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

Filing 97

STIPULATION and ORDER signed by Judge Morrison C. England, Jr on 1/4/2010 GRANTING 96 Stipulation and Proposed Order regarding extension of time for filing of amended complaint until 1/21/2010 and to respond to amended complaint until 2/26/2010. (Matson, R)

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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 RE EXTENSION OF TIME FOR FILING OF AMENDED COMPLAINT AND TO RESPOND TO AMENDED COMPLAINT

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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 extend the time for Plaintiffs to file an amended complaint 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 agree.

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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, on November 24, 2009, Plaintiffs and Salyer 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. Plaintiffs and Salyer also

stipulated to extend the time for Salyer to answer or otherwise respond to the amended complaint. WHEREAS, on December 8, 2009, the Court issued its Order (Dckt. # 95) granting the parties' stipulation and: (1) vacated the December 10, 2009 hearing of Salyer's motion to dismiss; (2) granted Plaintiffs' leave to file an amended complaint by December 31, 2009; and (3) extended the time for Salyer to answer or otherwise respond to the amended complaint to February 5, 2010. WHEREAS, given the Christmas holidays, Plaintiffs will need additional time in which to complete their investigation and prepare and file an amended complaint. THEREFORE, Plaintiffs and Salyer, by and through their counsel of record, hereby stipulate as follows: 1. Plaintiffs shall have until January 21, 2010 in which to file an amended

complaint; and 2. Salyer shall have until February 26, 2010 in which to answer or

otherwise respond to Plaintiffs' amended complaint. IT IS SO STIPULATED.

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Dated: December 29, 2009

WEINTRAUB GENSHLEA CHEDIAK Law Corporation By: /s/ James Kachmar 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

California

Dated: December 29, 2009

IT IS SO ORDERED. DATED: January 4, 2010 __________________________________ MORRISON C. ENGLAND, JR UNITED STATES DISTRICT JUDGE