Ben & Jerry's Franchising, Inc. v. MPA Group, Inc., et al.

Filing 199

ORDER signed by Judge John A. Mendez on 08/28/09 ORDERING that the 148 , 156 Motions to Strike are GRANTED in its entirety and, accordingly, 70 MPA Group, Inc.'s Answer to the First Amended Complaint and MPA's 73 Second Amended Count er-Claim against Ben & Jerry's and Wonder are hereby STRICKEN and MPA Group, Inc.'s claims are DISMISSED. Counter-Claimants/Dfts' 146 , 147 Motions to Exclude the Expert Witness Testimony and Reports of Robert H. Wallace and Gerard S. Clancy are DENIED w/o prejudice to them being refiled at time of trial. (Benson, A.)

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DLA PIPER LLP (US)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA BEN & JERRY'S FRANCHISING, INC., et al., Plaintiffs, v. MPA GROUP, INC. and MEHRDAD PORGHAVAMI, et al., Defendants. MEHRDAD PORGHAVAMI, et al., Counter-Claimant, v. BEN & JERRY'S FRANCHISING INC., BEN & JERRY'S HOMEMADE INC., BEN & JERRY'S OF CALIFORNIA, INC. and WONDER ICE CREAM, LLC, Counter-Defendants. On August 26, 2009, the following motions were duly heard: (1) Plaintiffs/CounterDefendants Ben & Jerry's Franchising, Inc. and Ben & Jerry's Homemade, Inc.'s ("Ben & Jerry's") "Motion to Strike the Answer and Counter-Claim of MPA Group, Inc. for Failure to Notice Appearance of Counsel and Dismiss MPA's Claims" [Docket at 148] and CounterDefendant Wonder Ice Cream, LLC's ("Wonder") "Motion to Strike the Counter-Claim of MPA Group, Inc. and Dismiss MPA Group, Inc.'s Claims" [Docket at 156] (collectively referred to herein as "Motions to Strike"), and (2) Counter-Claimants/Defendants Mehrdad Porghavami and MPA Group, Inc.'s Motions to Exclude the Expert Witness Testimony and Reports of Robert H. Wallace [Docket at 146] and Gerard S. Clancy [Docket at 147] (collectively referred to herein as "Motions to Exclude Expert Witness Testimony and Reports"). I. Motions to Strike CASE NO. 2:07-CV-02599-JAM-KJM [Assigned to Hon. John A. Mendez] ORDER ON "MOTIONS TO STRIKE ANSWER AND COUNTERCLAIM" AND "MOTIONS TO EXCLUDE EXPERT TESTIMONY AND REPORTS"

The Court has heard the arguments of the parties, considered the papers submitted in

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[PROPOSED] ORDER ON "MOTIONS TO STRIKE ANSWER AND COUNTERCLAIM" AND "MOTIONS TO EXCLUDE EXPERT TESTIMONY AND REPORTS"

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DLA PIPER LLP (US)

support of and in opposition to the Motions to Strike, reviewed the authorities cited by the parties and reviewed the record in the case. Being so informed, the Court finds that applicable federal law and local court rules provide no exception to the well-established rule that a corporation must be represented by a licensed attorney. Rowland v. California Men's Colony, 506 U.S. 194, 202 (1993); The Rock v. Decision One Mortgage, 2009 U.S. Dist. LEXIS 9368 at *2 (E.D. Cal., Jan. 28, 2009); see also Local Rule 83-183. Thus, this Court finds GOOD CAUSE and GRANTS the Motions to Strike. Accordingly, IT IS ORDERED, ADJUDGED and DECREED that: Pursuant to F.R.C.P. 41 (b) and (c), and Local Rule 83-183, the relief sought by Ben & Jerry's and Wonder in their respective Motions to Strike is GRANTED in its entirety and, accordingly, MPA Group, Inc.'s Answer to the First Amended Complaint [Docket at 70] and MPA's Second Amended Counter-Claim [Docket at 73] against Ben & Jerry's and Wonder are hereby stricken and MPA Group, Inc.'s claims are dismissed. II. Motion to Exclude Expert Witness Testimony and Reports

The Court has heard the arguments of the parties, considered the papers submitted in support of and in opposition to the Motions to Exclude Expert Witness Testimony and Reports, reviewed the authorities cited by the parties and reviewed the record in the case. Being so informed, the Court DENIES the Motions to Exclude Expert Witness Testimony and Reports. Accordingly, IT IS ORDERED, ADJUDGED and DECREED that: Counter-Claimants/Defendants' Motions to Exclude the Expert Witness Testimony and Reports of Robert H. Wallace [Docket at 146] and Gerard S. Clancy [Docket at 147] are DENIED without prejudice to them being refiled at time of trial.

Dated: August 28, 2009

/s/ John A. Mendez________ John A. Mendez United States District Judge

-2EAST\42544569.1

[PROPOSED] ORDER ON "MOTIONS TO STRIKE ANSWER AND COUNTERCLAIM" AND "MOTIONS TO EXCLUDE EXPERT TESTIMONY AND REPORTS"

PDF created with pdfFactory trial version www.pdffactory.com