Orchard Supply Hardware LLC v. Home Depot USA, Inc. et al

Filing 80

STIPULATION AND ORDER re 79 STIPULATION WITH PROPOSED ORDER (Re: NOTICE OF PRIVATE MEDIATION AND REQUEST FOR STAY OF PROCEEDINGS PENDING MEDIATION) filed by Orchard Supply Hardware LLC. Further Case Management Conference set for 5/7/2014 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco. Signed by Judge Jon S. Tigar on March 18, 2014. (wsn, COURT STAFF) (Filed on 3/18/2014)

1 2 3 4 William A. Markham, State Bar No. 132970 Dorn Graham Bishop, State Bar No. 147994 LAW OFFICES OF WILLIAM MARKHAM, P.C. 550 West C Street, Suite 2040 San Diego, CA 92101 5 Tel: Fax: E-mail: (619) 221-4400 (619) 224-3974 wm@markhamlawfirm.com 6 Attorneys for Orchard Supply Hardware LLC. 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION 10 11 12 ORCHARD SUPPLY HARDWARE LLC, Plaintiff, 13 Vs. 14 15 16 HOME DEPOT USA, INC.; MILWAUKEE ELECTRIC TOOL CORPORATION; and MAKITA USA, INC., 17 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 12-cv-6361 LB JST STIPULATION AND PROPOSED ORDER (RE: NOTICE OF PRIVATE MEDIATION AND REQUEST FOR STAY OF PROCEEDINGS PENDING MEDIATION) The Hon. Jon S. Tigar Complaint Filed: December 14, 2012 Trial Date: Not Set 18 19 20 WHEREAS, on December 14, 2012, Plaintiff, Orchard Supply Hardware, LLC (“Orchard”), 21 filed its original complaint (Dkt. 1) against Defendants Home Depot USA, Inc. (“Home Depot”), 22 Milwaukee Electric Tool Corporation (“Milwaukee”), and Makita USA, Inc. (“Makita”); and 23 24 WHEREAS, the Court ruled on Defendants' challenges to the pleadings by its decision on their second motion to dismiss (Dkt. 59), which it entered on September 19, 2013.; and 25 26 27 28 WHEREAS, Home Depot and Orchard have since conducted some settlement negotiations; and WHEREAS, Orchard represents that in June, 2013 it entered bankruptcy proceedings and, while in bankruptcy, assigned its present claims to its “Senior Secured Term Loan Lenders,” who in STIPULATION AND PROPOSED ORDER (RE: NOTICE OF PRIVATE MEDIATION AND REQUEST FOR STAY OF PROCEEDINGS PENDING MEDIATION) 1 turn have designated Bradley Dietz as the “Responsible Person” charged with the authority and duty 2 to “investigate, prosecute, settle, liquidate, dispose of, and/or abandon” Orchard’s present claims; and 3 in addition Orchard and its lenders represent that Mr. Dietz has been properly designated as a 4 representative of Orchard’s bankruptcy estate under 11 U.S.C. § 1123(b)(3)(B); and 5 WHEREAS, on March 5, 2014 the Court set a further case management conference in this 6 case for March 21, 2014 at 9:00 a.m. in the Oakland Courthouse, unless by March 17, 2014 the 7 parties gave notice that they had confirmed a private mediation, in which event the parties could 8 request that Court continue this case management conference; and 9 WHEREAS, the parties have confirmed a private mediation of Orchard’s claims against Home 10 Depot, and this mediation will be conducted in San Francisco, California on April 28, 2014 by the 11 Honorable Fern Smith (ret.) of JAMS at its offices in San Francisco; and 12 WHEREAS, in light of the assignment of its claims, Orchard wishes to seek leave to amend its 13 operative complaint to reflect that it has assigned its claims to its Senior Secured Term Loan Lenders; 14 and 15 WHEREAS, Home Depot does not oppose the grant of this leave, but preserves all of its 16 objections and defenses to the pleading of the assignment and to the legal consequences and effect of 17 the assignment; and 18 19 WHEREAS, the parties request that case management conference set for March 21, 2014 be continued to May 7, 2014 at 2:00 p.m. 20 21 WHEREFORE, Orchard and Home Depot stipulate to the following arrangement, but subject to this Court's approval: 22 1. The scheduling conference set for March 21, 2014 at 9:00 a.m. in the Oakland 23 Courthouse is continued to May 7, 2014 at 2:00 p.m., when it will be heard in Courtroom 9 of this 24 Court. 25 2. The Court stays all proceedings in this case until the parties have completed their 26 private mediation, which is scheduled to take place before the Honorable Fern Smith (Ret.) in San 27 Francisco, California on April 28, 2014 at 9:00 a.m. 28 // STIPULATION AND PROPOSED ORDER (RE: NOTICE OF PRIVATE MEDIATION AND REQUEST FOR STAY OF PROCEEDINGS PENDING MEDIATION) -2- 1 3. Orchard is hereby given leave to file its third amended complaint, but only for the 2 purpose of alleging the fact, circumstances, and effect of the assignment of its claims to its present 3 assignee. A true and correct copy of this complaint is appended hereto and will be accepted for filing 4 upon the Court’s approval of this Stipulation. 5 4. Home Depot need not file an answer the third amended complaint, but rather the 6 Court will set a deadline for its response after the mediation if any of Orchard’s claims against Home 7 Depot remains pending after the mediation. 8 9 IT IS SO STIPULATED: 10 DATED: March 14, 2014 Respectfully submitted, 11 12 PILLSBURY WINTHROP SHAW PITTMAN LLP 13 /s/ Roxane Polidora By: 14 Roxane Polidora Attorneys for Defendant HOME DEPOT USA, INC. 15 16 17 DATED: March 14, 2014 Respectfully submitted, 18 LAW OFFICES OF WILLIAM MARKHAM, P.C. 19 /s/ William Markham 20 By: William A. Markham, Attorneys for Plaintiff, ORCHARD SUPPLY HARDWARE LLC. 21 22 CT C NO RT 28 J u d ge J o H E n S . Ti g ar FO 27 R NIA ERED Jon S. Tigar, IS SO ORD IT United States District Judge LI DATED: March 18 , 2014 26 UNIT ED 25 ES AT T RT U O S 24 PURSUANT TO STIPULATION, AND IN ACCORDANCE WITH LOCAL RULE 7-12, IT IS SO ORDERED: DISTRI A 23 C STIPULATION AND PROPOSED ORDER (RE: NOTICE R NPRIVATE OF F D IS T IC T O MEDIATION AND REQUEST FOR STAY OF PROCEEDINGS PENDING MEDIATION) R -3-