JLS-JMA Document 21 Filed 05/06/13 Page 5 of 6 1 Giali, Dale J. From: Giali, Dale J. Sent: Thursday, April 11, 2013 5:17 PM To: Gregory S. Weston Cc: jack@westonfirm.com; Zarlenga, Carmine R.; Edelstein, Andrew Subject: Simpson v. Nestlé USA -- courtesy service of 2d Rule 11 motion Attachments: Simpson Rule 11 -- Ex. J Initial Rule 11 P&A.pdf; Simpson Rule 11 -- Ex. K Redline.pdf; Simpson Rule 11 -- Ex. L Updated - PoisonPizza.com - 4-3-13.pdf; Simpson Rule 11 -- Ex. M (Stouffers Sausage).pdf; Simpson Rule 11 -- Exs. A-I Rule 11.pdf; Simpson Rule 11 -- Giali Decl.pdf; Simpson Rule 11 -- P&As.pdf Mr. Weston – I understand your office was hand served today with defendants’ 2d Rule 11 motion. Enclosed are courtesy e-copies of the papers. Dale J. Giali | M A Y E R • B R O W N 350 South Grand Avenue | 25th Floor | Los Angeles, CA 90071 T: 213.229.9509 | F: 213.625.0248 | C: 714.402.3485 | dgiali@mayerbrown.com Case 3:13-cv-00164-JLS-JMA Document 21 Filed 05/06/13 Page 6 of 6