Aspex Eyewear, Inc. v. Vision Service Plan et al

Filing 70

STIPULATION and ORDER signed by Judge John A. Mendez on 7/7/10 ORDERING that leave to file Plaintiff Aspex Eyewear, Inc's AMENDED COMPLAINT is GRANTED. The AMENDED COMPLAINT IS DEEMED FILED and properly served as of the date of Stipulation was filed and electronically served upon counsel for Defendant Vision Service Plan. Defendant Vision Service Plan shall have until 8/27/2010 to file and serve a response to the AMENDED COMPLAINT. (Mena-Sanchez, L)

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KATHLEEN E. FINNERTY - (SBN 157638) (Counsel for Service) NANCY J. DOIG - (SBN 226593) GREENBERG TRAURIG, LLP 1201 K Street, Suite 1100 Sacramento, CA 95814-3938 Telephone: [phone] Facsimile: [phone] [e-mail], [e-mail] Attorneys for Plaintiff ASPEX EYEWEAR, INC.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

ASPEX EYEWEAR, INC.,

) ) Plaintiff, ) ) v. ) ) ) VISION SERVICE PLAN; MARCHON ) EYEWEAR, INC.; ALTAIR EYEWEAR, INC.,) ) Defendants. ) ) ) )

CASE NO. 2:10 CV 00632 JAM-GGH STIPULATION AND ORDER GRANTING ASPEX EYEWEAR, INC. LEAVE TO FILE A FIRST AMENDED COMPLAINT COMPLAINT FILED: March 17, 2010 JUDGE: Hon. John A. Mendez

Plaintiff Aspex Eyewear, Inc. ("Aspex") filed a Complaint naming as Defendants Vision Service Plan ("VSP"), Marchon Eyewear, Inc. ("Marchon"), and Altair Eyewear, Inc. on March 17, 2010. Aspex filed a Notice of Voluntary Dismissal Without Prejudice as to Defendants Marchon and Altair Only on May 28, 2010. VSP filed a motion to dismiss on April 30, 2010, more than twenty-one days ago. Aspex now seeks to file an Amended Complaint in which it amends the allegations as to VSP. Fed. R. Civ. P. 15(a)(2) permits a party to file an amended complaint after the time has elapsed to file an amendment as a matter of course, "with the opposing party's written consent or the court's leave."

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1 STIPULATION AND [PROPOSED] ORDER GRANTING ASPEX EYEWEAR, INC. LEAVE TO FILE A FIRST AMENDED COMPLAINT

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WHEREFORE, IT IS HEREBY STIPULATED by and between Aspex and VSP
through their respective attorneys of record that Plaintiff Aspex may file an Amended Complaint, a copy of which is attached hereto. IT IS FURTHER STIPULATED that the attached Amended Complaint shall be deemed filed and properly served on the date this stipulation is filed with the Court and electronically served on counsel for VSP. IT IS FURTHER STIPULATED that VSP shall have until August 27, 2010 to file and serve a response to the Amended Complaint.

DATED: July 2, 2010

GREENBERG TRAURIG, LLP By: /s/ Nancy J. Doig ____ Kathleen E. Finnerty (SBN 157638) Nancy J. Doig (SBN 226593) Attorneys for Plaintiff ASPEX EYEWEAR, INC.

DATED: July 2, 2010

REINHART BOERNER VAN DEUREN S.C. By: /su Scott W. Hansen (as authorized 7/2/10) Scott W. Hansen (Admitted Pro Hac Vice) Attorneys for Defendant VISION SERVICES PLAN

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2 STIPULATION AND [PROPOSED] ORDER GRANTING ASPEX EYEWEAR, INC. LEAVE TO FILE A FIRST AMENDED COMPLAINT

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ORDER . PURSUANT TO STIPULATION, LEAVE TO FILE PLAINTIFF ASPEX EYEWEAR, INC.'S AMENDED COMPLAINT ATTACHED HERETO IS GRANTED. THE AMENDED COMPLAINT IS DEEMED FILED AND PROPERLY SERVED AS OF THE DATE THE STIPULATION WAS FILED AND ELECTRONICALLY SERVED UPON COUNSEL FOR DEFENDANT VISION SERVICE PLAN. DEFENDANT VISION SERVICE PLAN SHALL HAVE UNTIL AUGUST 27, 2010 TO FILE AND SERVE A RESPONSE TO THE AMENDED COMPLAINT.
Dated: July 7, 2010

/s/ John A. Mendez______________ JOHN A. MENDEZ

United States District Court Judge

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3 STIPULATION AND [PROPOSED] ORDER GRANTING ASPEX EYEWEAR, INC. LEAVE TO FILE A FIRST AMENDED COMPLAINT