Free Order - District Court of California - California

Case 3:07-cv-02193-LAB-WMC

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Filed 04/09/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 Plaintiffs, 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The court finds the briefing associated with Defendant's Motion To Dismiss First Amended Complaint ("Motion"), including exhibits associated with the moving and opposition papers, suggests the court may decide certain dispositve issues early in this putative class action if the parties provide additional briefing with evidentiary clarifications. In particular, it appears to the court the named plaintiff's standing to represent the putative class can be established or disproved, among other things, through substantiation whether he received a refund of the $19.00 overcharge for the permitting of the hot water heater, as defendant contends, whether he concedes or can disprove his hot water heater was actually permitted before he filed his Complaint and his First Amended Complaint, whether he was actually injured by any delay in obtaining the permit, and whether "unreasonable delay" is a -107cv2193

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

RICHARD STANFORD, individually and on behalf of all other persons similarly situated and on behalf of the general public, vs. HOME DEPOT U.S.A., INC., a Delaware corporation; and DOES 1 through 100, inclusive, Defendants.

CASE NO. 07cv2193-LAB (WMc) ORDER REQUIRING ADDITIONAL BRIEFING

Case 3:07-cv-02193-LAB-WMC

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Filed 04/09/2008

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cognizable legal theory of recovery in these circumstances, with or without actual injury resulting from such delay. The court recognizes consideration of such additional evidence, argument, and authority will trigger conversion of the standards for deciding a Motion To Dismiss presented under FED ,R.CIV.P. ("Rule") 12(b)(6) to the standards applicable under Rule 56. The parties are entitled to notice and the opportunity to fully brief those narrow issues before the court decides the Motion. For the forgoing reasons, IT IS HEREBY ORDERED on or before April 21, 2008, plaintiff shall provide the court with a Supplemental Brief and supporting evidence, not to exceed a total of ten (10) pages, on the narrow issue of his standing to represent the putative class as defined in the First Amended Complaint, with the understanding that the court intends to apply Rule 56 standards to decide the Motion issues associated with the permitting of and charges for his hot water heater purchase forming the subject matter of this litigation. Alternatively, plaintiff may file a notice of voluntary dismissal should he determine on the law and the facts he lacks standing to represent the putative class. IT IS FURTHER ORDERED Home Depot may supplement its motion papers in response to plaintiff's supplemental briefing, including any additional pertinent evidence or argument associated with the standing issues, not to exceed a total of ten (10) pages, on or before April 28, 2008, and plaintiff may file a Reply to defendant's supplemental briefing, not to exceed a total of five (5) pages, on or before May 5, 2008. The matter will remain under submission thereafter for decision on the papers, absent further court order. IT IS SO ORDERED. DATED: April 8, 2008

HONORABLE LARRY ALAN BURNS United States District Judge

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