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Penguin's preliminary pretrial statement doc 84
 

Penguin's preliminary pretrial statement doc 84

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    Penguin's preliminary pretrial statement doc 84 Penguin's preliminary pretrial statement doc 84 Document Transcript

    • Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 1 of 10Jonathan M. Herman (admitted pro hac vice)DORSEY & WHITNEY LLP51 West 52nd StreetNew York, NY 10019-6119Phone: (212) 415-9200herman.jonathan@dorsey.comF. Matthew RalphDORSEY & WHITNEY LLPSuite 1500, 50 South Sixth StreetMinneapolis, MN 55402-1498Phone: (612) 340-2600ralph.matthew@dorsey.comAttorneys for Defendant PenguinGroup (USA) Inc. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION ) Cause No. CV-11-72-M-DWMMICHELE REINHART, )DAN DONOVAN, and ) Judge: Donald W. MolloyDEBORAH NETTER, individually and )on behalf of all others similarly situated, ) Plaintiffs, ) PENGUIN GROUP (USA) INC.’S ) PRELIMINARY PRETRIALv. STATEMENT )GREG MORTENSON, DAVID )OLIVER RELIN, PENGUIN )GROUP (USA), INC., a Delawarecorporation, and MC CONSULTING, )INC., a Montana corporation, ) ) Defendants. ) Pursuant to the Court’s June 3, 2011 Order (Dkt. 12), Defendant PenguinGroup (USA), Inc. (“Penguin”) takes the following positions on the matters listedin Local Rule 16.2(b) and Rule 16(b) and Form 52 of the Federal Rules of CivilProcedure:
    • Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 2 of 10I. PRELIMINARY PRETRIAL STATEMENT TOPICS A. A brief factual outline of the case Penguin. Penguin is a publisher headquartered in New York, New York.Penguin published Three Cups of Tea, a book co-authored by Defendants GregMortenson and David Oliver Relin, in 2006, and Stones Into Schools, a bookauthored by Mortenson, in 2009 (collectively, “the Books”). In May 2011,Plaintiffs commenced this putative class action alleging that portions of the Bookswere false or inaccurate and that they are entitled to their money back and punitivedamages. On August 8, 2011, Penguin brought a motion to dismiss Plaintiffs’Third Amended Complaint with prejudice because all of Penguin’s alleged conductis protected by the First Amendment, Penguin owed no duty to publish accurateinformation, Plaintiffs fail to allege a cognizable injury, and Plaintiffs’ pleadingsare insufficient to state claims under Rules 8(a)(2) and 9(b) of the Federal Rules ofCivil Procedure. B. Issues concerning jurisdiction and venue Penguin does not believe there are any issues concerning jurisdiction orvenue at this time. If the Court were ultimately to deny class certification on themerits, then Penguin contends that the Court would lack subject-matter jurisdictionbecause the named Plaintiffs allege no federal claims and allege minimal personaldamages that are well below the minimum amount in controversy for diversity -2-
    • Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 3 of 10jurisdiction. If a new case were filed against Penguin arising from its publicationof the Books while this case is pending, Penguin would evaluate whether to bring amotion, either in one of the forum courts or before the Judicial Panel onMultidistrict Litigation, to transfer and consolidate the cases in a single forum. C. The factual basis of each claim or defense advanced by the party As Penguin has argued in support of its motion to dismiss, Penguin contendsthat Plaintiffs have not alleged a sufficient factual basis for any of their claims.The factual bases for Penguin’s motion to dismiss the Third Amended Complaintare that (1) Penguin is a publisher; (2) Penguin published the Books; (3) thecontents of the Books comprise matters of public interest that are protected by theFirst Amendment; (4) the First Amendment protection extends to descriptions,classifications, and advertisements of the Books; (5) accordingly, any allegedstatements that the Books were “true” or “nonfiction” are also protected by theFirst Amendment; (6) Penguin did nothing that arguably might have lessened thescope of First Amendment protection, and specifically did not take any actions toassume a duty to verify the accuracy of the factual statements in the Books;(7) Plaintiffs fail to identify any way in which the alleged misrepresentationsinjured them other than by retrospectively diminishing their enjoyment of theBooks; and (8) Plaintiffs fail to meet the pleading requirements of Rules 8(a)(2)and 9(b) because all of their allegations against Penguin are conclusory, they fail to -3-
    • Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 4 of 10allege facts supporting each element of their claims, and they fail to plead fraudand deceit claims with the requisite particularity. If Penguin is ever required to answer Plaintiffs’ complaint, Penguin mayidentify additional factual bases for additional defenses and supplement this filing. D. The legal theory underlying each claim or defense, including, where necessary to a reasonable understanding of the claim or defense, citations to authority As Penguin has argued in support of its motion to dismiss, Plaintiffs fail toallege viable claims because the First Amendment bars their claims againstPenguin, Penguin owed Plaintiffs no duty to publish accurate information, andPlaintiffs suffered no cognizable harm. Further, as noted above, Plaintiffs fail tomeet the pleading requirements under Fed.R.Civ.P. 8(a)(2) and 9(b). Plaintiffsalso contend that no class can be certified because individualized issues of reliance,causation and damages predominate over any common questions. If Penguin isever required to answer Plaintiffs’ complaint, Penguin may identify additionaldefenses and supplement this filing. E. A computation of damages Penguin is not claiming damages. Penguin believes that, based on Plaintiffs’ allegations, Plaintiffs should beable to provide a preliminary method for calculating their damages (e.g., number ofBooks sold multiplied by average purchase price, less the value that they derived -4-
    • Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 5 of 10from reading the Books) even though Plaintiffs may not have all the informationthey need to perform that actual calculation. F. The pendency or disposition of any related state or federal litigation Currently there are no related state or federal cases pending. As noted above, if a new case were filed, Penguin would evaluate whether tobring a motion to transfer and consolidate the cases into a single forum. Penguinbelieves that any such decision would be specific to the circumstances presented. G. Proposed stipulations of fact and the parties’ understanding as to what law applies Penguin will stipulate that it is a publisher, that it published the Books, andthat it entered into written contracts with the authors prior to the publication of theBooks, in which the authors represented and warranted to Penguin that “allstatements asserted as facts [in the Books] are based on the Author’s carefulinvestigation and research for accuracy.” Penguin is not prepared to stipulate toany further facts at this time, although it believes, in principle, that the parties willlikely be able to agree on certain basic facts regarding the publication of the Books. Penguin believes that Montana law applies to the claims until a class iscertified, if ever. Penguin contends that no class can be certified. To the extent thelegal theories of Plaintiffs’ claims differ among states, the Court should address theissue if and when it certifies a class, based on the arguments and evidencepresented. -5-
    • Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 6 of 10 H. Proposed deadlines relating to joinder of parties or amendment of the pleadings Per Penguin’s motion to dismiss, Penguin contends that no amendmentcould save the Third Amended Complaint and that dismissal with prejudice iswarranted. If the Court were to grant Plaintiffs an opportunity to further amendtheir complaint for the fourth time, Penguin contends that such amendment shouldbe the last allowed pre-discovery. To the extent the Court does not limit thenumber of additional times Plaintiffs may amend their Complaint, Penguinproposes that the deadline to file motions to amend the pleadings or add partiesshould be 2 months from any order denying Defendants’ motions for a protectiveorder or, if any such motion is granted, 2 months from any order denying anyRule 12(b)(6) motion as to any claim. I. Identification of controlling issues of law suitable for pretrial disposition Per Penguin’s motion to dismiss, Penguin contends that Plaintiffs’ claimsfail as a matter of law due to the First Amendment, due to the lack of duty andcognizable injury under common law, and due to Plaintiffs’ failure to meet thepleading standards of Rules 8(a)(2) and 9(b). Penguin also believes that denial of class certification on the merits wouldbe dispositive in this action because the Court would no longer have subject-matterjurisdiction and Plaintiffs would be unlikely to pursue this litigation as individual -6-
    • Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 7 of 10plaintiffs in state court. Penguin contends that no class can be certified due toindividualized issues of fact or lack of commonality or because common issues donot predominate over individualized issues, and other deficiencies under Rule 23,as discussed in more detail in Penguin’s brief in opposition to Plaintiffs’ motion forclass action certification. Penguin may identify other controlling issues of law on which to bring amotion for summary judgment. J. Status of any settlement discussions and prospects for compromise of the case To date, Penguin has not engaged in any settlement discussions withPlaintiffs. Penguin does not believe that settlement discussions would be fruitful atthis time. K. Suitability of special procedures Penguin cannot think of any suitable special procedures other than thosealready indicated in its filings. L. Other Topics • Penguin contends that Plaintiffs’ claims against it for punitive damages and liability-as-principal are frivolous and should be dismissed; • Penguin does not consent to the appointment of a magistrate judge to preside over dispositive motions or at trial; • Penguin believes there is no reason to vary the limits on discovery in the Federal Rules in this action. -7-
    • Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 8 of 10II. PROPOSED CASE SCHEDULE Action Deadline1. Rule 26(a) Initial Disclosures 14 days from any order denying Defendants’ motions for protective order or, if any such motion is granted, 14 days from any order denying any Rule 12(b)(6) motion as to any claim2. Deadline to File Motions to Amend 2 months from any order Pleadings or Add Parties denying Defendants’ motions for protective order or, if any such motion is granted, 2 months from any order denying any Rule 12(b)(6) motion as to any claim3. Class Certification Motions Already made and briefed; but, if Plaintiffs’ motion is denied as premature, with leave to move gain, then 3 months from any order denying Defendants’ motions for protective order or, if any such motion is granted, 3 months from any order denying any Rule 12(b)(6) motion as to any claim4. Settlement Conference 9 months from any order denying Defendants’ motions for protective order or, if any such motion is granted, 9 months from any order denying any Rule 12(b)(6) motion as to any claim -8-
    • Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 9 of 105. Expert Reports (Plaintiffs’ liability and 10 months from any order damages reports; Defendants’ liability denying Defendants’ motions report) for protective order or, if any such motion is granted, 10 months from any order denying any Rule 12(b)(6) motion as to any claim6. Expert Rebuttal Reports (Defendants’ 11 months from any order damages report, et al.) denying Defendants’ motions for protective order or, if any such motion is granted, 11 months from any order denying any Rule 12(b)(6) motion as to any claim7. Discovery Deadline 12 months from any order denying Defendants’ motions for protective order or, if any such motion is granted, 12 months from any order denying any Rule 12(b)(6) motion as to any claim8. Motion Deadline (dispositive motions and 30 days after Discovery discovery motions, fully briefed) Deadline9. Attorney Conference to prepare Final 30 days before Trial Date Pretrial Order10. Notice to Court of Technology Needs at 21 days before Trial Date Trial11. Deadline to file trial briefs, witness lists, 21 days before Trial Date motions in limine, jury instructions, final pretrial order12. Final Pretrial Conference 14 days before Trial Date -9-
    • Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 10 of 1013. Trial Date 16 months from any order denying Defendants’ motions for protective order or, if any such motion is granted, 16 months from any order denying any Rule 12(b)(6) motion as to any claimDATED: September 9, 2011 DORSEY & WHITNEY LLP s/ F. Matthew Ralph Jonathan M. Herman (admitted pro hac vice) F. Matthew Ralph Attorneys for Defendant Penguin Group (USA) Inc. -10-