"The Apple iPod iTunes Anti-Trust Litigation" Doc.

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Case 5:05-cv-00037-JW Document 55 Filed 03/23/2006 Page 1 of 3

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7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9 SAN JOSE DIVISION
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United States District Court

11 Thomas William Slattery, individually, NO. C 05-00037 JW

and on behalf of all others similarly situated,
For the Northern District of California

12 ORDER DENYING DEFENDANT'S

Plaintiffs, REQUEST FOR LEAVE TO FILE
13 v. MOTION FOR SUMMARY
JUDGMENT; SETTING HEARING FOR
14 Apple Computer, Inc., PLAINTIFF'S MOTION FOR LEAVE TO
FILE A SECOND AMENDED
15 Defendant. COMPLAINT AND CASE
/ MANAGEMENT CONFERENCE
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On February 21, 2006, Defendant filed an Administrative Request for Leave to File Motion
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for Summary Judgment. (hereafter, "Request," See Docket Item No. 44.) Defendant seeks leave
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because the Court's November 15, 2005 Order Following Case Management Conference states that
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"Defendant shall not file its motion for summary judgment before the motion for class certification
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is decided." (See Docket Item No. 42.)
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Defendant contends that the Court should permit them to file their motion for summary
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judgment before Plaintiff's class certification because early discovery reveals that the allegations
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contain in Plaintiff's complaint are false. (Request at 2.) Plaintiff's complaint alleges that Thomas
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William Slattery, purchased music online from Apple's iTunes music store during the class period,
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alleged as April 2003; that he was "force to purchase an Apple iPod device..." to play that music;
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and that he "has been forced to continue purchasing online digital music files solely from Apple's
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Dockets.Justia.com
 Case 5:05-cv-00037-JW Document 55 Filed 03/23/2006 Page 2 of 3

1 iTunes store..." (Request at 2.) However, during his January 30, 2006 deposition, Slattery admitted
2 that he had obtained no music from Apple's online store before buying an iPod. In fact, Slattery
3 obtained music from Apple on only one occasion, and that was after filing his complaint. (Request
4 at 3.) The Court finds that Defendant's request for leave to file a summary judgment motion is based
5 purely on a challenge to Plaintiff Slattery's standing. Since this is a class action lawsuit, substitution
6 of a proper class representative is permissible. Accordingly, the Court DENIES Defendant's request
7 for leave to file a motion for summary judgment at this time.
8 The Court sets May 8, 2006 at 9 a.m. as a hearing date for Plaintiff's motion for leave to file
9 Second Amended Complaint. The parties shall follow the briefing schedule pursuant to the Civil
10 Local Rules of this Court. The Court will also conduct a case management conference on the same
United States District Court

11 date at 10 a.m. where the Court will discuss a new schedule for the case. The previously set case
For the Northern District of California

12 management for April 17, 2006 is effectively vacated.

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14 Dated: March 23, 2006
JAMES WARE
15 United States District Judge
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 Case 5:05-cv-00037-JW Document 55 Filed 03/23/2006 Page 3 of 3

1 THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO:
2 Adam Richard Sand arsand@JonesDay.com
Caroline N. Mitchell cnmitchell@jonesday.com
3 Eric J. Belfi ebelfi@murrayfrank.com
Marc L. Godino service@braunlawgroup.com
4 Michael David Braun mdb@braunlawgroup.com
Robert A. Mittelstaedt ramittelstaedt@jonesday.com
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6 Dated: March 23, 2006 Richard W. Wieking, Clerk
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By: /s/ JW Chambers
8 Melissa Peralta
Courtroom Deputy
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United States District Court

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For the Northern District of California

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