Elvey v. TD Ameritrade, Inc.

Filing 33

STIPULATION and Proposed Order Continuing the Hearing Dates on Motions to Dismiss and for Preliminary Injunction by TD Ameritrade, Inc.. (Gupta, Shirish) (Filed on 9/10/2007)

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Elvey v. TD Ameritrade, Inc. Doc. 33 Case 3:07-cv-02852-MJJ Document 33 Filed 09/10/2007 Page 1 of 3 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 Alan Himmelfarb LAW OFFICES OF ALAN HIMMELFARB 2757 Leonis Blvd Los Angeles, CA 90058 Telephone: (323) 585-8696 Fax: (323) 585-8198 consumerlaw1@earthlink.net Scott A. Kamber Ethan Preston KAMBER & ASSOCIATES, LLC 11 Broadway, 22d Floor New York, NY 10004 Telephone: (212) 920-3072 Fax: (212) 202-6364 skamber@kolaw.com epreston@kolaw.com Counsel for Plaintiffs 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 STIPULATED [PROPOSED] ORDER CONTINUING HEARING DATE ON MOTIONS TO DISMISS AND FOR PRELIMINARY INJUNCTION Judge: Martin J. Jenkins GROUNDS 1. Plaintiffs 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 and Class Certification on July 10, 2007. 2. TD Ameritrade filed a Motion to Dismiss the Plaintiffs' First Amended Complaint on July 18, 2007. -1STIPULATED [PROPOSED] ORDER CONTINUING HEARING DATE CASE NO.: C-07-02852-MJJ 44040231.1 Dockets.Justia.com Case 3:07-cv-02852-MJJ Document 33 Filed 09/10/2007 Page 2 of 3 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 2007. 3. On July 20, 2007, the parties filed a stipulated proposed order extending the briefing schedules and continuing the hearing date for the Motions to September 18, 2007, and the Court approved the stipulated proposed order on July 26, 2007. The parties' respective Motions are presently scheduled to be heard by the Court at 2 p.m. on September 18, 2007. 4. TD Ameritrade filed a Motion for Extension of Time to File Opposition to Plaintiffs' Motion for Preliminary Injunction and Class Certification on August 22, 2007, asserting that there was a significant development in its internal investigation of possible unauthorized acquisition of customer e-mail addresses from its computer systems, and that this development may significantly affect its arguments in opposition to Plaintiffs' Motion for Preliminary Injunction. 5. Plaintiffs opposed TD Ameritrade's Motion for Extension of Time on the grounds that the Motion did not set forth with particularity the reasons for the extension, as required under Civil L.R. 6-3(a)(1). Plaintiffs filed their opposition to the Motion for Extension of Time on August 23, 2007. 6. The Court denied TD Ameritrade's Motion for Extension of Time on August 23, 7. The parties recently completed negotiating the stipulated protective order, and the Court approved and entered the stipulated protective order on September 5, 2007. 8. Pursuant to the protective order, TD Ameritrade has since provided Plaintiffs further information that clarified the basis for its prior request for an extension described in Paragraph 4. Based on this clarification, the Parties believe that the sharing of further information coupled with an in-person meeting between the parties prior to the hearing on the Motion for Preliminary Injunction regarding the subject matter of the Motion for Preliminary Injunction serves each parties' respective interests, as well as the interests of judicial economy. 9. The earliest date the parties' respective counsel can schedule such a meeting is September 17, 2007, in the New York area. -2STIPULATED [PROPOSED] ORDER CONTINUING HEARING DATE CASE NO.: C-07-02852-MJJ 44040231.1 Case 3:07-cv-02852-MJJ Document 33 Filed 09/10/2007 Page 3 of 3 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 10. Therefore, the parties believe that all interests involved (including the Court's) would be best served by continuing the hearing date for two weeks. STIPULATION 1. IT IS HEREBY STIPULATED, pursuant to Local Rule 6-2, that Plaintiffs' Motion for Preliminary Injunction and TD Ameritrade's Motion to Dismiss shall both be set for October 2, 2007 at 9:30 a.m. in Courtroom 11, 19th Floor, 450 Golden Gate Ave., San Francisco, CA 94102. 2. 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. IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. Date: September 10, 2007 By: /s/ Alan Himmelfarb Alan Himmelfarb Counsel for Plaintiffs Matthew Elvey and Gadgetwiz, Inc. /s/ Lee H. Rubin Lee H. Rubin Mayer Brown LLP Counsel for Defendant TD AMERITRADE, Inc. Filer's Attestation: Pursuant to General Order No. 45, Section X(B), Shirish Gupta hereby attests that the signatories' concurrence in the filing of this document has been obtained. Date: September 10, 2007 By: PURSUANT TO STIPULATION, IT IS SO ORDERED. Date: By: THE HONORABLE MARTIN J. JENKINS UNITED STATES DISTRICT COURT JUDGE -3STIPULATED [PROPOSED] ORDER CONTINUING HEARING DATE CASE NO.: C-07-02852-MJJ 44040231.1

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