Holman et al v. Apple, Inc. et al

Filing 58

First MOTION for Extension of Time to File MOTION TO DISQUALIFY COUNSEL AND MOTION FOR APPOINTMENT OF LEAD COUNSEL; Declaration by Damian R. Fernandez filed by Vincent Scotti, Dennis V Macasaddu, Mark G Morikawa, Timothy P. Smith, Michael G Lee. Motion Hearing set for 2/25/2008 09:00 AM in Courtroom #5, 4th Floor, San Jose. (Attachments: # 1 Exhibit Marc Rifkin email re: Kliegerman Stipulation)(Fernandez, Damian) (Filed on 2/4/2008) Modified on 2/5/2008,(counsel failed to select multiple motions) (cv, COURT STAFF).

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Holman et al v. Apple, Inc. et al Doc. 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M. Van Smith (CA Bar No. 32007) Damian R. Fernandez (CA Bar No. 206662) LAW OFFICE OF DAMIAN R. FERNANDEZ 14510 Big Basin Way, Suite A, PMB 285 Saratoga, California 95070-6091 Telephone: (408) 355-3021 Facsimile: (408) 904-7391 Email: mvsmith@sbcglobal.net damianfernandez@gmail.com Attorneys for Plaintiffs Vincent Scotti, Dennis V. Macasaddu, Mark G. Morikawa, Timothy P. Smith, and Michael G. Lee UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NO. C 07-05152 JW In Re Apple & AT&TM Antitrust Litigation PLAINTIFF'S MOTION TO ENLARGE TIME TO FILE MOTION TO DISQUALIFY COUNSEL AND FOR APPOINTMENT OF LEAD COUNSEL & DECLARATION OF DAMIAN R. FERNANDEZ Date: Time: Judge: March 10, 2008 10:00 AM Honorable James Ware Pursuant to Local Rule 6-3, Plaintiffs Vincent Scotti, Dennis V. Macasaddu, Mark G. Morikawa, Timothy P. Smith, and Michael G. Lee (collectively "Plaintiffs") hereby move the Court for an order enlarging the time within which plaintiffs may file a motion to disqualify counsel for the Holman plaintiffs and to be appointed as lead counsel (collectively "Motion for Lead Counsel"), and in the alternative for a new briefing schedule and hearing date to be set at the Court's discretion. /// February 4, 2008 MOTION TO ENLARGE TIME TO FILE MOTION TO DISQUALIFY COUNSEL & FOR LEAD COUNSEL Page 1 of 3 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION At the case management conference on January 28, 2008, the Court set a briefing schedule on the Motion for Lead Counsel as follows: Opening Brief: Opposition: Reply: February 4, 2008 February 18, 2008 February 25, 2008. The hearing date is set for March 10, 2008, 10:00 AM. At the conference, the parties discussed a related case pending in the Southern District of New York known as Kliegerman v. Apple, Inc. and AT&T Mobility LLC, Case No. 1-07-CV08404-PKC. The Court was advised that on January 18, 2008, Apple filed a motion to transfer the Kliegerman action to this Court. Based on the uncertain time frame on when the transfer would be effectuated following a full briefing schedule in Kliegerman, it was agreed that the Motion for Lead Counsel would proceed forward on the briefing schedule indicated above. However, on Monday, February 4, 2008, 3:52 PM, attorney Mark C. Rifkin, the attorney for plaintiff in Kliegerman sent an email to all counsel and addressed to your honor by Overnight Mail, advising that Kliegerman is stipulating to Apple's motion to transfer the Kliegerman action to this Court. A copy of Mr. Rifkin's letter is attached hereto as Exhibit 1. Mr. Rifkin further advises that it will be filing a motion to have his firm appointed as interim lead class counsel in this action. Mr. Rifkin proposed that it will file its motion on the same day that the opposition brief is due. II. GROUNDS FOR MOTION Based on the new development received from Kliegerman's counsel, plaintiff's counsel needs further time to research and write its brief to address the impact of the Kliegerman action as it relates to the Motion for Lead Counsel. Because Mr. Rifkin's email was submitted near the end of the close of business, there was not enough time to fully consider the impact of Kliegerman's stipulation and thereafter confer with counsel in this action to seek a stipulation to enlarge time to file the Motion for Lead Counsel or alternatively set a new briefing schedule and hearing date to accommodate the appearance of new counsel and the Kliegerman action. February 4, 2008 MOTION TO ENLARGE TIME TO FILE MOTION TO DISQUALIFY COUNSEL & FOR LEAD COUNSEL Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nonetheless, by February 5, 2008, moving counsel will seek the stipulation from all counsel in this case and counsel for Kliegerman to arrive at a reasonable briefing schedule and hearing date in light of this new development. This motion is filed in order to request an extension before the expiration of this Court's previously issued deadline for the filing of the Motion for Lead Counsel. No previous extensions of time have been requested regarding the Motion for Lead Counsel. I, declare under penalty of perjury that the foregoing is true and correct. Dated: February 4, 2008 Respectfully submitted, LAW OFFICE OF DAMIAN R. FERNANDEZ By: /s/ Damian R. Fernandez Damian R. Fernandez M. Van Smith Attorneys for Plaintiffs VINCENT SCOTTI, DENNIS V. MACASADDU, MARK G. MORIKAWA, TIMOTHY P. SMITH, and MICHAEL G. LEE February 4, 2008 MOTION TO ENLARGE TIME TO FILE MOTION TO DISQUALIFY COUNSEL & FOR LEAD COUNSEL Page 3 of 3