Free Brief - District Court of California - California

Case 3:07-cv-04809-CRB

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SCHIFFRIN BARROWAY TOPAZ & KESSLER, LLP KATHERINE B. BORNSTEIN ­ 249926 [email protected] 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 Attorneys for Plaintiffs PATRICK STILLMOCK AND JEANNE STILLMOCK

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

PATRICK AND JEANNE STILLMOCK, individually and on behalf of all others similarly situated Plaintiffs, v. ROSS STORES, INC. and DOES 1 through 10 Defendants.

No. C 07 4809 CRB STILLMOCK PLAINTIFFS' STATEMENT IN RESPONSE TO THE COURT'S NOVEMBER 30, 2007 ORDER

Plaintiffs Patrick and Jeanne Stillmock (the "Stillmock Plaintiffs"), by their undersigned attorneys, respectfully submit the following Statement in Response to the Court's November 30, 2007 Order. The Stillmock Plaintiffs filed their Class Action Complaint alleging violations of FACTA

24 25 26 27 28 by Defendant Ross in the United States District Court for the District of Maryland on or about May 21, 2007. Ross moved to transfer venue, and on September 10, 2007, upon the Stipulation -1STILLMOCK PLAINTIFFS' STATEMENT IN RESPONSE TO THE COURT'S NOVEMBER 30, 2007 ORDER (NO. C 07 4809 CRB)
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Case 3:07-cv-04809-CRB

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of the Parties and the Order of the District Court of Maryland, the Stillmock Plaintiffs' action was transferred to this Court and was subsequently related to McGee v. Ross, No. 06-7496 (the "McGee action"). The McGee action, which contains substantively identical allegations as those set forth in the Stillmock Plaintiffs' action, had progressed significantly by the time the Stillmock

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Plaintiffs' action was transferred. A substantially similar action, Tolley-McNerney v. Ross, No. 07-4503 was also transferred to this Court, on or about October 5, 2007. On November 21, 2007, the Stillmock Plaintiffs and the Defendants entered into a Stipulation dismissing the Stillmock Plaintiffs' Complaint pursuant to FED. R. CIV. P. 41. Because there was no class certified in the Stillmock Plaintiffs' action, the requirements of FED. R. CIV. P. 23(e) do not apply. The 2003 amendments to the Federal Rules of Civil Procedure amended Rule 23(e) so that it now provides that "[t]he court must approve any settlement, voluntary dismissal or compromise of the claims, issues, or defenses of a certified class." FED. R. CIV. P. 23(e) (emphasis added). See also Buller v. Owner Operator Indep. Driver Risk Retention Group, Inc., 461 F. Supp. 2d 757, 764 (S.D. Ill. 2006) ("As the leading treatise on federal procedure observes, `[T]he 2003 amendments make clear that Rule 23(e) only applies to the `claims, issues, or defenses of a certified class.' Thus, settlements or voluntary dismissals that occur before class certification are outside the scope of subdivision (e).'") (quoting 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1797 (1998 & Supp. 2006) (footnote omitted). Thus, there is no impediment to the entry of the Stillmock Plaintiffs' and Defendants' Stipulation of Dismissal. Because the Stillmock Plaintiffs anticipate the imminent dismissal of their action, they do not take any position with respect to the consolidation of the remaining FACTA actions against Ross.

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DATED: December 10, 2007

Respectfully submitted,

SCHIFFRIN BARROWAY TOPAZ & KESSLER, LLP By:__________/s/_______________________ KATHERINE B. BORNSTEIN Attorneys for Plaintiffs PATRICK STILLMOCK AND JEANNE STILLMOCK

-3STILLMOCK PLAINTIFFS' STATEMENT IN RESPONSE TO THE COURT'S NOVEMBER 30, 2007 ORDER (NO. C 07 4809 CRB)
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