Gabana Gulf Distribution, Ltd. et al v. Gap International Sales, Inc. et al

Filing 323

STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE. Signed by Judge Charles R. Breyer on 9/24/2009. (ls, COURT STAFF) (Filed on 9/24/2009)

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KEKER & VAN NEST, LLP CHRISTA M. ANDERSON - #184325 DAN JACKSON - #216091 710 Sansome Street San Francisco, CA 94111-1704 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants GAP INTERNATIONAL SALES, INC., THE GAP, INC., BANANA REPUBLIC, LLC, and OLD NAVY, LLC

HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN A Professional Corporation MARTIN R. GLICK - #. 40187 SHAUDY DANAYE-ELMI - # 242083 Three Embarcadero Center, 7th Floor San Francisco, California 94111-4024 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Plaintiffs GABANA GULF DISTRIBUTION, LTD., and GABANA DISTRIBUTION, LTD.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

GABANA GULF DISTRIBUTION, LTD., a company organized under the laws of the United Kingdom, and GABANA DISTRIBUTION, LTD., a company organized under the laws of the United Kingdom, Plaintiffs, v. GAP INTERNATIONAL SALES, INC., a Delaware corporation, THE GAP, INC., a Delaware corporation, BANANA REPUBLIC, LLC, a Delaware limited liability company, and OLD NAVY, LLC, a Delaware limited liability company, Defendants.

Case No. C 06 2584 CRB STIPULATION AND [PROPOSED] ORDER OF DISMISSAL WITH PREJUDICE

451137.02

STIPULATION AND [PROPOSED] ORDER OF DISMISSAL WITH PREJUDICE CASE NO. C 06-2584 CRB

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STIPULATION Plaintiffs (collectively, "Gabana") and defendants (collectively, "Gap") hereby stipulate and agree as follows: 1. Gabana filed its original complaint in this action on April 14, 2006, and filed its

operative Second Amended Complaint on October 31, 2007, asserting claims for breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, and unfair competition. See Docket No. 241. 2. Gap counterclaimed for breach of contract, breach of the implied covenant of

good faith and fair dealing, and unfair competition. See Docket No. 36. 3. On November 19, 2007, this Court granted summary judgment for Gap on

Gabana's claims for breach of contract and fraud, but denied Gap's motion for summary judgment on Gabana's claims for breach of the implied covenant of good faith and fair dealing and unfair competition. See Docket No. 285. 4. The Court also granted summary judgment for Gabana on Gap's claim for breach

of the implied covenant (see id.), but denied Gabana's motion for summary judgment on Gap's contract claim, a ruling the Court reaffirmed in denying Gabana's motion for reconsideration on December 10, 2007. See Docket No. 299. 5. The claims remaining in this case after this Court's summary-judgment rulings

were Gabana's claims for breach of the implied covenant of good faith and fair dealing, and for unfair competition; and Gap's claim for breach of contract (the "Remaining Claims"). 6. On December 17, 2007, the parties stipulated that in the event that the Court of

Appeals were to affirm this Court's summary-judgment ruling on Gabana's breach of contract claim, the parties would dismiss all of the Remaining Claims with prejudice, each side bearing its own fees and costs, thus ending this case. See Docket No. 300-2 ¶ 3. 7. The Court of Appeals for the Ninth Circuit affirmed this Court's summary-

judgment ruling on August 24, 2009. See Docket No. 319. On September 17, 2009, the Ninth Circuit denied Gabana's Petition for Panel Rehearing. See Docket No. 321. 8. Pursuant to their December 17, 2007 stipulation, therefore, the parties now 1

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STIPULATION AND [PROPOSED] ORDER OF DISMISSAL WITH PREJUDICE CASE NO. C 06-2584 CRB

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respectfully request that this Court dismiss the Remaining Claims with prejudice, each side bearing its own fees and costs, thus ending this case.1 SO STIPULATED, Dated: September 24, 2009 KEKER & VAN NEST, LLP

By:

/s/ Dan Jackson ___________________ DAN JACKSON Attorneys for Defendants GAP INTERNATIONAL SALES, INC., THE GAP, INC., BANANA REPUBLIC, LLC, and OLD NAVY, LLC

Dated: September 24, 2009

HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN

By: Concurrence obtained per General Order 45.X.B MARTIN R. GLICK Attorneys for Plaintiffs GABANA GULF DISTRIBUTION, LTD., and GABANA DISTRIBUTION, LTD.

As in the parties' December 17, 2007 stipulation, however, Gap specifically reserves its right to seek indemnification from Gabana, based on the indemnification provisions in Gap's contracts with Gabana, for legal fees, costs and other expenses incurred in connection with Roots Ready Made Garments Co. W.L.L., v. The Gap, Inc. et al., Case No. C 07 3363 CRB (N.D. Cal.). Gabana disputes that Gap has any legal basis for obtaining such indemnification. 2
STIPULATION AND [PROPOSED] ORDER OF DISMISSAL WITH PREJUDICE CASE NO. C 06-2584 CRB

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451137.02

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 September 24, 2009 Date:________________

[PROPOSED] ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED: Gabana's claims for breach of the implied covenant of good faith and fair dealing, and unfair competition are HEREBY DISMISSED WITH PREJUDICE. Gap's claim for breach of contract is HEREBY DISMISSED WITH PREJUDICE. This case is now closed. The parties shall bear their own fees and costs. IT IS SO ORDERED.

_____________________________________ HONORABLE CHARLES R. BREYER

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STIPULATION AND [PROPOSED] ORDER OF DISMISSAL WITH PREJUDICE CASE NO. C 06-2584 CRB