Kreek v. Wells Fargo & Company et al

Filing 106

STIPULATION AND ORDER RE: 105 SCHEDULING AND RESOLVING PLAINTIFFS' MOTION TO STAY DISCOVERY. Signed by Judge Richard Seeborg on 5/7/10. (cl, COURT STAFF) (Filed on 5/7/2010)

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*E-Filed 5/7/10* 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 GILBERT R. SEROTA (No. 75305) Email: gserota@howardrice.com CHRISTINE HUBBARD (No. 220105) Email: chubbard@howardrice.com JEREMY T. KAMRAS (No. 237377) Email: jkamras@howardrice.com HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN A Professional Corporation Three Embarcadero Center, 7th Floor San Francisco, California 94111-4024 Telephone: 415/434-1600 Facsimile: 415/677-6262 Attorneys for Defendants WELLS FARGO & COMPANY, WELLS FARGO FUNDS MANAGEMENT, LLC, AND WELLS FARGO FUNDS TRUST [Additional counsel listed on signature page.] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION EDWARD LEE, EDWARD ARSENAULT, EMIL DE BACCO, RICHARD HINTON, ARNOLD KREEK, and MARGRET MACHT, Plaintiffs, v. WELLS FARGO & COMPANY, WELLS FARGO FUNDS MANAGEMENT, LLC, and WELLS FARGO FUNDS TRUST, Defendants. No. 08-CV-1830 RS Action Filed: April 4, 2008 STIPULATION AND [PROPOSED] ORDER RE SCHEDULING AND RESOLVING PLAINTIFFS' MOTION TO STAY DISCOVERY Date: Time: Judge: Dept: May 27, 2010 1:30 p.m. Hon. Richard Seeborg Courtroom 3, 17th Floor STIPULATION AND [PROPOSED] ORDER 08-CV-1830 RS 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 WHEREAS on August 20, 2009, the Honorable William H. Alsup granted in part and denied in part Defendants' motion to dismiss, and in so doing, dismissed without leave to amend all class action allegations in the above-captioned matter (Dkt. 86); WHEREAS on October 16, 2009, Judge Alusp entered a case management order setting forth a discovery and trial schedule (Dkt. 94); WHEREAS on November 4, 2009, Judge Alsup referred the parties to Magistrate Judge Joseph C. Spero for mediation or settlement (Dkt. 96); WHEREAS on January 27, 2009, the parties had a telephonic conference call with Judge Spero wherein they agreed to exchange certain information in anticipation of settlement discussions (see Dkt. 99), and therefore entered into a stipulation by which the parties were to exchange that information and discuss settlement by April 9, 2010 (Dkt. 100); WHEREAS on March 19, 2010, this matter was reassigned to the Honorable Richard Seeborg (Dkt. 101); WHEREAS the exchange of settlement information was unproductive, and therefore, facing approaching discovery deadlines, Defendants sought to move forward with discovery by requesting dates on which to depose Plaintiffs; WHEREAS in dismissing the class allegations, Judge Alsup relied in part on In re American Funds Securities Litigation, 556 F. Supp. 2d 1100 (C.D. Cal. 2008), which is presently on appeal to the Ninth Circuit Court of Appeals; WHEREAS Plaintiffs contend that the decision in In re American Funds will likely bear on Judge Alsup's ruling and, therefore, on April 23, 2010, Plaintiffs sought a stay of discovery pending the Ninth Circuit's decision in In re American Funds (Dkt. 104); WHEREAS the Ninth Circuit stayed its ruling in In re American Funds until the Supreme Court issued a decision in Merck & Co., Inc. v. Reynolds; WHEREAS on April 27, 2010, the Supreme Court issued a decision in Merck; WHEREAS on May 3, 2010, the Ninth Circuit issued an order requiring the parties in In re American Funds to brief the import of Merck by June 2, 2010; STIPULATION AND [PROPOSED] ORDER 08-CV-1830 RS -1- 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 WHEREAS should the Ninth Circuit reverse In re American Funds, briefing will likely be required to assess its impact, if any, on this matter; WHEREAS the parties agree that in light of the fact that the Supreme Court issued a decision in Merck and therefore anticipate a decision in In re American Funds relatively soon, an open-ended stay of discovery is not warranted; but, WHEREAS the parties further agree that given that they have engaged in limited discovery to date and given the continued potential for uncertainty regarding the impact, if any, of In re American Funds, a modification of the present discovery and trial schedule is warranted; NOW THEREFORE, subject to this Court's approval, the undersigned parties hereby stipulate to the following schedule intended to permit resolution of the issues raised above: 1. 2. Non-expert fact discovery shall be completed by July 1, 2011. Each party shall serve a list of issues on which it will offer any expert testimony in its case-in-chief by July 1, 2011. 3. The last date for designation of expert testimony and disclosure of full expert reports under Rule 26(a)(2) as to any issue on which a party has the burden of proof ("opening reports") shall be August 1, 2011. 4. All other parties must disclose any expert reports on the same issue ("opposition reports") by August 31, 2011. 5. The party with the burden of proof must disclose any reply reports rebutting specific material in opposition reports by September 20, 2011. 6. If the party with the burden of proof neglects to make a timely disclosure, the other side, if it wishes to put in expert evidence on the same issue anyway, must still disclose its expert report by August 31, 2011. In that event, the party with the burden of proof on the issue may then file a reply expert report by September 20, 2011, subject to possible exclusion for "sandbagging" and, at all events, any such reply material may be presented at trial only after, if at all, the other side actually presents expert testimony to which the reply is responsive. STIPULATION AND [PROPOSED] ORDER 08-CV-1830 RS -2- 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 7. 8. 9. Expert discovery shall be completed by October 4, 2011. The last date to file dispositive motions shall be October 25, 2011. A jury trial shall begin on or after February 28, 2012. 10. Plaintiffs hereby withdraw their pending Motion to Stay Discovery (Dkt. 104). DATED: May 6, 2010. GILBERT R. SEROTA CHRISTINE HUBBARD JEREMY T. KAMRAS HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN A Professional Corporation By: /s/ Gilbert R. Serota GILBERT R. SEROTA Attorneys for Defendants WELLS FARGO & COMPANY, WELLS FARGO FUNDS MANAGEMENT, LLC, and WELLS FARGO FUNDS TRUST REESE RICHMAN LLP MICHAEL R. REESE 230 Park Avenue, 10th Floor New York, NY 10169 WHATLEY DRAKE & KALLAS, LLC DEBORAH CLARK WEINTRAUB ELIZABETH ROSENBERG 1540 Broadway, 37th Floor New York, NY 10036 By: /s/ Deborah Clark Weintraub DEBORAH CLARK WEINTRAUB Attorneys for Plaintiffs EDWARD LEE, EDWARD ARSENAULT, EMIL DE BACCO, RICHARD HINTON, ARNOLD KREEK and MARGRET MACHT DATED: May 6, 2010. STIPULATION AND [PROPOSED] ORDER 08-CV-1830 RS -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 DECLARATION PURSUANT TO GENERAL ORDER 45, X.B I, GILBERT R. SEROTA, hereby declare pursuant to General Order 45, X.B, that I have obtained the concurrence in the filing of this document from each of the other signatories listed above. I declare under penalty of perjury that the foregoing declaration is true and correct. Executed on May 6, 2010, at San Francisco, California. /s/ Gilbert R. Serota GILBERT R. SEROTA IT IS SO ORDERED. 5/7 DATED: __________________, 2010 THE HONORABLE RICHARD SEEBORG UNITED STATES DISTRICT JUDGE STIPULATION AND [PROPOSED] ORDER 08-CV-1830 RS -4-

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