Cardenas v. NBTY, Inc. et al

Filing 9

STIPULATION and ORDER 8 re filing of Amended Complaint and for extension of time signed by Senior Judge Lawrence K. Karlton on 7/14/2011. Defendants need not responde to initial Complaint. Plaintiff shall file First Amended Complaint on 7/25/2011 to add claim for damages in CLRA cause of action. Defendants, w/out waiving any defenses or submitting to jurisdiction of Court, shall have through and including 8/24/2011 to respond. (Marciel, M)

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Lee L. Auerbach (SBN 151173)
[e-mail]
SIDLEY AUSTIN LLP
555 West Fifth Street, Suite 4000
Los Angeles, California 90013-1010
Telephone:
[phone]
Facsimile:
[phone]
Kara L. McCall (Pro Hac Vice application to be submitted)
[e-mail]
SIDLEY AUSTIN LLP
One South Dearborn
Chicago, IL 60603
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendants
NBTY, INC. and REXALL
SUNDOWN, INC.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LILIANA CARDENAS, On Behalf of Herself )
and All Other Similarly Situated California
) Case No. 2:11 CV-01615-LKK-EFB
Residents,
)
) STIPULATION AND ORDER RE FILING
Plaintiff,
) OF AMENDED COMPLAINT AND
EXTENSION OF DEFENDANTS’ TIME TO
) RESPOND
vs.
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NBTY, INC., a Delaware corporation and
)
REXALL SUNDOWN, INC., a Florida
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corporation,
)
)
Defendants.
_______________________________________)

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The parties, by and through their undersigned counsel, hereby stipulate as follows:

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WHEREAS, on June 14, 2011, Plaintiff sent to both Defendants by certified mail a

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letter that Plaintiff asserts meets the requirements of California Civil Code § 1782(a); and

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WHEREAS, pursuant to California Civil Code § 1013(a), service of Plaintiff’s

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June 14, 2011 letter was completed ten calendar days after mailing, i.e., on June 24, 2011; and

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STIPULATION AND [PROPOSED] ORDER RE FILING OF AMENDED COMPLAINT
AND EXTENSION OF DEFENDANTS’ TIME TO RESPOND
LA1 2171257v.1

WHEREAS, Plaintiff served the Summons and Complaint on each Defendant on

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June 17, 2011; and
WHEREAS, Defendants’ response to the Complaint currently is due on July 8, 2011;

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and

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WHEREAS, Plaintiff will file a First Amended Complaint on July 25, 2011 without

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leave of Court to add a claim for damages in her CLRA cause of action pursuant to California Civil

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Code § 1782(d); and
WHEREAS, the parties agree that it would be inefficient and unduly burdensome for

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Defendants to respond to the initial Complaint on July 8, 2011 given that Plaintiff intends to file a

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First Amended Complaint on or before July 25, 2011 to which Defendants also would be required to

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respond; and
WHEREAS, the parties further agree that Defendants shall be given 30 days to

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respond to the First Amended Complaint, once filed; and
WHEREAS, the parties agree that by entering into this stipulation Defendants do not

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waive any defenses or submit to the jurisdiction of the Court,

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NOW, THEREFORE, the parties stipulate as follows:

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1.

Defendants need not respond to the initial Complaint;

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2.

Plaintiff shall file a First Amended Complaint on July 25, 2011 to add a claim

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for damages in her CLRA cause of action; and
3.

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Defendants, without waiving any defenses or submitting to the jurisdiction of

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the Court, shall have through and including August 24, 2011 to respond to the First Amended

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Complaint.

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STIPULATION AND [PROPOSED] ORDER RE FILING OF AMENDED COMPLAINT
AND EXTENSION OF DEFENDANTS’ TIME TO RESPOND
LA1 2171257v.1

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Dated: July 5, 2011

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SIDLEY AUSTIN LLP
LEE L. AUERBACH

By: /s/ Lee L. Auerbach
Lee L. Auerbach

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Attorneys for Defendants NBTY, INC.
and REXALL SUNDOWN, INC

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Dated: July 5, 2011

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BONNETT, FAIRBOURN, FRIEDMAN &
BALINT, P.C.
ANDREW S. FRIEDMAN
ELAINE A. RYAN
PATRICIA N. SYVERSON

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By: /s/ Patricia N. Syverson
Patricia N. Syverson

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Attorneys for Plaintiff Liliana Cardenas

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IT IS SO ORDERED.

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Dated: July 14, 2011

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STIPULATION AND [PROPOSED] ORDER RE FILING OF AMENDED COMPLAINT
AND EXTENSION OF DEFENDANTS’ TIME TO RESPOND
LA1 2171257v.1

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PROOF OF SERVICE
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES

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ss

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I am employed in the County of Los Angeles, State of California. I am over the age
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of 18 and not a party to the within action. My business address is Sidley Austin LLP, 555 West
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Fifth Street, Suite 4000, Los Angeles, California 90013-1010.
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On July 5, 2011, I served the foregoing document described as: STIPULATION
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AND [PROPOSED] ORDER RE FILING OF AMENDED COMPLAINT AND EXTENSION OF
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DEFENDANTS’ TIME TO RESPOND AND [PROPOSED] ORDER RE FILING OF AMENDED
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COMPLAINT AND EXTENSION OF DEFENDANTS’ TIME TO RESPOND on all interested
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parties in this action as follows:
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BONNETT, FAIRBOURN, FRIEDMAN &
BALINT, P.C.
ANDREW S. FRIEDMAN
ELAINE A. RYAN
PATRICIA N. SYVERSON
2901 N. Central Ave., Suite 1000
Phoenix, AZ 85012
[e-mail]
[e-mail]
[e-mail]

BONNETT, FAIRBOURN, FRIEDMAN
& BALINT, P.C.
TODD D. CARPENTER
600 W. Broadway., Suite 900
San Diego, CA 92101
[e-mail]
[By Mail]

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[On CM/ECF]
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FUTTERMAN HOWARD ASHLEY &
WELTMAN, P.C.
STEWART WELTMAN
122 S. Michigan Avenue, Suite 1850
Chicago, IL 60603
[e-mail]

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[By Mail]

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[x]

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(ON CM/ECF) I electronically filed and served the document on CM/ECF.

[x]

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(BY MAIL) I deposited such envelope in the mail at Los Angeles, California.

The envelope was mailed with postage thereon fully prepaid. I am “readily familiar” with the firm’s
PROOF OF SERVICE
LA1 2171257v.1

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practice of collection and processing correspondence for mailing. It is deposited with the U.S. postal

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service on that same day in the ordinary course of business. I am aware that on motion of a party

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served, service is presumed invalid if the postal cancellation date or postage meter date is more than

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one day after the date of deposit for mailing in the affidavit.

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I declare that I am a registered user of the CM/ECF system.

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I served the foregoing document by electronically filing the document via the

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CM/ECF system maintained by the court.
I declare under penalty of perjury under the laws of the United States of America that

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the above is true and correct.
Executed on July 5, 2011, at Los Angeles, California.

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/s/ Lee L. Auerbach
Lee L. Auerbach

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PROOF OF SERVICE
LA1 2171257v.1