FORSYTH v MPAA: STIPULATION AND ORDER RE [#39], May 17, 2016

May 18, 2016 1:37 am by Gene Borio

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EXCERPT:

1. Plaintiff’s Opposition to Defendants’ motions is due on or before July 15, 2016;

2. Plaintiff’s Opposition brief to the anti-SLAPP motions shall not exceed 40 pages of text (exclusive of caption page and tables);

3. Defendants’ anti-SLAPP motion is akin to a Rule 12 and not a Rule 56 Motion. Plaintiff stipulates that he will not seek to conduct any discovery to respond to the anti-SLAPP motion or the motion to dismiss unless defendants’ reply memoranda attempts to convert the motions to Rule 56 motions. Defendants stipulate that by entering into this stipulation plaintiff has not waived any right to claim that the California anti-SLAPP statute should not be applied in any manner to this case;

4. Within one week of the filing of Plaintiff’s Opposition, the parties shall meet-and-confer on the date for Defendants to file their Reply brief(s) and a proposed hearing date on the motions, and the parties thereafter shall promptly submit a Stipulation and [Proposed] Order for the Court’s review;

5. Walt Disney Studios Motion Pictures is substituted in place of The Walt Disney Company as a Defendant in the case, and The Walt Disney Company is dismissed; and

6. The CMC currently scheduled for May 26, 2016 shall be vacated, and following the Court’s ruling the Defendants’ pending dispositive motions, the Court shall, if necessary, reschedule the CMC a trial setting conference for a date not to exceed one month from the Court’s ruling on Defendant’s dispositive motions, unless the Court finds good cause at the time to set the CMC for a later date.

IT IS SO STIPULATED.

. . .

THE COURT FINDS GOOD CAUSE EXISTS FOR THE PARTIES’ STIPULATION AND ON THAT BASIS THE FOREGOING STIPULATION IS APPROVED AND IS SO ORDERED.

DATED: _________________________

5/17/16

HONORABLE RICHARD SEEBORG

UNITED STATES DISTRICT JUDGE

END EXCERPT

FULL TEXT:

Case 3:16-cv-00935-RS Document 40 Filed 05/17/16 Page 1 of 7

GLENN D. POMERANTZ (SBN 112503)

glenn.pomerantz@mto.com

MUNGER, TOLLES & OLSON LLP

355 South Grand Avenue, Thirty-Fifth Floor

Los Angeles, California 90071-1560

Telephone: (213) 683-9100

Facsimile: (213) 687-3702

KELLY M. KLAUS (SBN 161091)

kelly.klaus@mto.com

ACHYUT J. PHADKE (SBN 261567)

achyut.phadke@mto.com

ADAM I. KAPLAN (SBN 268182)

adam.kaplan@mto.com

MUNGER, TOLLES & OLSON LLP

560 Mission Street, Twenty-Seventh Floor

San Francisco, California 94105-2907

Telephone: (415) 512-4000

Facsimile: (415) 512-4077

Attorneys for Defendants Motion Picture Association of America, Inc., The Walt Disney Company, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Universal City Studios LLC, and Warner Bros. Entertainment Inc.

KENNETH LEE MARSHALL (SBN 277092)

klmarshall@bryancave.com

ROGER MYERS (SBN 146164)

roger.myers@bryancave.com

ALEXANDRA C. WHITWORTH (SBN 303046)

alexandra.whitwork@bryanc…

BRYAN CAVE LLP

560 Mission Street, Suite 2500

San Francisco, California 94105

Tel: (415) 675-3400 /Fax: (415) 675-3434

Attorneys for Defendant National Association ofTheatre Owners

DAVID SCHACHMAN (Pro Hac Vice)

ds@schachmanlaw.com

LAW OFFICES OF DAVID SCHACHMAN,P.C.

55 West Monroe Street, Suite 2970

Chicago, Illinois 60603

Tel: (312) 427-9500/Fax: (312) 268-2425

One of the Attorneys for Plaintiff Timothy Forsyth

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

TIMOTHY FORSYTH, individually and on behalf of aclass of similarly situated individuals,

Plaintiff,

vs.

MOTION PICTURE ASSOCIATION OF AMERICA, INC., a New York corporation, THEWALT DISNEY COMPANY, a Delaware corporation, PARAMOUNT PICTURESCORPORATION, a Delaware corporation, SONY PICTURES ENTERTAINMENT INC., a Delaware corporation, TWENTIETHCENTURY FOX FILM CORPORATION, a Delaware corporation, UNIVERSAL CITYSTUDIOS LLC, a Delaware corporation, WARNER BROS. ENTERTAINMENT INC., a Delaware corporation, and NATIONALASSOCIATION OF THEATRE OWNERS, a New York corporation,

Defendants.

Case No. 3:16-cv-00935-RS

STIPULATION AND [PROPOSED] ORDER RE

[1] PLAINTIFF’S RESPONSE TO DEFENDANTS’ SPECIAL MOTION TO STRIKE PLAINTIFFS’ ACTION PURSUANT TO CALIFORNIA’S ANTI-SLAPP STATUTE AND MOTION TO DISMISS, AND

[2] CASE MANAGEMENT CONFERENCE AND RELATED DEADLINES

Judge: Hon. Richard Seeborg

STIPULATION AND [PROPOSED] ORDER

Case No. 3:16-cv-00935-RS

Case 3:16-cv-00935-RS Document 40 Filed 05/17/16 Page 2 of 7

On May 12, 2016, counsel for Plaintiff and all Defendants conferred telephonically, pursuant to Federal Rules of Civil Procedure 16(b) and 26(f), concerning scheduling issues in this matter. In that scheduling conference, counsel for all parties agreed that, subject to the Court’s approval, (1) the hearing on Defendants’ special motion to strike under California’s anti-SLAPP statute and motion to dismiss, currently set for Thursday, June 9, 2016, at 2:30 p.m. should be taken off calendar, and a new hearing date set following Plaintiff’s submission of their Opposition (as discussed herein) and the parties’ stipulation regarding a date for Defendants’ reply and a proposed hearing date; (2) the page limit for Plaintiff’s Opposition to the motions should be increased as set out below; (3) the correct corporate entity for one of the Defendants should be substituted into the case in place of an incorrectly named Defendant; and (4) the Case Management Conference (“CMC”), currently on calendar for Thursday, May 26, at 10:00 a.m. (Dkt. No. 24), should be taken off calendar, all deadlines set by or related to Rules 16(b) and 26(f) should be vacated and, following the Court’s ruling on Defendants’ dispositive motions, if necessary, the Court should set a new CMC within a month of the ruling on Defendants’ dispositive motions, if practicable, and the parties will submit their Rule 26(f) report no later than 14 days before the new CMC date.

Good cause exists for this stipulation based upon the following recitals:

A. On April 29, 2016, Defendants filed a joint motion to strike Plaintiff’s entire action pursuant to California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, and to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and Defendant National Association of Theater Owners filed a supplemental brief in support of same;

B. The hearing on Defendants’ motion to strike and dismiss the case is set for June 9,
2016. Under Civil Local Rule 7-3, Plaintiff’s Opposition brief would be due by Friday, May 13, and Defendants’ Reply would be due by Friday, May 20, 2016;

C. Defendants submitted in support of their motions a request for judicial notice, which Defendants maintain is proper for the portion of their motion under Rule 12(b)(6) as well as for the anti-SLAPP motion. Defendants do not contend that Plaintiff is required to respond to the anti-SLAPP motion with evidence in support of any factual allegations in the complaint that are

STIPULATION AND [PROPOSED] ORDER

Case No. 3:16-cv-00935-RS

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Case 3:16-cv-00935-RS Document 40 Filed 05/17/16 Page 3 of 7

otherwise sufficient to satisfy Plaintiff’s pleading burden under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“plaintiff’s obligation … requires more than labels or conclusions”). Defendants do contend that Plaintiff’s claims are constitutionally and legally barred, and that there are no non-conclusory allegations in the complaint that satisfy Plaintiff’s federal pleading burden or its burden in responding to the anti-SLAPP motion. Based on the foregoing, Plaintiff and Defendants agree that the anti-SLAPP motion should be considered as akin to a Rule 12(b)(6) motion to dismiss, and accordingly that the anti-SLAPP motion does not provide Plaintiff a basis for seeking discovery at this juncture, as might be the case if the anti-SLAPP motion were akin to a Rule 56 motion. See, e.g., Smith v. Payne, 2012 U.S. Dist. LEXIS 182345, *17-19 n.7 (N.D. Cal. Dec. 26, 2012). Defendants stipulate that by entering into this stipulation plaintiff has not waived any right to claim that the California anti-SLAPP statute should not be applied in any manner to this case. As a result, Plaintiff stipulates that he will not seek to conduct any discovery to respond to the motions;

D. Plaintiff’s counsel have informed Defendants that they need until Friday, July 15, 2016, to respond to Defendants’ motions because of ongoing briefing and a hearing on a motion for summary judgment in a pending case, and long standing scheduled travel plans outside of the country, both of which are scheduled for June. Plaintiff will make every effort to file his response prior to July 15, 2016, if possible. Defendants do not object to Plaintiff’s requested extension of time within which to respond to the motions, subject to the other provisions of this Stipulation and [Proposed] Order;

E. Once Plaintiff files his Opposition to Defendants’ motion, Defendants’ counsel will quickly review the filing and within one week propose to Plaintiff’s counsel a schedule for the filing of a Reply and a proposed hearing date on the Court’s available civil motion calendar (the parties agree that they will not propose a date that is less than three weeks from the date of the proposed Reply); Defendants do not expect to request a significant extension of the time within which to file their Reply but will need to coordinate their response with the various summer professional and travel conflicts for clients and counsel that will exist during the late July and August time-frame; the parties will file the aforementioned Stipulation and [Proposed] Order

STIPULATION AND [PROPOSED] ORDER

Case No. 3:16-cv-00935-RS

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Case 3:16-cv-00935-RS Document 40 Filed 05/17/16 Page 4 of 7

promptly after the meet-and-confer;

F. Plaintiff intends to file one combined brief in response to the separate anti-SLAPP motions filed by defendants and believes he will need up to 40 pages, instead of the 25 allotted by the Local Rules per motion, to address Defendants’ motions and supplemental brief. Defendants do not object to the requested extension and page limit request and anticipate that in the stipulation referenced in Paragraph E above, Defendants may request a modest increase of the otherwise applicable page limits for the Reply brief(s);

G. Plaintiff intended to name as Defendants all of the members of Defendant Motion Picture Association of America, Inc. (“MPAA”) but named The Walt Disney Company, which is not an MPAA member; Plaintiff therefore wishes to substitute Walt Disney Studios Motion Pictures, which is an MPAA member, in place of The Walt Disney Company (which is hereby dismissed) as a Defendant;

H. The CMC is currently on calendar for May 26, 2016, but the parties respectfully submit that it would be a more efficient use of judicial resources, as well as the resources of the parties, for they and the Court not to spend the time necessary to develop and set the discovery plan and case schedule mandated by Rules 16(b) and 26(f) until after the Court determines whether Plaintiff’s action will survive Defendants’ dispositive motions and, if any part of it does survive, which claims will continue and require discovery and which will not; and

I. No prior extensions of time have been sought for Plaintiff’s Opposition to Defendants’ motions.

NOW, THEREFORE, the parties hereby stipulate that, subject to the Court’s approval:

1. Plaintiff’s Opposition to Defendants’ motions is due on or before July 15, 2016;

2. Plaintiff’s Opposition brief to the anti-SLAPP motions shall not exceed 40 pages of text (exclusive of caption page and tables);

3. Defendants’ anti-SLAPP motion is akin to a Rule 12 and not a Rule 56 Motion. Plaintiff stipulates that he will not seek to conduct any discovery to respond to the anti-SLAPP motion or the motion to dismiss unless defendants’ reply memoranda attempts to convert the motions to Rule 56 motions. Defendants stipulate that by entering into this stipulation plaintiff has not waived any

STIPULATION AND [PROPOSED] ORDER

Case No. 3:16-cv-00935-RS

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Case 3:16-cv-00935-RS Document 40 Filed 05/17/16 Page 5 of 7

right to claim that the California anti-SLAPP statute should not be applied in any manner to this case;

4. Within one week of the filing of Plaintiff’s Opposition, the parties shall meet-andconfer on the date for Defendants to file their Reply brief(s) and a proposed hearing date on the motions, and the parties thereafter shall promptly submit a Stipulation and [Proposed] Order for the Court’s review;

5. Walt Disney Studios Motion Pictures is substituted in place of The Walt Disney Company as a Defendant in the case, and The Walt Disney Company is dismissed; and

6. The CMC currently scheduled for May 26, 2016 shall be vacated, and following the Court’s ruling the Defendants’ pending dispositive motions, the Court shall, if necessary, reschedule the CMC a trial setting conference for a date not to exceed one month from the Court’s ruling on Defendant’s dispositive motions, unless the Court finds good cause at the time to set the CMC for a later date.

IT IS SO STIPULATED.

DATED: May 15, 2016 LAW OFFICES OF DAVID SCHACHMAN, P.C.

By: /s/ David Schachman

DAVID SCHACHMAN

One of the Attorneys for Plaintiff Timothy Forsyth

DATED: May 15, 2016 MUNGER, TOLLES & OLSON LLP

By: /s/ Kelly M. Klaus

KELLY M. KLAUS

Attorneys for Defendants Motion Picture Association of America, Inc., The Walt Disney Company, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Universal City Studios LLC, and Warner Bros. Entertainment Inc.

STIPULATION AND [PROPOSED] ORDER

Case No. 3:16-cv-00935-RS

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Case 3:16-cv-00935-RS Document 40 Filed 05/17/16 Page 6 of 7

DATED: May 15, 2016

BRYAN CAVE LLP

By: /s/ K. Lee Marshall

K. LEE MARSHALL

Attorneys for Defendant National Association of Theatre Owners

STIPULATION AND [PROPOSED] ORDER

Case No. 3:16-cv-00935-RS

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Case 3:16-cv-00935-RS Document 40 Filed 05/17/16 Page 7 of 7

THE COURT FINDS GOOD CAUSE EXISTS FOR THE PARTIES’ STIPULATION AND ON THAT BASIS THE FOREGOING STIPULATION IS APPROVED AND IS SO ORDERED.

DATED: _________________________

5/17/16

_______________________________________

HONORABLE RICHARD SEEBORG

UNITED STATES DISTRICT JUDGE

STIPULATION AND [PROPOSED] ORDER

Case No. 3:16-cv-00935-RS

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