Ambroff et al v. American Medical Systems, Inc.

Filing 30

ORDER CONTINUING EARLY NEUTRAL EVALUATION re 29 Stipulation filed by American Medical Systems, Inc. Signed by Judge James Larson on 2/19/09. (jlsec, COURT STAFF) (Filed on 2/19/2009)

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Case 3:08-cv-04289-JL Document 29 Filed 02/17/2009 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 Kenney & KEN M. MARKOWITZ (SBN 104674) SAMANTHA D. HILTON (SBN 215585) KENNEY & MARKOWITZ L.L.P. 255 California Street, Suite 1300 San Francisco, CA 94111 Tel: (415) 397-3100 Fax: (415) 397-3170 Email: kmarkowitz@kennmark.com shilton@kennmark.com Attorneys for Defendant AMERICAN MEDICAL SYSTEMS, INC. DAN JOHNSON (Pro Hac Vice) AMERICAN MEDICAL SYSTEMS, INC. 10700 Bren Road West Minnetonka, MN 55343 Tel: (952) 933-4666 Fax: (952) 930-6157 Email: Dan.Johnson@AmericanMedicalSystems.com Attorneys for Defendant AMERICAN MEDICAL SYSTEMS, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO ECF PROGRAM ELLEN AMBROFF and TERRY AMBROFF, Plaintiffs, v. AMERICAN MEDICAL SYSTEMS, INC., and DOES ONE through TWENTY-FIVE, inclusive, Defendants. CASE NO. C08-04289 JL STIPULATION AND [PROPOSED] ORDER TO CONTINUE EARLY NEUTRAL EVALUATION_______ Civil L.R. 7-12 This Stipulation is entered into between Plaintiffs, Ellen Ambroff and Terry Ambroff, by and through their counsel of record, Hersh and Hersh, a professional corporation, and Defendant, American Medical Systems, Inc., by and through its counsel of record, Kenney & Markowitz, {30115.302053 0136921.DOC} 27 28 Markowitz L.L.P. -1STIPULATION AND [PROPOSED] ORDER TO CONTINUE EARLY NEUTRAL EVALUATION CASE NO: C08-04289 JL Case 3:08-cv-04289-JL Document 29 Filed 02/17/2009 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 Kenney & L.L.P. The parties stipulate as follows: 1. Prior to the Initial Case Management Conference on December 17, 2008, the parties agreed to Early Neutral Evaluation as their choice of Alternative Dispute Resolution pursuant to ADR L.R. 3-3 and Civil L.R. 16-2. 2. On December 29, 2008, the Court referred this action to ENE and assigned neutral, Jacqueline Scott Corley, on January 8, 2009. The Court ordered that the ENE be completed on or before March 17, 2009. 3. On January 14, 2009, counsel for AMS filed a Notice of Pendency of Other Action providing the Court with details of a related action entitled Ellen Ambroff, Terry Ambroff v. Robert E. Carter, M.D., et al., Case No. PC 20080322, that was filed on or about May 30, 2008 in the California Superior Court, El Dorado County. AMS believes that the actions filed in this Court and in the Superior Court concern the same subject matter, namely, the implantation of plaintiff Ellen Ambroff with the ApogeeTM mesh system in June 2006, and substantially all of the same parties pursuant to Rule 3-13 of the Civil Local Rules. AMS further believes that the defendants in both actions are disadvantaged by this procedural tactic and that separate actions waste judicial and other resources. Plaintiffs disagree on the grounds that plaintiffs believe that the state and federal actions do not involve the same parties nor the same causes of action. Therefore, if AMS is to join the state court action, it must file a motion in the state court action and, if granted, a motion to stay in this Court, which may take several months. 4. On January 29, 2009, Court-appointed neutral, Jacqueline Scott Corley, initiated a telephone conference with the parties to schedule an ENE. This issue of the related actions was discussed along with the possibility that the ENE would be continued if the parties did not resolve the disputed forum-related issue prior to the date scheduled. The current date set for ENE is March 4, 2009. 5. The parties stipulate and respectfully request that the Court vacate the current ADR completion deadline of March 17, 2009 and continue the ADR completion date by an additional 90 days to June 15, 2009. 27 28 Markowitz L.L.P. {30115.302053 0136921.DOC} -2STIPULATION AND [PROPOSED] ORDER TO CONTINUE EARLY NEUTRAL EVALUATION CASE NO: C08-04289 JL Case 3:08-cv-04289-JL Document 29 Filed 02/17/2009 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 Kenney & 6. The parties have discussed the forum related issue and possible ENE continuance with Court-appointed neutral, Jacqueline Scott Corley. Ms. Corley also believes that a continuance is in the best interest of the parties given the procedural posture of the action and consents to a continuance of the ENE. Respectfully submitted, DATED: February 17, 2009 KENNEY & MARKOWITZ L.L.P By:__________/s/_______________________ KEN M. MARKOWITZ SAMANTHA D. HILTON Attorneys for Defendant AMERICAN MEDICAL SYSTEMS INC. DATED: February 17, 2009 HERSH AND HERSH By:_________/s/________________________ AMY ESKIN Attorney for Plaintiff ELLEN AND TERRY AMBROFF [PROPOSED] ORDER Pursuant to the parties' stipulation, the Alternative Dispute Resolution completion deadline of March 17, 2009, is vacated. The parties are to complete Early Neutral Evaluation on or before June 15, 2009. IT IS SO ORDERED. 2/19/09 DATED: ______________ _____________________________________________ JAMES LARSON UNITED STATES MAGISTRATE JUDGE 27 28 {30115.302053 0136921.DOC} Markowitz L.L.P. -3STIPULATION AND [PROPOSED] ORDER TO CONTINUE EARLY NEUTRAL EVALUATION CASE NO: C08-04289 JL

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