Lopez, et al v. Iovate Health Sciences, et al

Filing 11

STIPULATION and ORDER TO STAY PROCEEDINGS PENDING MDL CONSIDERATION signed by Judge John A. Mendez on 07/29/09. Case stayed (Benson, A.)

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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 ARTURO J. GONZÁLEZ (BAR NO. 121490) ERIN M. BOSMAN (BAR NO. 204987) WILLIAM F. TARANTINO (BAR NO. 215343) ALEXANDRIA A. AMEZCUA (BAR NO. 247507) MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 Telephone: 415-268-7000 Facsimile: 415.268.7522 Attorneys for Defendant(s) IOVATE HEALTH SCIENCES INC.; IOVATE HEALTH SCIENCES U.S.A., INC.; MUSCLETECH RESEARCH AND DEVELOPMENT INC.; VITAMIN SHOPPE INDUSTRIES, INC.; and GENERAL NUTRITION CENTERS, INC. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ALEJANDRO M. JIMENEZ, an individual; and CHRISTOPHER LOPEZ, an individual; on behalf of themselves and all others similarly situated, Plaintiffs, v. IOVATE HEALTH SCIENCES, INC., IOVATE HEALTH SCIENCES USA, INC., MUSCLETECH RESEARCH AND DEVELOPMENT, INC.; VITAMIN SHOPPE INDUSTRIES, INC., GENERAL NUTRITION CENTERS, INC., and DOES 1 through 50, inclusive Defendants. Case No. 09-CV-01473-JAM-KJM STIPULATION AND ORDER TO STAY PROCEEDINGS PENDING MDL CONSIDERATION Judge: Hon. John A. Mendez Magistrate: Hon. Kimberly J. Mueller 1 STIPULATION AND ORDER PDF created with pdfFactory trial version www.pdffactory.comTO STAY PROCEEDINGS sf-2704220 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 Pursuant to Civil Local Rule 83-143 of this Court, Plaintiffs ALEJANDRO M. JIMENEZ, an individual; and CHRISTOPHER LOPEZ, an individual; on behalf of themselves and all others similarly situated, and defendants IOVATE HEALTH SCIENCES INC.; IOVATE HEALTH SCIENCES U.S.A., INC.; MUSCLETECH RESEARCH AND DEVELOPMENT INC.; VITAMIN SHOPPE INDUSTRIES, INC.; and GENERAL NUTRITION CENTERS, INC. (collectively "Defendants") hereby submit the following Stipulation to Stay Proceedings ("Stipulation") pending a ruling on an MDL application filed by other plaintiffs:1 1. This case is one of at least 17 putative class actions (the "Actions") pending in 12 different federal district courts throughout the country against Defendants regarding the marketing and sale of certain of Defendants' Hydroxycut-branded products. Four individual actions are also currently pending in federal court, challenging the marketing and sale of Hydroxycut-branded products. 2. On June 26, 2009, plaintiffs in Coleman, et al. v. Iovate Health Sciences, U.S.A., Inc., et al., Case No. 3:09-cv-00988-BTM-AJB, pending in the Southern District of California before Judge Barry T. Moskowitz, filed with the Judicial Panel on Multidistrict Litigation ("the Panel") a motion for transfer and consolidation of the Actions to the District Court for the Southern District of California pursuant to 28 U.S.C. § 1407. (A true and correct copy of the Panel's Notice of Filing and Publication of Briefing Schedule is attached as Exhibit 1.) Defendants' response to plaintiffs' motion for transfer was filed July 16, 2009. The parties have requested oral argument and await a hearing date from the Panel. 3. All the Actions, including this one, have just commenced, and there has been little or no activity in the cases. In the present action of Jimenez, et al. v. Iovate Health Sciences, Inc., et al., no activity has commenced. 4. The need for a stay is immediate. Absent a stay, the Court and the parties face imminent deadlines for responsive pleadings, pretrial and other case management orders, Defendants appear for purposes of this Stipulation only, and expressly reserve their right to contest service and this Court's jurisdiction. 1 2 STIPULATION AND ORDER PDF created with pdfFactory trial version www.pdffactory.comTO STAY PROCEEDINGS sf-2704220 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 exchange of initial disclosures, and commencement of discovery in this case, as well as in each of the pending cases. The first deadline in this case will be Defendants' responsive pleading, which is due August 3, 2009. The parties' case management conference will likely come soon thereafter. It would not be a prudent use of this Court's resources to prepare for and participate in a case management conference while a ruling on an MDL application concerning this case is still pending. 5. So as to conserve judicial resources, protect from potential prejudice to the parties, and avoid the risk of conflicting rulings, and pursuant to Civil Local Rule 83-143 of this Court, the parties respectfully request that the Court order a stay of the current proceedings until the MDL jurisdictional issue is determined. Dated: July 29, 2009 ARTURO J. GONZÁLEZ ERIN M. BOSMAN WILLIAM F. TARANTINO ALEXANDRIA A. AMEZCUA MORRISON & FOERSTER LLP By: /s/ Alexandria A. Amezcua ALEXANDRIA A. AMEZCUA Attorneys for Defendant(s) IOVATE HEALTH SCIENCES, INC.; IOVATE HEALTH SCIENCES U.S.A., INC.; MUSCLETECH RESEARCH AND DEVELOPMENT, INC.; VITAMIN SHOPPE INDUSTRIES, INC.; and GENERAL NUTRITION CENTERS, INC. Dated: July 29, 2009 JAMES M. LINDSAY GENE J. STONEBARGER RICHARD D. LAMBERT LINSDAY & STONEBARGER BY: /s/ Gene J. Stonebarger_______________ GENE J. STONEBARGER (as authorized on July 27, 2009) Attorneys for Plaintiffs ALEJANDRO M. JIMENEZ and CHRISTOPHER LOPEZ, and all others similarly situated and the general public IT IS SO ORDERED. Dated: 7/29/2009 3 /s/ John A. Mendez____________ The Honorable John A. Mendez STIPULATION AND ORDER PDF created with pdfFactory trial version www.pdffactory.comTO STAY PROCEEDINGS sf-2704220 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 4 CERTIFICATE OF PDF created with pdfFactory trial version www.pdffactory.com SERVICE sf-2704220 Certificate of Service I hereby certify that on July 29, 2009, I served the foregoing: STIPULATION AND ORDER TO STAY PROCEEDINGS PENDING MDL CONSIDERATION with the Clerk of the court using the CM/ECF system which will send notification of such filing to the following: Gene J. Stonebarger LINDSAY & STONEBARGER 620 Coolidge Drive, Suite 225 Folsom, CA 95630 /s/Alexandria A. Amezcua___ Alexandria A. Amezcua California Bar No. 247507 Attorney for Defendants MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 Telephone: (415) 268-6557 Fax: (415) 268-7522 Email: aamezcua@mofo.com

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