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Hernandez v. IGE CaptionU.S. District Judge James Cohn (Southern District, Florida) recently issued an Order moving the Hernandez v. IGE trial date (.pdf) pursuant to the parties’ joint request last week. The parties had sought a three week trial commencing February 16, 2009, citing the involvement of new counsel for IGE, the complexity of the case, and the fact that the parties had not yet engaged in significant discovery. Judge Cohn acknowledged the parties’ need to move the trial date, but scheduled the trial for only two weeks and calendered a start date of December 8, 2008 — more than two months earlier than the date the parties had sought. He also expressed some dissatisfaction with the progress of the case so far, and noted his concern regarding key aspects of Hernandez’s claims.

For the background of this suit, see VB’s complete coverage of Hernadez v. IGE. Very briefly, the suit involves a not-yet-certified class of users led by Antonio Hernandez, who are suing virtual property dealer Internet Gaming Entertainment (IGE) for diminishing the intended World of Warcraft experience by spamming chat, farming gold, and engaging in a number of other activities that allegedly violate Blizzard’s Terms of Use.

Judge Cohn’s Order gives a fair bit of commentary on the case’s status, and indicates some unhappiness with the lack of progress so far. From the Order:

This case has been pending for nearly one year, having been filed on June 1, 2007. Plaintiff apparently did nothing for nearly three months, until an amended complaint was filed on August 17, 2007 and the single domestic defendant, IGE U.S. LLC was served on September 4, 2007. On September 26, 2007, this Court reset the trial for August of 2008, a sufficient amount of time even for a class action. The parties sought and received a delay in setting the scheduling conference before Magistrate Judge Seltzer. The parties briefly engaged in motion practice, but the motion to stay or dismiss filed by IGE U.S. was withdrawn on December 10, 2007. The foreign defendant was dropped by Plaintiff on December 21, 2007, and IGE U.S. filed an Answer on January 3, 2008.

Apparently, though the parties should have been engaged in discovery at this point, not much was accomplished during the next three months. On March 31, 2008, IGE U.S. changed counsel. It is this change of counsel that is one of the arguments the parties rely upon in seeking a significant continuance in this case.

While the Court will grant in part the extended continuance as requested so as to not prejudice either party, counsel must be aware that this case did not recently begin, and by the time of the new trial date in 2009, this action will likely be one of this Court’s oldest cases. Thus, additional continuances are unlikely.

Also of note, Judge Cohn signaled that he questions Hernandez’ standing to sue and ability to prove liability in a footnote to this Order, writing:

The Court also notes that based upon the minimal record in the case to date, and without of course prejudging any issue, it appears that liability and standing issues seem the most challenging issues for Plaintiffs, rather than the parties’ apparent focus on class certification issues.

Dropping a footnote like this in a scheduling order is somewhat atypical, and IGE will likely take this as a signal that the Court may look favorably on an eventual motion for summary judgment, particularly regarding standing to sue. To establish standing, a plaintiff must show that (1) he has suffered an injury-in-fact; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. It will be interesting to see how Hernandez handles this, given that the judge has signaled some skepticism.

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