UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

G.G. (a minor) et al., 

Plaintiffs,

v.

SALESFORCE.COM, INC.,

Defendant.

Case No. 1:20-CV-2335

REPLY MEMORANDUM OF DEFENDANT SALESFORCE.COM, INC. IN 

SUPPORT OF MOTION TO TRANSFER

Plaintiffs’ counsel do not dispute what transpired here: counsel “work[ing] together” 

(Dkt. 24 at 3 n.4) filed two related cases that raise nearly identical allegations against Salesforce; 

Salesforce moved under Local Rule 40.4 to reassign this later-filed action (G.G.) to Judge Kness, 

to whom the first-filed case (P.H.) was assigned; and Plaintiffs’ counsel promptly dismissed the 

first-filed P.H. case within hours of Salesforce filing its reassignment motion. These undisputed 

facts are a “strong indication that plaintiffs engaged in judge-shopping.” Alvarado v. Bank of 

Am., N.A., No. 08-CV-02862, 2009 WL 720875, at *3 (E.D. Cal. Mar. 17, 2009). This Court 

should not reward this attempt to evade the random case-assignment process and this Court’s 

Rules, and instead should transfer this case to Judge Kness.

Unable to deny these facts—and without even trying to offer a reason for their latebreaking dismissal in P.H.—Plaintiffs’ counsel retreat to formalistic arguments in an effort to 

cover their tracks. None of these arguments has merit. Plaintiffs’ counsel claim that there is “no 

legal authority” for the Court to transfer this action, by which they apparently mean a specific 

rule or statute governing this unusual situation where counsel has attempted to evade the random 

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case-assignment system and the applicable Local Rule governing low-numbering procedures. 

Dkt. 24 at 1. This constrained view of this Court’s powers is wrong. When “[n]o rule or statute 

directly prescribes the authority of the court to address [a] unique problem,” a court 

“[n]evertheless ... has the inherent authority” to act. Dennis v. INS, No. 01-CV-279, 2002 WL 

295100, at *3 (D. Conn. Feb. 19, 2002) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43–47 

(1991)). Indeed, it is beyond dispute that this Court has inherent power to “preserve the 

efficiency, and more importantly the integrity, of the judicial process.” G. Heileman Brewing 

Co. v. Joseph Oat Corp., 871 F.2d 648, 652 (7th Cir. 1989). As the Supreme Court has 

explained, “[f]ederal courts possess certain ‘inherent powers,’ not conferred by rule or statute, ‘to 

manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’” 

Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017) (quoting Link v. Wabash 

Ry. Co., 370 U.S. 626, 630–31 (1962)). 

This case is a perfect example of why a court’s authority is not limited to what is

“conferred by rule or statute.” Goodyear Tire, 137 S. Ct. at 1186. Plaintiffs’ primary argument 

is that because the other lawyers they are working with voluntarily dismissed the first-filed P.H.

action after Salesforce filed its Rule 40.4 motion, that rule technically no longer applies. Dkt. 24

at 1, 3–4. But this Court’s powers are not limited to those under Local Rule 40.4, as noted, and 

there is every reason to fill the gap within the Local Rules with the Court’s inherent authority. 

That is especially true here, where the only reason why the “pending case” requirement of Local 

Rule 40.4 is not met is because Plaintiffs’ counsel took a strategic action, after Salesforce filed a 

proper motion to invoke the rule, to negate that requirement and avoid reassignment under the

rule. In short, Plaintiffs’ counsel should not be heard to argue that the “pending case” element of 

the Local Rule somehow negates this Court’s broader power when it was their own actions that 

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compromised that element. Indeed, if what has occurred here were a permissible tactic, Local 

Rule 40.4 and the random case-assignment system would both be rendered dead letters. 

Plaintiffs next argue that Local Rule 40.3(b)(2) is designed to “thwart judge-shopping” if 

a party dismisses and refiles a case. Dkt. 24 at 4. That is true, but it is of no help to Plaintiffs. 

To the contrary, the clear purpose of that Rule supports Salesforce’s view that the underlying 

theme of all of these Local Rules is to avoid manipulation by counsel of the sort that occurred 

here. And the fact that the Local Rules provide a remedy for one form of judge shopping does 

not mean that other, more creative forms of judge shopping—like the one that has occurred 

here—are beyond this Court’s power to address.

Plaintiffs conclude by questioning why Salesforce seeks transfer of G.G. at this juncture. 

Dkt. 24 at 7. The reason is simple: to prevent an emerging pattern by the same Plaintiffs’ 

counsel of engaging in improper “file and dismiss” tactics in this Court and elsewhere in the 

federal judicial system and in the state courts as well. Plaintiff’s counsel in P.H. already have 

tried to use voluntary dismissal to avoid an adverse tentative ruling in California state court. 

Dkt. 9 at 3 n.1. 

And in the days since Salesforce filed its transfer motion, counsel for G.G. and P.H. have 

engaged in judge-shopping tactics similar to those in this District in the Southern District of 

Texas by filing multiple cases and then serving the complaint in the latest-filed case and 

dismissing an earlier-filed case without explanation. Specifically, on April 8, 2020, counsel for 

P.H. filed two complaints against Salesforce in the Southern District of Texas raising factual 

allegations nearly identical to those in the complaint in this case regarding Salesforce’s 

relationship with Backpage-affiliate Website Technologies, LLC. See Pl.’s Original Compl., 

A.B. v. salesforce.com, inc., No. 4:20-CV-01254, Dkt. 1 (S.D. Tex. Apr. 8, 2020); Pl.’s Original 

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Compl., P.P. v. salesforce.com, inc., No. 4:20-CV-01256, Dkt. 1 (S.D. Tex. Apr. 8, 2020). Both 

actions were assigned to Judge Andrew S. Hanen. Neither complaint was served. A week later, 

counsel for G.G. filed a third action containing virtually identical allegations. See Pl.’s Original 

Compl., A.S. v. salesforce.com, inc., No. 4:20-CV-01317, Dkt. 1 (S.D. Tex. Apr. 13, 2020). This 

third action was assigned to Judge Lynn N. Hughes, and also was not served. Then, on April 29, 

counsel for P.H. filed a fourth action making the same allegations against Salesforce. See Pl.’s 

Original Compl., A.E. v. salesforce.com, inc., No. 4:20-CV-01516, Dkt. 1 (S.D. Tex. Apr. 29, 

2020). This case was assigned to Judge Alfred H. Bennett. Counsel failed to designate any of 

the four cases as related, as is required by the applicable Local Rules. S.D. Tex. L.R. 5.2. 

Instead, immediately after the fourth case was assigned to Judge Bennett, the case before Judge 

Hughes was voluntarily dismissed and the complaint in the case assigned to Judge Bennett was 

served on Salesforce.

What is occurring here is obvious: counsel separately file nearly identical cases until a 

judge they prefer is randomly assigned to one of the cases, and then they dismiss the earlier-filed 

cases that were assigned to judges that they view as less favorable. This unseemly “practice of 

judge-shopping raises serious questions of professional ethics and undermines trust in the court’s 

impartiality,” and “[s]ome consequence should follow.” Landau v. Viridian Energy PA LLC, 

No. 16-2383, 2017 WL 3581323, at *7 (E.D. Pa. Apr. 3, 2017). Salesforce submits that the 

appropriate consequence is to transfer the above-captioned action to Judge Kness, who was 

randomly assigned the earlier-filed case and who, but for the strategic dismissal, would have 

been reassigned this case under Local Rule 40.4. That “[r]eassignment will allow this Court to 

correct counsel’s attempt to manipulate the random assignment process.” Keilholtz v. Superior 

Fireplace Co., No. 08-CV-00836, 2008 WL 5411497, at *2 (N.D. Cal. Dec. 29, 2008).

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By contrast, Plaintiffs provide no explanation for why they oppose transfer, or why they 

suddenly dismissed the P.H. case less than a day after Salesforce filed its reassignment motion. 

Their shell game of selectively serving and dismissing cases across the country smacks of judge 

shopping. Transferring this case to Judge Kness will “preserve the efficiency, and more 

importantly the integrity, of the judicial process,” Heileman, 871 F.2d at 652, by making clear to

Plaintiffs’ counsel that “[w]hen they see a storm brewing in the first court,” they cannot just 

“weigh anchor and set sail for the hopefully more favorable waters.” Telesco v. Telesco Fuel & 

Masons’ Materials, Inc., 765 F.2d 356, 360 n.4 (2d Cir. 1985) (quoting Semmes Motors, Inc. v. 

Ford Motor Co., 429 F.2d 1197, 1203 (2d Cir. 1970)).

Finally, Plaintiffs’ suggestion that Salesforce is engaged in judge shopping is absurd. See 

Dkt. 24 at 7. Salesforce—consistent with Local Rule 40.4—properly and promptly made a 

motion to Judge Kness to reassign this case, as he had been randomly assigned the first of two 

related cases. Invocation of the Local Rule designed to protect the random assignment system is 

not judge shopping—nor is Salesforce’s effort to expose Plaintiffs’ counsel’s tactics to evade 

that Rule. 

CONCLUSION

The Court should transfer this action to Judge Kness. 

DATED: May 29, 2020 Respectfully submitted,

/s/ Patricia Brown Holmes

Patricia Brown Holmes

Lucas T. Rael 

RILEY SAFER HOLMES & CANCILA LLP

70 W. Madison St., Ste. 2900

Chicago, Illinois 60602

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Telephone: (312) 472-8700 

Facsimile: (312) 471-8701 

pholmes@rshc-law.com

lrael@rshc-law.com 

Kristin A. Linsley (admitted pro hac vice)

Chris R. Jones (admitted pro hac vice)

GIBSON, DUNN & CRUTCHER LLP

555 Mission Street

San Francisco, CA 94105-0921

Telephone: 415.393.8395

Facsimile: 415.374.8471

klinsley@gibsondunn.com

crjones@gibsondunn.com

Bradley J. Hamburger (admitted pro hac vice)

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071-3197 

Telephone: 213.229.7658

Facsimile: 213.229.6658

bhamburger@gibsondunn.com

Russell H. Falconer (admitted pro hac vice)

GIBSON, DUNN & CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, TX 75201

Telephone: 214.698.3100

Facsimile: 214.571.2900

rfalconer@gibsondunn.com

Counsel for Defendant salesforce.com, inc. 

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CERTIFICATE OF SERVICE

I hereby certify that on the 29th day of May, 2020, the foregoing document was filed 

using the Court’s CM/ECF system. In addition, (1) the filing is available for viewing and 

downloading via the CM/ECF system, and (2) the CM/ECF system will send notification of this 

filing to all attorneys of record who have registered for CM/ECF updates.

/s/ Patricia Brown Holmes

Patricia Brown Holmes 

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