Sessa v. Ancestry.com Operations Inc.

• Court: District Court, D. Nevada
• Decided: April 23, 2021
• Docket: 2:20-cv-02292
• Status: Unknown

Opinion

1 Miles N. Clark, Esq. COHEN-JOHNSON, LLC Nevada Bar No. 13848 H. Stan Johnson, Esq. (SBN: 0265) 2 Matthew I. Knepper, Esq. (sjohnson@cohenjohnson.com) Nevada Bar No. 12796 375 E. Warm Springs Road, Suite 104 3 KNEPPER & CLARK LLC Las Vegas, Nevada 89119 5510 So. Fort Apache Rd, Suite 30 Telephone: (702) 823-3500 4 Las Vegas, NV 89148 Facsimile: (702) 823-3400 Phone: (702) 856-7430 5 Fax: (702) 447-8048 QUINN EMANUEL URQUHART & 6 Email: Miles.Clark@knepperclark.com SULLIVAN, LLP Shon Morgan (Pro Hac Vice) 7 Michael F. Ram (Pro Hac Vice) (shonmorgan@quinnemanuel.com) Marie N. Appel (Pro Hac Vice) John W. Baumann (Pro Hac Vice) 8 MORGAN & MORGAN COMPLEX (jackbaumann@quinnemanuel.com) LITIGATION GROUP 865 South Figueroa Street, 10th Floor 9 711 Van Ness Avenue, Suite 500 San Los Angeles, California 90017 10 Francisco, CA 94102 Telephone: (213) 443-3000 Telephone: (415) 358-6913 Facsimile: (213) 443-3100 11 Facsimile: (415) 358-6293 Email: MRam@forthepeople.com Cristina Henriquez (Bar No. 317445) 12 Email: MAppel@forthepeople.com (cristinahenriquez@quinnemanuel.com) 555 Twin Dolphin Drive, 5th Floor 13 Benjamin R. Osborn (Pro Hac Vice) Redwood Shores, California 94065 14 102 Bergen Street Brooklyn, NY 11201 Telephone: (650) 801-5000 Telephone: (347) 645-0464 Facsimile: (650) 801-5000 15 Email: Ben@benosbornlaw.com Attorneys for ANCESTRY.COM 16 Counsel for Plaintiffs and the Proposed OPERATIONS INC., ANCESTRY.COM Class INC., and ANCESTRY.COM LLC 17 UNITED STATES DISTRICT COURT 18 DISTRICT OF NEVADA 19 20 ANTHONY SESSA and MARK SESSA, on Case No.: 2:20-cv-02292-GMN-BNW 21 behalf of themselves and all others similarly situated, JOINT DISCOVERY PLAN AND 22 Plaintiffs, PROPOSED ORDER 23 v. Complaint filed: Dec. 17, 2020 24 ANCESTRY.COM OPERATIONS INC., a Virginia Corporation; ANCESTRY.COM 25 INC., a Delaware Corporation; and ANCESTRY.COM LLC, a Delaware Limited 26 Liability Company, Defendants. 27 1 The parties to the above-entitled action jointly submit this JOINT DISCOVERY PLAN & 2 PROPOSED ORDER pursuant to Civil Local Rule 26-1. 3 1. Discovery Cut-Off Date. 4 Plaintiffs’ Position: Ancestry filed an anti-SLAPP motion to strike on February 10, 2021 5 (Dkt. No. 19). Plaintiffs believe the motion is baseless. A similar anti-SLAPP motion by Ancestry 6 was denied in a related California case. Callahan v. Ancestry.com Inc., No. 3:20-cv-08437-LB, 7 2021 WL 783524, at *11 (N.D. Cal., Mar. 1, 2021). However, because an anti-SLAPP motion 8 triggers an automatic stay of discovery on topics unrelated to the anti-SLAPP motion itself, 9 10 Plaintiffs cannot yet commence discovery. Plaintiffs anticipate completing discovery within 12 11 months of the entry of a dispositive ruling on the anti-SLAPP motion. 12 Ancestry Position: As set forth in Ancestry’s motion to dismiss and strike, Ancestry disputes 13 the Court’s subject-matter jurisdiction based on plaintiffs’ lack of Article III standing and also disputes 14 personal jurisdiction over Ancestry. See ECF No. 19. In addition, Ancestry’s filing of the motion to 15 strike pursuant to Nevada’s anti-SLAPP statute automatically stays discovery pending resolution 16 of the motion. Nev. Rev. Stat. § 41.660(3)(e); See also Foley v. Pont, No. 2:11-CV-01769-ECR, 17 18 2012 WL 2503074, at *5 (D. Nev. June 27, 2012) (“staying discovery pending the outcome of the 19 [] Defendants’ antiSLAPP motion to dismiss is warranted under NRS 41.660(3).”). Accordingly, 20 it is Ancestry’s position that it is premature to engage in discovery or to try to establish a schedule 21 for discovery. This is especially true in light of the automatic right to appeal the denial of an anti- 22 SLAPP motion, which appeal would result in an automatic stay of the district court proceedings 23 (including discovery) until the appeal is resolved. 24 As described more fully in Ancestry’s motion to dismiss, this case is one of three virtually 25 26 identical, class actions in different federal courts that plaintiffs’ counsel have filed. The first has 27 already been dismissed for reasons that apply equally here. See Callahan v. Ancestry.com, Case 1 No. 20-cv-08437-LB, 2021 WL 783524, *4-6 (N.D. Cal. Mar. 1, 2021). A motion to dismiss in 2 the second action will be fully briefed by the end of the month. See Bonilla v. Ancestry.com, Case 3 No. 1:20-cv-07390 (N.D. Ill.). 4 2. Amending the Pleadings and Adding Parties, Expert Disclosures, Dispositive Motions, and Pretrial Order. 5 Because of Ancestry’s pending anti-SLAPP motion, the parties are unable to estimate a 6 7 specific date for close of discovery. For the same reason, they are not yet able to provide dates for 8 the various deadlines that are measured by reference to the close of discovery. Should this case 9 proceed past the pleadings, Ancestry (1) anticipates filing a motion for summary judgment and a 10 motion to deny class certification, and (2) may engage experts, including with respect to potential 11 class certification issues. 12 3. Fed. R. Civ. P. 26(a) Disclosures 13 14 Plaintiffs’ Position: Ancestry has taken the position it is not obligated to provide Rule 26(a) 15 disclosures while the anti-SLAPP motion is pending. Plaintiffs are prepared to exchange Rule 16 26(a) disclosures at any time. 17 Ancestry Position: Ancestry objects to the initial disclosure requirement set forth in Federal 18 Rule of Civil Procedure 26(a). Ancestry has filed a motion to strike plaintiffs’ complaint pursuant 19 to Nevada’s anti-SLAPP statute. Accordingly, discovery is automatically stayed pending 20 resolution of the motion and the disposition of any appeal from the ruling on the motion. Nev. 21 22 Rev. Stat. § 41.660(3)(e); Foley v. Pont, No. 2:11-CV-01769-ECR, 2012 WL 2503074, at *5 (D. 23 Nev. June 27, 2012) (“staying discovery pending the outcome of the [] Defendants’ anti-SLAPP 24 motion to dismiss is warranted under NRS 41.660(3).”). 25 4. Alternative Dispute Resolution 26 The parties have conferred and agree any mediation would be most productive following 27 resolution of Ancestry’s pending motion to dismiss and anti-SLAPP motion to strike. If this case 1 survives the pending motion to dismiss and strike, the parties also agree, subject to approval from 2 the Court, to participate in private mediation. 3 5. Alternative Forms of Case Disposition 4 The parties certify that they considered trial by magistrate judge and use of the Short Trial 5 Program. The parties agree that neither are appropriate for this matter. 6 6. Electronic Evidence 7 Discovery has not yet begun as resolution of Ancestry’s anti-SLAPP motion is pending. 8 Thus, the parties have not yet discussed whether they intend to present evidence in electronic 9 10 format to jurors. 11 12 Respectfully submitted, 13

14 KNEPPER & CLARK LLC COHEN-JOHNSON, LLC 15 /s/ Miles N. Clark /s/ H. Stan Johnson 16 Matthew I. Knepper, Esq., SBN 12796 H. Stan Johnson, Esq., SBN 0265 Miles N. Clark, Esq., SBN 13848 375 E. Warm Springs Road, Suite 104 17 Shaina R. Plaksin, Esq., SBN 13935 Las Vegas, Nevada 89119 18 5510 So. Fort Apache Rd, Suite 30 Email: sjohnson@cohenjohnson.com Las Vegas, NV 89148 19 Email: matthew.knepper@knepperclark.com Attorneys for Defendants Ancestry.com Email: miles.clark@knepperclark.com Operations Inc., Ancestry.com Inc., and 20 Email: shaina.plaksin@knepperclark.com Ancestry.com LLC

21 Counsel for Plaintiffs and the Proposed Class

23 24 25 26 27 ORDER The Court will construe ECF No. 29 as a stipulation to stay discovery pending a decision « 2 | ECF No. 19. The parties' stipulation is GRANTED. IT IS ORDERED that the parties mus 3 file a new proposed discovery plan and scheduling order within 14 days of a decision on ECF No. 19, unless the case is dismissed in its entirety without leave to amend. 4 5 IT ISSO ORDERED 6 DATED: 4:05 pm, April 23, 2021

7 Gx lx Ure fat 8 BRENDA WEKSLER 9 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 of 5