Acutate Corporation v. Washington Mutual Bank

Filing 58

ORDER GRANTING LEAVE TO AMEND (ts, COURT STAFF) (Filed on 8/14/2009)

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JAMES A. DiBOISE, State Bar No. 83296 Email: [e-mail] CHARLES TAIT GRAVES, State Bar No. 197923 Email: [e-mail] BRIAN MENDONCA, State Bar No. 209728 Email: [e-mail] WILSON SONSINI GOODRICH & ROSATI Professional Corporation One Market Street Spear Tower, Suite 3300 San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff ACTUATE CORPORATION UNITED STATES DISTRICT COURT

10 NORTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 Defendant. 18 19 20 21 22 23 24 25 26 27 28
STIPULATION TO FILE AMENDED COMPLAINT

ACTUATE CORPORATION, a Delaware corporation, Plaintiff, v. JPMORGAN CHASE BANK, N.A., a Delaware corporation, as Acquirer of Certain Assets and Liabilities of WASHINGTON MUTUAL BANK, a Washington corporation,

Case No. C08-2918 SI,

STIPULATION AND [PROPOSED] ORDER FOR FILING AMENDED COMPLAINT

Complaint Filed: June 11, 2008 Trial Date: December 7, 2009

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WHEREAS, the Complaint for Breach of Contract and Copyright Infringement was filed in this action on June 11, 2008; WHEREAS, fact discovery closed on August 10, 2009, and trial is currently scheduled to begin on December 7, 2009; WHEREAS, Defendant asserts various affirmative defenses, alleging that the October 2004 contract between the parties should fail; WHEREAS, the purpose of the additional claim in the amended complaint is to make explicit on the record that Plaintiff seeks recovery under an equitable theory if Defendant's affirmative defenses proved successful (the parties reserve all of their respective arguments on these issues); WHEREAS, the parties therefore agree that the filing of the amended complaint will not require modifying any of the currently scheduled deadlines or trial date, and will not require reopening fact discovery; WHEREAS, the undersigned parties wish to avoid burdening the Court with unnecessary motion practice and have agreed that Plaintiff may file the amended complaint in the form attached hereto as Exhibit A, which contains an additional claim for quantum meruit/quantum valebant; IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, subject to approval of the Court, as follows: 1. Plaintiff shall be permitted to file the Amended Complaint for Breach of Contract, Copyright Infringement and Quantum Meruit/Quantum Valebant;

-2STIPULATION TO FILE AMENDED COMPLAINT

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2.

Defendant shall be permitted to respond within 20 calendar days of the entry of the order on this stipulation.

Dated: August 11, 2009 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 Dated: August 11, 2009

WILSON SONSINI GOODRICH & ROSATI Professional Corporation By: /s/ Charles T. Graves Charles T. Graves Wilson Sonsini Goodrich & Rosati One Market, Spear Tower, Suite 3300 San Francisco, CA 94105 Telephone: [phone] Facsimile: 415-947-2099 Attorneys for Plaintiff Actuate Corporation HOWREY LLP By: /s/ Benjamin K. Riley Benjamin K. Riley Howrey LLP 525 Market Street, Suite 3600 San Francisco, CA 94105 Telephone: [phone] Facsimile: 415-848-4999 Attorneys for Defendant JP Morgan Chase Bank, N.A., as Acquirer of Certain Assets and Liabilities of WASHINGTON MUTUAL BANK ORDER

PURSUANT TO STIPULATION, IT IS SO ORDERED. IT IS FURTHER ORDERED that the Clerk of Court shall file the amended complaint, attached hereto. IT IS FURTHER ORDERED that Defendant shall have 20 calendar days from the entry of this order to respond to the amended complaint.

Hon. Susan Illston United States District Judge -3STIPULATION TO FILE AMENDED COMPLAINT

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I, Charles T. Graves am the ECF User whose identification and password are being used to file this STIPULATION AND [PROPOSED] ORDER FOR FILING AMENDED COMPLAINT. In compliance with General Order 45.X.B, I hereby attest that Benjamin K. Riley has concurred in this filing. Dated: August 11, 2009 WILSON SONSINI GOODRICH & ROSATI Professional Corporation

By: /s/ Charles T. Graves Charles T. Graves Attorneys for Plaintiff Actuate Corporation

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