Opinion
Case No. CV 00-01077 DDP (CWx)
October 17, 2000
1. ORDER CONTINUING MOTION TO DISMISS AND ADOPTING BRIEFING SCHEDULE
2. ORDER DENYING MOTION FOR CLASS CERTIFICATION
This matter comes before the Court on the plaintiffs' motion for class certification and the defendants' motion to dismiss the plaintiffs' second amended complaint.
I. Motion to Dismiss
The plaintiffs' opposition to the defendants' motion to dismiss addresses none of the substantive justifications for dismissal argued in the defendants' moving papers. Instead, the plaintiffs have opposed the motion to dismiss solely on the ground that defendants' counsel failed to meet and confer as required by Local Rule 7.4.1 prior to filing their motion.
Local Rule 7.4.1 states:
[C]ounsel contemplating the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution. If the proposed motion is one which under the F. R. Civ. P. must be filed within a specified period of time (e.g., a motion to dismiss pursuant to F. R. Civ. P. 12(b) . . .), then this conference shall take place at least five (5) days prior to the last day for filing the motion. . . .
Here, defense counsel timely sent the plaintiffs a letter notifying them that the defendants intended to file a motion to dismiss. However, the rule clearly contemplates a two-way discussion. According to Webster's Dictionary, to "discuss" means "to speak together about" or "talk over". The Court does not find letter-writing sufficient to satisfy Local Rule 7.4.1 in this case. The parties must engage in an in-person or telephonic "discussion" to satisfy the rule.
The plaintiffs must file an opposition to the defendants' motion to dismiss addressing the defendants' substantive arguments before the Court can consider the merits of the motion. Therefore, the Court hereby continues the defendants' motion to dismiss and adopts the following briefing schedule.
Plaintiffs File Opposition: October 30, 2000 Defendants File Reply: November 6, 2000 Hearing Date: November 13, 2000, 10:00 a.m.
II. Motion for Class Certification
The Court denies without prejudice the plaintiffs' motion for class certification because the plaintiffs did not adequately brief the issues. The plaintiffs raised the majority of their substantive arguments for the first time in their reply brief. The Ninth Circuit has held that the Court need not, and does not, consider arguments raised for the first time in a reply brief. See e.g., United States v. Cox, 7 F.3d 1458, 1463 (9th Cir. 1993). Therefore, the Court denies the plaintiffs' motion without prejudice.
III. Conclusion
For the reasons set forth above, the Court hereby continues the defendants' motion to dismiss and denies without prejudice the plaintiffs' motion for class certification.
[PROPOSED] ORDER RE MOTION TO DISMISS SECOND AMENDED COMPLAINT
On October 16, 2000, Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint came on regularly for hearing.
Upon consideration of the papers submitted, the Court finds that there is good cause for granting the requested relief.
IT IS THEREFORE ORDERED THAT Plaintiffs' Second Amended Complaint be dismissed.