Elvey v. TD Ameritrade, Inc.

Filing 24

Elvey v. TD Ameritrade, Inc.

Doc. 24

Case 3:07-cv-02852-MJJ

Document 24

Filed 08/23/2007

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MAYER, BROWN, ROWE & MAW LLP LEE H. RUBIN (SBN 141331) SHIRISH GUPTA (SBN 205584) Two Palo Alto Square, Suite 300 Palo Alto, CA 94306 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Counsel for Defendant TD AMERITRADE, Inc.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ­ SAN FRANCISCO DIVISION MATTHEW ELVEY, an individual, and GADGETWIZ, INC., an Arizona corporation, on their own behalf and on behalf of all others similarly situated, Plaintiffs v. TD AMERITRADE, INC., a New York corporation, and DOES 1 to 100, Defendants. Case No. C-07-2852 MJJ DEFENDANT TD AMERITRADE, INC.'S REPLY TO ITS MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND CLASS CERTIFICATION Hon. Martin J. Jenkins Date: September 18, 2007 Time: 9:30 a.m. Location: Courtroom 11, 19th Floor 450 Golden Gate Ave. San Francisco, CA 94102

REPLY TO MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND CLASS CERTIFICATION; CASE NO. C 07 2852 MJJ Dockets.Justia.com

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Defendant TD AMERITRADE, Inc. ("TD AMERITRADE") does not intend to offer a point-by-point rebuttal to Plaintiffs' opposition to TD AMERITRADE's motion to extend the time for filing its opposition to Plaintiff's Motion for a Preliminary Injunction. However, a few particularly misleading suggestions contained in Plaintiffs' submission warrant a brief response. First, in footnote 1, Plaintiffs contend that TD AMERITRADE's motion is deficient because it fails to mention a prior extension of the briefing schedule. However, paragraph 3 of the

previously submitted Declaration of Lee H. Rubin, explicitly states that "Soon thereafter, the Court approved a stipulated extension of the briefing schedule to give TD AMERITRADE time to consider and respond to the motion." For the Court's convenience, TD AMERITRADE attaches hereto the June 25, 2007 Stipulation and Order Resetting Motion to Dismiss and Motion for Preliminary Injunction. More importantly, Plaintiffs' Opposition wrongly implies that the stipulated extension was only to accommodate TD AMERITRADE's counsel's scheduling conflict. See Plaintiff's Opposition at 1. That is not true. In fact, through the stipulation, Plaintiffs requested and received an extension of time for their opposition to TD AMERITRADE's Motion to Dismiss based upon Plaintiffs' counsel's "scheduling conflict with the current hearing date of August 28, 2007 for the Motion to Dismiss." See June 25 Order at 1. Thus, contrary to Plaintiffs'

submission, the previous extension was requested in part to accommodate the scheduling conflicts of both parties' counsel. Plaintiffs are also incorrect in representing that the parties have reached agreement on the terms of a stipulated protective order. The negotiations over the stipulated protective order, which have taken place almost entirely between undersigned counsel and Mr. Preston's colleague, Scott Kamber, are ongoing. Although substantial progress has been made, no final agreement has been reached. Undersigned counsel intends to continue to attempt to finalize the stipulated protective order with Mr. Kamber, who is currently in Southeast Asia. Supplemental Declaration of Lee H. Rubin ¶¶ 2-3. Finally, Plaintiffs' submission fails to establish that they will be unduly prejudiced by the modest two-week extension of time, which will afford TD AMERITRADE an adequate -1REPLY TO MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND CLASS CERTIFICATION; CASE NO. C 07 2852 MJJ

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opportunity to evaluate the newly discovered information, further confer with regulators and revise its opposition accordingly, if necessary. Dated: August 23, 2007 MAYER, BROWN, ROWE & MAW LLP By: /s/ Lee H. Rubin Lee H. Rubin Counsel for Defendant TD AMERITRADE, Inc. Of Counsel MAYER, BROWN, ROWE & MAW LLP Robert J. Kriss 71 South Wacker Drive Chicago, Illinois 60606-4637

-2REPLY TO MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND CLASS CERTIFICATION; CASE NO. C 07 2852 MJJ

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MAYER, BROWN, ROWE & MAW LLP LEE H. RUBIN (SBN 141331) SHIRISH GUPTA (SBN 205584) Two Palo Alto Square, Suite 300 Palo Alto, CA 94306 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendant TD Ameritrade, Inc.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA--SAN FRANCISCO DIVISION

MATTHEW ELVEY, an individual, and GADGETWIZ, INC., an Arizona corporation, on their own behalf and on behalf of all others similarly situated, Plaintiffs v. TD AMERITRADE, INC., a New York corporation, and DOES 1 to 100,

Case No. C 07 2852 MJJ STIPULATION AND [PROPOSED] ORDER RESETTING MOTION TO DISMISS AND MOTION FOR PRELIMINARY INJUNCTION Judge: Martin J. Jenkins

Defendants.

WHEREAS, Plaintiff Matthew Elvey and Gadgetwiz.com filed a First Amended Complaint against Defendant TD Ameritrade, Inc. ("TD AMERITRADE"), on June 28, 2007, and Motion For Preliminary Injunction on July 10, 2007; WHEREAS, TD AMERITRADE field a Motion to Dismiss the First Amended Complaint on July 18, 2007;

STIPULATION AND [PROPOSED] ORDER RESETTING MOTION TO DISMISS AND MOTION FOR PRELIMINARY INJUNCTION Case No. C 07 2852 MJJ

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WHEREAS, pursuant to Civil Local Rule 7-2, the hearing for Plaintiffs' Motion for Preliminary Injunction is currently set for August 14, 2007, and the hearing for TD AMERITRADE's Motion to Dismiss is currently set for August 28, 2007; WHEREAS, on June 29, 2007, the Court ordered a case management conference to be held at 2:00 p.m. on September 18, 2007; WHEREAS, TD AMERITRADE's counsel has a scheduling conflict with the current hearing date of August 14, 2007 for the Motion for Preliminary Injunction and Plaintiffs' counsel has a scheduling conflict with the current hearing date of August 28, 2007 for the Motion to Dismiss; WHEREAS, the Motion to Dismiss and Motion for Preliminary Injunction raise common issues of law such that it will likely be more efficient for the Court to consolidate the hearing dates for the two motions; WHEREAS, it would be efficient for the parties, and may be more efficient for the Court, to align the hearing dates for the pending motions with the current date for the case management conference, September 18, 2007; WHEREAS, the proposed schedule set forth in this stipulation will not postpone any deadline set by the Court and serves judicial economy; IT IS HEREBY STIPULATED, by and between the parties, that pursuant to Civil Local Rule 6-2, Plaintiffs' Motion for Preliminary Injunction and TD AMERITRADE'S Motion to Dismiss shall both be set for September 18, 2007; IT IS FURTHER STIPULATED that TD AMERITRADE will file its Opposition to the Motion for Preliminary Injunction no later than August 23, 2007, and that Plaintiffs will file their Opposition to the Motion to Dismiss no later than August 27, 2007. The parties shall file their respective reply briefs no later than September 4, 2007. IT IS FURTHER STIPULATED that this stipulation shall not be construed to reflect the position of any of the parties concerning the urgency or absence of any urgency of the relief sought in the Motion for Preliminary Injunction. 1
STIPULATION AND [PROPOSED] ORDER RESETTING MOTION TO DISMISS AND MOTION FOR PRELIMINARY INJUNCTION CASE NO. C 07 2852 MJJ

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Dated: July 20, 2007 By: /s/ Alan Himmelfarb LAW OFFICES OF ALAN HIMMELFARB Alan Himmelfarb 2757 Leonis Blvd. Los Angeles, CA 90058 Telephone: [phone] Fax: [phone] [e-mail] Attorneys for Plaintiffs

Dated: July 20, 2007

By:

/s/ Lee H. Rubin MAYER, BROWN, ROWE & MAW LLP Lee H. Rubin Attorneys for Defendant TD AMERITRADE

E-Filer's Attestation: Pursuant to General Order No. 45, Section X (B), Lee H. Rubin hereby attests that the signatory's concurrence in the filing of this document has been obtained.

[Proposed] Order Pursuant to Stipulation, and for good cause shown, IT IS SO ORDERED. 7/_______ DATED:____25/2007 ___ ______________________________ Martin J. Jenkins UNITED STATES DISTRICT JUDGE

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STIPULATION AND [PROPOSED] ORDER RESETTING MOTION TO DISMISS AND MOTION FOR PRELIMINARY INJUNCTION CASE NO. C 07 2852 MJJ