ORDER DENYING MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION Re: Dkt. Nos. 175, 177

WILLIAM H. ORRICK, District Judge.

Defendant (WSI) seeks leave to file a motion for reconsideration of my October 2018 Order because my Order (i) did not grant summary judgment terminating the case and (ii) allowed plaintiffs to undertake discovery to find a plaintiff to pursue the claims asserted under California law. WSI argues I manifestly failed to consider materials facts and dispositive legal arguments. Dkt. No. 175, 175-1. The motion for leave is DENIED.

As to whether the case should have terminated upon my agreement with WSI's choice of law argument (that named plaintiff William Rushing's claims regarding his purchase of bed linens were subject to Kentucky law), WSI did not present this legal argument in its motion. There could be no error in my failure to consider it. If it had been presented, however, I would have rejected it. None of the cases relied on by WSI in support of its initial leave to file or its underlying reconsideration motion arise in a similar posture (class action) or are otherwise apposite.1 One case cited by WSI in its supplemental authority brief (filed following the December 4, 2018 Case Management Conference) appears to have been decided on somewhat similar grounds, granting summary judgment and "dismissing" the one claim remaining in that case on choice-of-law grounds. See Maniscalco v. Bro. Intern. Corp., 793 F.Supp.2d 696 (D.N.J. 2011), aff'd sub nom. Maniscalco v. Bro. Intern. Corp., 709 F.3d 202 (3d Cir. 2013). But WSI cites no caselaw requiring dismissal. Leave to amend, as I have found, is warranted based on the posture and litigation history.

Relatedly, I find that WSI had more than adequate notice about the facts supporting Rushing's claims and his assertion of consumer protection causes of action. Therefore, there was no violation of Rule 8.

If I was unclear in my October Order, I concluded that leave to amend and a short extension of the discovery deadlines for limited class representative discovery was appropriate if plaintiff elected (as he subsequently did) to pursue the existing California claims if a new class member can be located and to amend to assert his personal claims under Kentucky law. These limited extensions do not cause significant disruption to the case schedule given that the material facts as well as any expert opinion supporting the claims and defenses stay the same.

The second argument, that I manifestly failed to consider whether discovery to find a new class representative to pursue the California claims should be allowed under federal law or California law consistent with the balancing mandate of Hill v. NCAA, 7 Cal.4th 1, 35 (1994), is simply wrong. As an initial matter, this issue was briefed (albeit succinctly) in the discovery dispute letter that was fully considered. On the merits of WSI's argument that discovery is not "proper," the cases from this District and more generally within the Ninth Circuit on which WSI relies were denials of discovery that lack significant (if any) case law analysis and otherwise lay within the discretion of those judges in light of the particular postures of those cases.2

Moreover, while I did not cite Hill, I did cite Pioneer Elecs. (USA), Inc. v. Super. Ct., 40 Cal.4th 360 (2007) and Williams v. Super. Ct., 3 Cal. 5th 531, 553 (2017), both of which incorporate the balancing requirements of Hill. I summed up, "Finding no abuse in this process by Rushing or his counsel, and weighing the interests of the class and defendants, I conclude that Rushing should be allowed to seek pre-certification discovery." October Order at 16. I hold to that view: given the substantial work that has gone into this case, it would be wrong to jettison the interests of the putative class if a California class representative wishes to carry on.

Finally, as to the parties' current dispute, whether a Pioneer notice is required prior to releasing information about complaining consumers, that too was resolved in the October Order: "I agree with Rushing that if the discovery is limited to the identity of California consumers who complained to WSI about the bed linens at issue in this case, a Pioneer notice would not be required." October Order at 17 (citing Williams v. Super. Ct., 3 Cal. 5th 531, 553 (2017)). Information about complaining consumers in California, should be produced without a Pioneer notice. The Pioneer notice being negotiated by the parties governs only the release of information regarding California consumers who did not complain to WSI about the bed linens at issue.3

The motion for leave to file a motion for reconsideration is DENIED. Any further disputes regarding the content of the Pioneer notice shall be submitted to and resolved by Magistrate Judge Kim. The parties shall follow the schedule set out in the Civil Minutes of the December 4, 2018 Case Management Conference. Dkt. No. 178. A further Case Management Conference is set for June 4, 2019 at 2:00 p.m.

IT IS SO ORDERED.