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Case 9:11-cv-00072-DWM Document 84           Filed 09/09/11 Page 1 of 10


Jonathan M. Herman (admitted pro hac vice)
DORSEY & WHITNEY LLP
51 West 52nd Street
New York, NY 10019-6119
Phone: (212) 415-9200
herman.jonathan@dorsey.com
F. Matthew Ralph
DORSEY & WHITNEY LLP
Suite 1500, 50 South Sixth Street
Minneapolis, MN 55402-1498
Phone: (612) 340-2600
ralph.matthew@dorsey.com
Attorneys for Defendant Penguin
Group (USA) Inc.

                IN THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MONTANA
                         MISSOULA DIVISION

                                            )
                                                Cause No. CV-11-72-M-DWM
MICHELE REINHART,                           )
DAN DONOVAN, and                            )   Judge: Donald W. Molloy
DEBORAH NETTER, individually and )
on behalf of all others similarly situated,
                                            )
                    Plaintiffs,             )   PENGUIN GROUP (USA) INC.’S
                                            )   PRELIMINARY PRETRIAL
v.                                              STATEMENT
                                            )
GREG MORTENSON, DAVID                       )
OLIVER RELIN, PENGUIN                       )
GROUP (USA), INC., a Delaware
corporation, and MC CONSULTING, )
INC., a Montana corporation,                )
                                            )
             Defendants.
                                            )

      Pursuant to the Court’s June 3, 2011 Order (Dkt. 12), Defendant Penguin

Group (USA), Inc. (“Penguin”) takes the following positions on the matters listed

in Local Rule 16.2(b) and Rule 16(b) and Form 52 of the Federal Rules of Civil

Procedure:
Case 9:11-cv-00072-DWM Document 84          Filed 09/09/11 Page 2 of 10



I.    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 Greg

Mortenson and David Oliver Relin, in 2006, and Stones Into Schools, a book

authored by Mortenson, in 2009 (collectively, “the Books”). In May 2011,

Plaintiffs commenced this putative class action alleging that portions of the Books

were false or inaccurate and that they are entitled to their money back and punitive

damages. On August 8, 2011, Penguin brought a motion to dismiss Plaintiffs’

Third Amended Complaint with prejudice because all of Penguin’s alleged conduct

is protected by the First Amendment, Penguin owed no duty to publish accurate

information, Plaintiffs fail to allege a cognizable injury, and Plaintiffs’ pleadings

are insufficient to state claims under Rules 8(a)(2) and 9(b) of the Federal Rules of

Civil Procedure.

      B.     Issues concerning jurisdiction and venue

      Penguin does not believe there are any issues concerning jurisdiction or

venue at this time. If the Court were ultimately to deny class certification on the

merits, then Penguin contends that the Court would lack subject-matter jurisdiction

because the named Plaintiffs allege no federal claims and allege minimal personal

damages 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 10



jurisdiction. If a new case were filed against Penguin arising from its publication

of the Books while this case is pending, Penguin would evaluate whether to bring a

motion, either in one of the forum courts or before the Judicial Panel on

Multidistrict 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 contends

that 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 Complaint

are that (1) Penguin is a publisher; (2) Penguin published the Books; (3) the

contents of the Books comprise matters of public interest that are protected by the

First Amendment; (4) the First Amendment protection extends to descriptions,

classifications, and advertisements of the Books; (5) accordingly, any alleged

statements that the Books were “true” or “nonfiction” are also protected by the

First Amendment; (6) Penguin did nothing that arguably might have lessened the

scope of First Amendment protection, and specifically did not take any actions to

assume a duty to verify the accuracy of the factual statements in the Books;

(7) Plaintiffs fail to identify any way in which the alleged misrepresentations

injured them other than by retrospectively diminishing their enjoyment of the

Books; 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 10



allege facts supporting each element of their claims, and they fail to plead fraud

and deceit claims with the requisite particularity.

      If Penguin is ever required to answer Plaintiffs’ complaint, Penguin may

identify 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 to

allege viable claims because the First Amendment bars their claims against

Penguin, Penguin owed Plaintiffs no duty to publish accurate information, and

Plaintiffs suffered no cognizable harm. Further, as noted above, Plaintiffs fail to

meet the pleading requirements under Fed.R.Civ.P. 8(a)(2) and 9(b). Plaintiffs

also contend that no class can be certified because individualized issues of reliance,

causation and damages predominate over any common questions. If Penguin is

ever required to answer Plaintiffs’ complaint, Penguin may identify additional

defenses and supplement this filing.

      E.     A computation of damages

      Penguin is not claiming damages.

      Penguin believes that, based on Plaintiffs’ allegations, Plaintiffs should be

able to provide a preliminary method for calculating their damages (e.g., number of

Books 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 10



from reading the Books) even though Plaintiffs may not have all the information

they 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 to

bring a motion to transfer and consolidate the cases into a single forum. Penguin

believes 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, and

that it entered into written contracts with the authors prior to the publication of the

Books, in which the authors represented and warranted to Penguin that “all

statements asserted as facts [in the Books] are based on the Author’s careful

investigation and research for accuracy.” Penguin is not prepared to stipulate to

any further facts at this time, although it believes, in principle, that the parties will

likely 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 is

certified, if ever. Penguin contends that no class can be certified. To the extent the

legal theories of Plaintiffs’ claims differ among states, the Court should address the

issue if and when it certifies a class, based on the arguments and evidence

presented.



                                           -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 amendment

could save the Third Amended Complaint and that dismissal with prejudice is

warranted. If the Court were to grant Plaintiffs an opportunity to further amend

their complaint for the fourth time, Penguin contends that such amendment should

be the last allowed pre-discovery. To the extent the Court does not limit the

number of additional times Plaintiffs may amend their Complaint, Penguin

proposes that the deadline to file motions to amend the pleadings or add parties

should be 2 months from any order denying Defendants’ motions for a protective

order or, if any such motion is granted, 2 months from any order denying any

Rule 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’ claims

fail as a matter of law due to the First Amendment, due to the lack of duty and

cognizable injury under common law, and due to Plaintiffs’ failure to meet the

pleading standards of Rules 8(a)(2) and 9(b).

      Penguin also believes that denial of class certification on the merits would

be dispositive in this action because the Court would no longer have subject-matter

jurisdiction 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 10



plaintiffs in state court. Penguin contends that no class can be certified due to

individualized issues of fact or lack of commonality or because common issues do

not predominate over individualized issues, and other deficiencies under Rule 23,

as discussed in more detail in Penguin’s brief in opposition to Plaintiffs’ motion for

class action certification.

      Penguin may identify other controlling issues of law on which to bring a

motion 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 with

Plaintiffs. Penguin does not believe that settlement discussions would be fruitful at

this time.

      K.     Suitability of special procedures

      Penguin cannot think of any suitable special procedures other than those

already 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 10



II.   PROPOSED CASE SCHEDULE

      Action                                    Deadline

1.    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 claim

2.    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 claim

3.    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 claim

4.    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 10



5.    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 claim

6.    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 claim

7.    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 claim

8.    Motion Deadline (dispositive motions and           30 days after Discovery
      discovery motions, fully briefed)                  Deadline

9.    Attorney Conference to prepare Final               30 days before Trial Date
      Pretrial Order

10.   Notice to Court of Technology Needs at             21 days before Trial Date
      Trial

11.   Deadline to file trial briefs, witness lists,      21 days before Trial Date
      motions in limine, jury instructions, final
      pretrial order

12.   Final Pretrial Conference                          14 days before Trial Date




                                            -9-
Case 9:11-cv-00072-DWM Document 84   Filed 09/09/11 Page 10 of 10



13.   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 claim


DATED: 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-

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Penguin's preliminary pretrial statement doc 84

  • 1. Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 1 of 10 Jonathan M. Herman (admitted pro hac vice) DORSEY & WHITNEY LLP 51 West 52nd Street New York, NY 10019-6119 Phone: (212) 415-9200 herman.jonathan@dorsey.com F. Matthew Ralph DORSEY & WHITNEY LLP Suite 1500, 50 South Sixth Street Minneapolis, MN 55402-1498 Phone: (612) 340-2600 ralph.matthew@dorsey.com Attorneys for Defendant Penguin Group (USA) Inc. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION ) Cause No. CV-11-72-M-DWM MICHELE REINHART, ) DAN DONOVAN, and ) Judge: Donald W. Molloy DEBORAH NETTER, individually and ) on behalf of all others similarly situated, ) Plaintiffs, ) PENGUIN GROUP (USA) INC.’S ) PRELIMINARY PRETRIAL v. STATEMENT ) GREG MORTENSON, DAVID ) OLIVER RELIN, PENGUIN ) GROUP (USA), INC., a Delaware corporation, and MC CONSULTING, ) INC., a Montana corporation, ) ) Defendants. ) Pursuant to the Court’s June 3, 2011 Order (Dkt. 12), Defendant Penguin Group (USA), Inc. (“Penguin”) takes the following positions on the matters listed in Local Rule 16.2(b) and Rule 16(b) and Form 52 of the Federal Rules of Civil Procedure:
  • 2. Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 2 of 10 I. 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 Greg Mortenson and David Oliver Relin, in 2006, and Stones Into Schools, a book authored by Mortenson, in 2009 (collectively, “the Books”). In May 2011, Plaintiffs commenced this putative class action alleging that portions of the Books were false or inaccurate and that they are entitled to their money back and punitive damages. On August 8, 2011, Penguin brought a motion to dismiss Plaintiffs’ Third Amended Complaint with prejudice because all of Penguin’s alleged conduct is protected by the First Amendment, Penguin owed no duty to publish accurate information, Plaintiffs fail to allege a cognizable injury, and Plaintiffs’ pleadings are insufficient to state claims under Rules 8(a)(2) and 9(b) of the Federal Rules of Civil Procedure. B. Issues concerning jurisdiction and venue Penguin does not believe there are any issues concerning jurisdiction or venue at this time. If the Court were ultimately to deny class certification on the merits, then Penguin contends that the Court would lack subject-matter jurisdiction because the named Plaintiffs allege no federal claims and allege minimal personal damages that are well below the minimum amount in controversy for diversity -2-
  • 3. Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 3 of 10 jurisdiction. If a new case were filed against Penguin arising from its publication of the Books while this case is pending, Penguin would evaluate whether to bring a motion, either in one of the forum courts or before the Judicial Panel on Multidistrict 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 contends that 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 Complaint are that (1) Penguin is a publisher; (2) Penguin published the Books; (3) the contents of the Books comprise matters of public interest that are protected by the First Amendment; (4) the First Amendment protection extends to descriptions, classifications, and advertisements of the Books; (5) accordingly, any alleged statements that the Books were “true” or “nonfiction” are also protected by the First Amendment; (6) Penguin did nothing that arguably might have lessened the scope of First Amendment protection, and specifically did not take any actions to assume a duty to verify the accuracy of the factual statements in the Books; (7) Plaintiffs fail to identify any way in which the alleged misrepresentations injured them other than by retrospectively diminishing their enjoyment of the Books; 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-
  • 4. Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 4 of 10 allege facts supporting each element of their claims, and they fail to plead fraud and deceit claims with the requisite particularity. If Penguin is ever required to answer Plaintiffs’ complaint, Penguin may identify 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 to allege viable claims because the First Amendment bars their claims against Penguin, Penguin owed Plaintiffs no duty to publish accurate information, and Plaintiffs suffered no cognizable harm. Further, as noted above, Plaintiffs fail to meet the pleading requirements under Fed.R.Civ.P. 8(a)(2) and 9(b). Plaintiffs also contend that no class can be certified because individualized issues of reliance, causation and damages predominate over any common questions. If Penguin is ever required to answer Plaintiffs’ complaint, Penguin may identify additional defenses and supplement this filing. E. A computation of damages Penguin is not claiming damages. Penguin believes that, based on Plaintiffs’ allegations, Plaintiffs should be able to provide a preliminary method for calculating their damages (e.g., number of Books sold multiplied by average purchase price, less the value that they derived -4-
  • 5. Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 5 of 10 from reading the Books) even though Plaintiffs may not have all the information they 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 to bring a motion to transfer and consolidate the cases into a single forum. Penguin believes 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, and that it entered into written contracts with the authors prior to the publication of the Books, in which the authors represented and warranted to Penguin that “all statements asserted as facts [in the Books] are based on the Author’s careful investigation and research for accuracy.” Penguin is not prepared to stipulate to any further facts at this time, although it believes, in principle, that the parties will likely 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 is certified, if ever. Penguin contends that no class can be certified. To the extent the legal theories of Plaintiffs’ claims differ among states, the Court should address the issue if and when it certifies a class, based on the arguments and evidence presented. -5-
  • 6. 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 amendment could save the Third Amended Complaint and that dismissal with prejudice is warranted. If the Court were to grant Plaintiffs an opportunity to further amend their complaint for the fourth time, Penguin contends that such amendment should be the last allowed pre-discovery. To the extent the Court does not limit the number of additional times Plaintiffs may amend their Complaint, Penguin proposes that the deadline to file motions to amend the pleadings or add parties should be 2 months from any order denying Defendants’ motions for a protective order or, if any such motion is granted, 2 months from any order denying any Rule 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’ claims fail as a matter of law due to the First Amendment, due to the lack of duty and cognizable injury under common law, and due to Plaintiffs’ failure to meet the pleading standards of Rules 8(a)(2) and 9(b). Penguin also believes that denial of class certification on the merits would be dispositive in this action because the Court would no longer have subject-matter jurisdiction and Plaintiffs would be unlikely to pursue this litigation as individual -6-
  • 7. Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 7 of 10 plaintiffs in state court. Penguin contends that no class can be certified due to individualized issues of fact or lack of commonality or because common issues do not predominate over individualized issues, and other deficiencies under Rule 23, as discussed in more detail in Penguin’s brief in opposition to Plaintiffs’ motion for class action certification. Penguin may identify other controlling issues of law on which to bring a motion 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 with Plaintiffs. Penguin does not believe that settlement discussions would be fruitful at this time. K. Suitability of special procedures Penguin cannot think of any suitable special procedures other than those already 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-
  • 8. Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 8 of 10 II. PROPOSED CASE SCHEDULE Action Deadline 1. 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 claim 2. 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 claim 3. 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 claim 4. 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-
  • 9. Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 9 of 10 5. 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 claim 6. 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 claim 7. 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 claim 8. Motion Deadline (dispositive motions and 30 days after Discovery discovery motions, fully briefed) Deadline 9. Attorney Conference to prepare Final 30 days before Trial Date Pretrial Order 10. Notice to Court of Technology Needs at 21 days before Trial Date Trial 11. Deadline to file trial briefs, witness lists, 21 days before Trial Date motions in limine, jury instructions, final pretrial order 12. Final Pretrial Conference 14 days before Trial Date -9-
  • 10. Case 9:11-cv-00072-DWM Document 84 Filed 09/09/11 Page 10 of 10 13. 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 claim DATED: 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-