Free Reply to Response to Motion - District Court of California - California

Case 3:07-cv-02132-DMS-AJB

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Filed 01/30/2008

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David Israel, Esq. (LSB No. 7174) (SPACE BELOW FOR FILING STAMP ONLY) Bryan C. Shartle, Esq. (LSB No. 27640) SESSIONS, FISHMAN, NATHAN & ISRAEL, L.L.P. Lakeway Two, Suite 200 3850 North Causeway Boulevard Metairie, LA 70002-1752 Telephone: (504) 828-3700 Facsimile: (504) 828-3737 Debbie P. Kirkpatrick, Esq. (CSB No. 207112) SESSIONS, FISHMAN, NATHAN & ISRAEL, L.L.P. 3667 Voltaire Street San Diego, CA 92106 Telephone: (619) 758-1891 Facsimile: (619) 222-3667 Attorney for Defendant UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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Defendant's Reply Memorandum Case No. 07-cv-02132-DMS-AJB

) ) Plaintiff, ) ) -against) ) NATIONWIDE RECOVERY SYSTEMS, LTD., ) ) Defendant. ) ) ) ) ) ) ) ) __________________________________________)

JAMES M. KINDER,

Case No. 07-cv-02132-DMS-AJB Judge: Dana M. Sabraw Mag. Judge: Anthony J. Battaglia
DEFENDANT'S REPLY MEMORANDUM IN RESPONSE TO PLAINTIFF'S PARTIAL OPPOSITION TO DEFENDANT'S MOTION FOR CONSOLIDATION OF ACTIONS

Date: February 8, 2008 Time: 1:30 P.M. Courtroom: 10

Defendant, Nationwide Recovery Systems, Ltd. ("NRS"), submits this reply memorandum in response to the partial opposition filed by plaintiff, James M. Kinder, in response to NRS's Motion for Consolidation of Actions. NRS respectfully shows:

Case 3:07-cv-02132-DMS-AJB

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1.

With one exception, plaintiff does not oppose consolidation of the related

actions. Like NRS, plaintiff requests that all of the related actions be consolidated, except for James M. Kinder v. Bankfirst, Case No. 07cv877 DMS(POR). Plaintiff alleges that he and the defendant in the Bankfirst case "have expended considerable attorney time and resources into the litigation and it should proceed forward as scheduled." Docket No. 17, at p. 3. NRS disagrees and requests that all of the cases be consolidated, including the Bankfirst case. 2. Undersigned counsel has spoken with defense counsel in the Bankfirst case,

who supports the requested consolidation. As plaintiff admits, discovery was just issued in the Bankfirst case and no depositions have been scheduled. contentions, the Bankfirst case is not far along. 3. In James M. Kinder v. Harrah's Entertainment, Inc., Case No. 07cv2226 Contrary to plaintiff's

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Defendant's Reply Memorandum Case No. 07-cv-02132-DMS-AJB

DMS(AJB), defendant Harrah's filed an opposition to NRS's consolidation motion. See Docket No. 25, Case No. 07-2226. Harrah's contends that its case should not be consolidated because different facts and claims are present in its lawsuit. Id. at pp. 5-8. NRS disagrees. 4. All of the cases relate to telephone calls made to number 619-999-9999 (the

"9s Number"), which plaintiff obtained and had allegedly assigned to his pager. And in all of the cases, plaintiff alleges the defendant violated the Telephone Consumer Protection Act of

5.

The fact that the Harrah's lawsuit includes additional claims not included in

the other lawsuits does not justify excluding the lawsuit from the consolidation. Indeed, these "additional claims" are related to the TCPA claims included in all of the lawsuits. The "additional claims" are merely "piggyback" claims based upon alleged violations of the TCPA, e.g., plaintiff's unfair business practice claim is predicated upon an alleged violation

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of the TCPA.

When the TCPA claims are dismissed, these "additional claims" should

likewise be dismissed as a matter of law. 6. Consolidation of the related cases under Fed. R. Civ. P. 42(a) is appropriate.

Consolidation of these cases will "avoid the possible inconsistent adjudication of common factual and legal issues and lessen the time and expense required for all parties." In re Cree, Inc., Securities Litigation, 219 F.R.D. 369, 371 (M.D. N.C. 2003). 7. In addition to seeking consolidation of these cases, NRS will seek to stay

discovery in all of the related cases, pending a ruling on plaintiff's TCPA claims. As noted in earlier filings, every court which has ruled on plaintiff's TCPA claims has dismissed the claims, including this Court in James M. Kinder v. Associates Housing Finance, LLC, et al., Case No. 99-02411 (S.D. Cal. 1999) (Jones, J.). In light of these rulings, staying discovery in

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Defendant's Reply Memorandum Case No. 07-cv-02132-DMS-AJB

these cases, to avoid unnecessary costs and expenses, is appropriate. WHEREFORE, The Court should grant NRS's Motion for Consolidation of Actions due to the common questions of law and fact involved in the related Kinder cases. Consolidation will promote judicial economy and consistent outcomes in these virtually identical cases. Dated: January 30, 2008 SESSIONS, FISHMAN, NATHAN & ISRAEL, L.L.P. /s/ Debbie P. Kirkpatrick Debbie P. Kirkpatrick Attorney for Defendant, Nationwide Recovery Systems, Ltd.
N:\Nationwide Recovery Systems Ltd (8949)\Kinder, James (8949-07-22323)\Pleadings\Reply to Partial Opp. to Cons..doc