Morning Star Packing Company, et al v. SK Foods, et al

Filing 94

STIPULATION and ORDER signed by Judge Morrison C. England, Jr on 11/30/2009 ORDERING that the hearing on 88 Motion to Dismiss is vacated; pltfs Amended Complaint due by 12/31/2009; Salyer's response to amended complaint due by 2/5/2010. (Suttles, J)

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Dale C. Campbell, State Bar No. 99173 James Kachmar, State Bar No. 216781 W. Scott Cameron, State Bar No. 229828 WEINTRAUB GENSHLEA CHEDIAK Law Corporation 400 Capitol Mall, 11th Floor Sacramento, California 95814 [phone] ­ Main [phone] ­ Facsimile Attorneys for Plaintiffs The Morning Star Packing Company, Liberty Packing Company, LLC, California Fruit & Tomato Kitchens, LLC, and The Morning Star Company

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

THE MORNING STAR PACKING COMPANY, a California limited partnership; LIBERTY PACKING COMPANY, LLC, a California limited liability company; CALIFORNIA FRUIT & TOMATO KITCHENS, LLC, a California limited liability company; and THE MORNING STAR COMPANY, a California corporation, Plaintiffs, vs. SK FOODS, L.P., a California limited partnership; SCOTT SALYER, an individual; RANDALL RAHAL, an individual; INTRAMARK USA, INC., a New Jersey corporation; and DOES 1 through 50, inclusive, Defendants.

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Case No. 2:09-CV-00208 MCE-EFB STIPULATION AND ORDER VACATING THE HEARING DATE OF DEFENDANT SCOTT SALYER'S MOTION TO DISMISS AND EXTENSION OF TIME TO RESPOND TO AMENDED COMPLAINT

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Stip. and [Proposed] Order Vac. Hrg. Date re Mot. to Dismiss and Ext. of Time to Resp. to Amended Cmplt.

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/// Plaintiffs The Morning Star Packing Company, Liberty Packing Company, LLC, California Fruit and Tomato Kitchens, LLC and The Morning Star Company (collectively, "Plaintiffs") and defendant Scott Salyer ("Salyer"), by and through their counsel of record, hereby submit the following stipulation and proposed order to vacate the hearing on Salyer's motion to dismiss and to extend the time for Salyer to respond to Plaintiffs' amended complaint. WHEREAS, Plaintiffs filed a complaint in the above-captioned case on January 22, 2009. WHEREAS, an involuntary bankruptcy proceeding was filed against defendant SK Foods, LP ("SK Foods") on May 5, 2009 (United States Bankruptcy Court, Eastern District of California, Case No. 09-28956-D-11). SK Foods filed a voluntary bankruptcy petition on May 7, 2009 (United States Bankruptcy Court, Eastern District of California, Case No. 09-29162-D-11). Notice of the automatic stay was filed in this Court on May 11, 2009. WHERAS, prior to filing bankruptcy, SK Foods and Salyer had filed a motion to dismiss on April 8, 2009, the hearing of which was continued by the Court in granting the parties' Stipulation on June 11, 2009 to September 24, 2009. WHEREAS, the Court, on June 11, 2009, also stayed all discovery in this action; WHERAS, the automatic stay provisions has caused some uncertainty regarding Plaintiffs' ability to file an opposition to SK Foods' motion to dismiss as well as to cure any defects by the filing of an amended complaint. The parties stipulated on September 17, 2009 to continue the hearing on defendants SK Foods' and Salyer's motion to dismiss for an additional 90 days. WHEREAS, on September 23, 2009, the Court issued its Minute Order denying defendants' motions to dismiss without prejudice to their being re-filed and set for hearing on December 17, 2009 or such later time as the parties may
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Stip. and [Proposed] Order Vac. Hrg. Date re Mot. to Dismiss and Ext. of Time to Resp. to Amended Cmplt.

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agree. WHEREAS, Salyer re-filed his motion to dismiss complaint on November 11, 2009 and set his motion for hearing on December 17, 2009. /// WHEREAS, on November 13, 2009, the Court sua sponte vacated the hearing on Salyer's motion to dismiss and advanced the hearing to December 10, 2009. WHEREAS, Plaintiffs and Salyer have agreed to vacate the hearing of Salyer's motion to dismiss currently scheduled for December 10, 2009 so that Plaintiffs may file an amended complaint as is permitted as a matter of course under Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure and thereby render Salyer's motion to dismiss moot. WHEREAS, Salyer has agreed to vacate the hearing of his motion to dismiss in exchange for Plaintiffs agreeing to extend the time for him to answer or otherwise respond to the amended complaint, which Plaintiffs have agreed to do. THEREFORE, Plaintiffs and Salyer, by and through their counsel of record, hereby stipulate as follows: 1. The hearing on Salyer's motion to dismiss currently set for December

10, 2009 is vacated; 2. Plaintiffs shall have until December 31, 2009 in which to file an

amended complaint; and 3. Salyer shall have until February 5, 2010 in which to answer or

otherwise respond to Plaintiffs' amended complaint. IT IS SO STIPULATED. Dated: November 24, 2009 WEINTRAUB GENSHLEA CHEDIAK Law Corporation By:
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/s/ James Kachmar
Stip. and [Proposed] Order Vac. Hrg. Date re Mot. to Dismiss and Ext. of Time to Resp. to Amended Cmplt.

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{1165751.DOC;}

California

James Kachmar Attorneys for Plaintiffs The Morning Star Packing Company, Liberty Packing Company, LLC, Fruit & Tomato Kitchens, LLC, and The Morning Star Company SEGAL & KIRBY LLP By: /s/ Malcolm S. Segal Malcolm S. Segal Attorneys for Defendant Scott Salyer ORDER

Dated: November 24, 2009

IT IS SO ORDERED. DATED: 11/30/2009 _______________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

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Stip. and [Proposed] Order Vac. Hrg. Date re Mot. to Dismiss and Ext. of Time to Resp. to Amended Cmplt.