Hohenberg v. Ferrero USA, Inc

Filing 23

REPLY to Response to Motion re 21 Ex Parte MOTION for Extension of Time to File Answer filed by Ferrero USA, Inc. (Bal, Colleen) (ag).

Download PDF
Hohenberg v. Ferrero USA, Inc Doc. 23 1 2 3 4 5 6 7 8 KEITH E. EGGLETON, State Bar No. 159842 COLLEEN BAL, State Bar No. 167637 DALE R. BISH, State Bar No. 235390 AMIR STEINHART, State Bar No. 275037 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 Attorneys for Defendant FERRERO U.S.A, INC. UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 Plaintiffs, 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY ISO FERRERO'S EX PARTE APPLICATION FOR CONTINUANCE 11CV0205 ATHENA HOHENBERG and LAURA RUDE-BARBATO, individually and on behalf of all others similarly situated, v. FERRERO U.S.A., INC., a foreign corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 11 CV 0205 (H CAB) REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT FERRERO U.S.A, INC.'S EX PARTE MOTION FOR AN ORDER POSTPONING DEADLINE TO RESPOND TO CONSOLIDATED COMPLAINT AND STAYING DISCOVERY Time: N/A Date: N/A Before: Hon. Marilyn L. Huff 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 Ferrero would have preferred not to trouble the Court with a reply submission on its ex parte motion, but feels compelled to do so here in light of various mischaracterizations and insinuations made in plaintiffs' opposition papers. As a threshold matter, plaintiffs suggest Ferrero's response is due on April 12 pursuant to stipulation; in fact, it is currently due on April 6 pursuant to Federal Rule of Civil Procedure 15(a)(1)(3). More importantly, plaintiffs suggest that Ferrero "failed to disclose" that its response to the complaint in the District of New Jersey is currently due on April 25, 2011 therefore "revealing Ferrero's true interest is not to delay litigation while the venue is decided generally, but to delay this action before this Court." Opp. at 6. The implication that Ferrero has not been candid with this Court is neither true nor well-taken. In fact, Ferrero requested the exact same extension i.e., that responses be postponed pending resolution of its transfer motion from counsel in the Glover action. Although plaintiff in that action agreed to an initial 30-day extension, the parties stipulated (and the consent order expressly states) "that Defendant's time to respond to Plaintiff's Complaint is extended 30 days to, and including, April 25, 2011, without prejudice to the parties' ability to seek a further extension of this date to facilitate the consolidation of the aforementioned [California] actions and a single response thereto." Fitzgerald Decl., Ex. A (emphasis added). Ferrero certainly intends to seek an additional extension on that date to accommodate an orderly progression of the litigation. Second, plaintiffs mischaracterize the relief sought in Ferrero's ex parte motion as "an indefinite stay." That is incorrect. The relief sought is tethered to the Court's decision on a motion to transfer. See Motion at 4 ("Ferrero respectfully requests that the Court issue an order: 1. That Ferrero U.S.A.'s response to the consolidated, amended complaint be due thirty (30) days after the Court's order on Ferrero U.S.A.'s motion to transfer"). Moreover, Ferrero had noticed the hearing on its motion for transfer for May 2 the first available date and is accelerating its venue-related discovery responses to facilitate prompt resolution of that issue. Third, plaintiffs imply that Ferrero had already decided to seek transfer when stipulating to the first extension in this case. Opp. at 7 ("Ferrero was well aware of these circumstances REPLY ISO FERRERO'S EX PARTE APPLICATION FOR CONTINUANCE 11CV0205 1 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 when it agreed on February 23 to respond to the Master Consolidated Complaint within 20 days after its filing"). Of course, plaintiffs are well aware that the parallel action in New Jersey was not filed until February 27, 2011 and the pendency of a parallel action in that forum is plainly one of the most important factors supporting transfer. In addition to unfairly attacking Ferrero's motives for seeking an extension, plaintiffs argue that the courts both this Court and the District of New Jersey should "first resolve the pleadings before deciding venue issues." Opp. at 11. Ferrero understands that plaintiffs are trying to push forward their case in order to bolster an argument that the case should stay in this district, but that is no reason to require duplicative briefing in two courts with possibly conflicting rulings. Moreover, there is no reason to press forward with merits discovery given that Ferrero has agreed to reasonable discovery pertaining to the threshold issue of venue. Thus, Ferrero respectfully submits that the only question for the Court on this ex parte motion is whether certain activity such as resolving the legal sufficiency of the claims in "copycat" complaints (Opp. at 1) and merits discovery can and should be temporarily postponed to allow the Court to resolve threshold issue of forum. Dated: March 31, 2011 Respectfully submitted, WILSON SONSINI GOODRICH & ROSATI Professional Corporation By: /s/Colleen Bal Colleen Bal Attorneys for Defendant Ferrero U.S.A., Inc. REPLY ISO FERRERO'S EX PARTE APPLICATION FOR CONTINUANCE 11CV0205 2 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 CERTIFICATE OF SERVICE I am employed in the County of Santa Clara, State of California. I am over the age of eighteen years and not a party to the within action; my business address is 650 Page Mill Road, Palo Alto, California 94104-1050. On March 31, 2011, I served the following document on the interested parties in this action: REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT FERRERO U.S.A, INC.'S EX PARTE MOTION FOR AN ORDER POSTPONING DEADLINE TO RESPOND TO CONSOLIDATED COMPLAINT AND STAYING DISCOVERY by causing the above document to be served via the Court's Electronic Filing System on the following registered parties shown on the court's service list by posting such document electronically to the ECF website of the United States District Court for the Southern District of California: Ronald A. Marron, Esq. Ron.marron@gmail.com Law Offices of Ronald A. Marron, APLC 3634 4th Avenue, Suite 202 San Diego, CA 92103 Gregory S. Weston Jack Fitzgerald greg@westonfirm.com jack@westonfirm.com The Weston Firm 888 Turquoise Street San Diego, CA 92109 REPLY ISO FERRERO'S EX PARTE APPLICATION FOR CONTINUANCE 11CV0205 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 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Dated: March 31, 2011 Respectfully submitted, WILSON SONSINI GOODRICH & ROSATI Professional Corporation By: /s/ Colleen Bal Colleen Bal Attorneys for Defendant Ferrero U.S.A., Inc. REPLY ISO FERRERO'S EX PARTE APPLICATION FOR CONTINUANCE 11CV0205 4