Opinion
2:20-cv-02292-GMN-BNW
04-23-2021
ANTHONY SESSA and MARK SESSA, on behalf of themselves and all others similarly situated, Plaintiffs, v. ANCESTRY.COM OPERATIONS INC., a Virginia Corporation; ANCESTRY.COM INC., a Delaware Corporation; and ANCESTRY.COM LLC, a Delaware Limited Liability Company, Defendants.
Miles N. Clark, Esq. Nevada Bar No. 13848 Matthew I. Knepper, Esq. Nevada Bar No. 12796 KNEPPER & CLARK LLC Michael F. Ram (Pro Hac Vice) Marie N. Appel (Pro Hac Vice) MORGAN & MORGAN COMPLEX LITIGATION GROUP Benjamin R. Osborn (Pro Hac Vice) Shaina R. Plaksin, Esq., SBN 13935 Counsel for Plaintiffs and the Proposed Class COHEN-JOHNSON, LLC H. Stan Johnson, Esq. (SBN: 0265) QUINN EMANUEL URQUHART & SULLIVAN, LLP Shon Morgan (Pro Hac Vice) John W. Baumann (Pro Hac Vice) Cristina Henriquez (Bar No. 317445) Attorneys for ANCESTRY.COM OPERATIONS INC., ANCESTRY.COM INC., and ANCESTRY.COM LLC
Complaint filed: Dec. 17, 2020
Miles N. Clark, Esq. Nevada Bar No. 13848
Matthew I. Knepper, Esq. Nevada Bar No. 12796KNEPPER & CLARK LLC
Michael F. Ram (Pro Hac Vice)
Marie N. Appel (Pro Hac Vice)
MORGAN & MORGAN COMPLEX LITIGATION GROUP
Benjamin R. Osborn (Pro Hac Vice)
Shaina R. Plaksin, Esq., SBN 13935
Counsel for Plaintiffs and the Proposed Class
COHEN-JOHNSON, LLC
H. Stan Johnson, Esq. (SBN: 0265)
QUINN EMANUEL URQUHART & SULLIVAN, LLP
Shon Morgan (Pro Hac Vice)
John W. Baumann (Pro Hac Vice)
Cristina Henriquez (Bar No. 317445)
Attorneys for ANCESTRY.COM OPERATIONS INC., ANCESTRY.COM INC., and ANCESTRY.COM LLC
JOINT DISCOVERY PLAN AND PROPOSED ORDER
BRENDAWEKSLER, UNITED STATES MAGISTRATE JUDGE
The parties to the above-entitled action jointly submit this JOINT DISCOVERY PLAN & PROPOSED ORDER pursuant to Civil Local Rule 26-1.
1. Discovery Cut-Off Date.
Plaintiffs' Position: Ancestry filed an anti-SLAPP motion to strike on February 10, 2021 (Dkt. No. 19). Plaintiffs believe the motion is baseless. A similar anti-SLAPP motion by Ancestry was denied in a related California case. Callahan v. Ancestry.com Inc., No. 3:20-cv-08437-LB, 2021 WL 783524, at *11 (N.D. Cal., Mar. 1, 2021). However, because an anti-SLAPP motion triggers an automatic stay of discovery on topics unrelated to the anti-SLAPP motion itself, Plaintiffs cannot yet commence discovery. Plaintiffs anticipate completing discovery within 12 months of the entry of a dispositive ruling on the anti-SLAPP motion.
Ancestry Position: As set forth in Ancestry's motion to dismiss and strike, Ancestry disputes the Court's subject-matter jurisdiction based on plaintiffs' lack of Article III standing and also disputes personal jurisdiction over Ancestry. See ECF No. 19. In addition, Ancestry's filing of the motion to strike pursuant to Nevada's anti-SLAPP statute automatically stays discovery pending resolution of the motion. Nev. Rev. Stat. § 41.660(3)(e); See also Foley v. Pont, No. 2:11-CV-01769-ECR, 2012 WL 2503074, at *5 (D. Nev. June 27, 2012) (“staying discovery pending the outcome of the [] Defendants' antiSLAPP motion to dismiss is warranted under NRS 41.660(3).”). Accordingly, it is Ancestry's position that it is premature to engage in discovery or to try to establish a schedule for discovery. This is especially true in light of the automatic right to appeal the denial of an anti-SLAPP motion, which appeal would result in an automatic stay of the district court proceedings (including discovery) until the appeal is resolved.
As described more fully in Ancestry's motion to dismiss, this case is one of three virtually identical, class actions in different federal courts that plaintiffs' counsel have filed. The first has already been dismissed for reasons that apply equally here. See Callahan v. Ancestry.com, Case No. 20-cv-08437-LB, 2021 WL 783524, *4-6 (N.D. Cal. Mar. 1, 2021). A motion to dismiss in the second action will be fully briefed by the end of the month. See Bonilla v. Ancestry.com, No. 1:20-cv-07390 (N.D. Ill.).
2. Amending the Pleadings and Adding Parties, Expert Disclosures, Dispositive Motions, and Pretrial Order.
Because of Ancestry's pending anti-SLAPP motion, the parties are unable to estimate a specific date for close of discovery. For the same reason, they are not yet able to provide dates for the various deadlines that are measured by reference to the close of discovery. Should this case proceed past the pleadings, Ancestry (1) anticipates filing a motion for summary judgment and a motion to deny class certification, and (2) may engage experts, including with respect to potential class certification issues.
3. Fed.R.Civ.P. 26(a) Disclosures
Plaintiffs' Position: Ancestry has taken the position it is not obligated to provide Rule 26(a) disclosures while the anti-SLAPP motion is pending. Plaintiffs are prepared to exchange Rule 26(a) disclosures at any time.
Ancestry Position: Ancestry objects to the initial disclosure requirement set forth in Federal Rule of Civil Procedure 26(a). Ancestry has filed a motion to strike plaintiffs' complaint pursuant to Nevada's anti-SLAPP statute. Accordingly, discovery is automatically stayed pending resolution of the motion and the disposition of any appeal from the ruling on the motion. Nev. Rev. Stat. § 41.660(3)(e); Foley v. Pont, No. 2:11-CV-01769-ECR, 2012 WL 2503074, at *5 (D. Nev. June 27, 2012) (“staying discovery pending the outcome of the [] Defendants' anti-SLAPP motion to dismiss is warranted under NRS 41.660(3).”).
4. Alternative Dispute Resolution
The parties have conferred and agree any mediation would be most productive following resolution of Ancestry's pending motion to dismiss and anti-SLAPP motion to strike. If this case survives the pending motion to dismiss and strike, the parties also agree, subject to approval from the Court, to participate in private mediation.
5. Alternative Forms of Case Disposition
The parties certify that they considered trial by magistrate judge and use of the Short Trial Program. The parties agree that neither are appropriate for this matter.
6. Electronic Evidence
Discovery has not yet begun as resolution of Ancestry's anti-SLAPP motion is pending. Thus, the parties have not yet discussed whether they intend to present evidence in electronic format to jurors.
Respectfully submitted.
ORDER
The Court will construe ECF No. 29 as a stipulation to stay discovery pending a decision on ECF No. 19. The parties' stipulation is GRANTED. IT IS ORDERED that the parties must file a new proposed discovery plan and scheduling order within 14 days of a decision on ECF No. 19, unless the case is dismissed in its entirety without leave to amend.
IT IS SO ORDERED