Valentine et al v. Nebuad, Inc. et al

Filing 187

STIPULATION AND ORDER continuing the motion hearing and case management conference to 3/1/2010 at 10:00 AM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 12/11/09. (rbe, COURT STAFF) (Filed on 12/11/2009)

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SCOTT KAMBER (pro hac vice) [e-mail] DAVID A. STAMPLEY [e-mail] (pro hac vice) KAMBEREDELSON, LLC 11 Broadway, 22nd Floor New York, New York 10004 Telephone: [phone] Facsimile: [phone] JOSEPH H. MALLEY (pro hac vice) LAW OFFICE OF JOSEPH H. MALLEY, P.C. 1045 North Zang Boulevard Dallas, Texas 75208 Telephone: [phone] Facsimile: [phone] DAVID C. PARISI (SBN 162248) SUZANNE HAVENS BECKMAN (SBN 188814) [e-mail] [e-mail] PARISI & HAVENS LLP 15233 Valleyheart Drive Sherman Oaks, California 91403 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs. Additional counsel listed on signature pages

ROBERT A. WEIKERT (State Bar No. 121146) [e-mail] TALLEY E. MCINTYRE (State Bar No. 203131) [e-mail] NIXON PEABODY LLP One Embarcadero Center, 18th Floor San Francisco, California 94111-3600 Telephone: [phone] Fax: [phone] JASON C. KRAVITZ (pro hac vice) [e-mail] NIXON PEABODY LLP 100 Summer Street Boston, MA 02110-2131 Telephone: [phone] Fax: [phone]

Attorneys for Defendant, NEBUAD, INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DAN VALENTINE, et al., Plaintiffs, vs. NEBUAD, INC., et al., Defendants. No. C08-cv-05113 (TEH) STIPULATION AND [PROPOSED] ORDER REGARDING HEARING DATE FOR DEFENDANT NEBUAD, INC.'S MOTION TO DISMISS Hon. Thelton E. Henderson. Complaint Filed: November 10, 2008 Trial Date: None Set

STIPULATION AND [PROPOSED] ORDER REGARDING HEARING DATE FOR DEFENDANT NEBUAD'S MOTION TO DISMISS

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Pursuant to Local Rule 6-1, Plaintiffs and Defendant NebuAd, Inc. ("NebuAd") hereby stipulate and agree as follows: 1. The hearing for NebuAd's Motion to Dismiss (DKT. 4), currently on calendar for

December 14, 2009 (DKT. 184), shall be continued to March 1, 2010, which is the same date as the next Case Management Conference. (See DKT. 180). 2. Plaintiffs filed their complaint on November 10, 2008. On December 22, 2008,

NebuAd filed its motion to dismiss and re-noticed its motion on January 30, 2009. (DKT. 4). On January 30, 2009, Defendants Bresnan Communications, CenturyTel, Embarq, Knology, WOW!, and Cable One (collectively, "ISP Defendants") also filed motions to dismiss and noticed them for March 9, 2009. (DKTs. 40, 44, 51, 52). 3. On February 13, 2009, plaintiffs filed their motion for jurisdictional discovery

(DKT. 64), which was noticed for hearing on March 23, 2009. Plaintiffs filed their response to NebuAd's motion to dismiss on February 17, 2009. (DKT. 65.) 4. The Court then stayed the defendants' motions (DKT. 70), and on February 20,

2009, referred the plaintiffs' motion for jurisdictional discovery to Magistrate Judge Edward Chen. (DKT. 71). Judge Chen rescheduled the hearing on plaintiffs' motion for jurisdictional discovery to March 25, 2009. (DKT. 72). 5. On February 20, 2009, plaintiffs and NebuAd filed a stipulation and proposed

order regarding the hearing date for NebuAd's motion to dismiss, proposing that the Court reschedule the hearing on NebuAd's motion to dismiss to the same time that the ISP defendants' motion to dismiss would be heard. (DKT. 73). By Order dated February 24, 2009, the Court granted the parties' request and placed NebuAd's motion to dismiss on the same schedule as those of the ISP defendants. (DKT. 75). The purpose of the request was to allow for Magistrate Judge Chen's resolution of pending jurisdictional discovery issues (see DKTs. 64, 70) and to coordinate the instant motion with the ISP defendants' motions to dismiss, given the commonality of certain issues raised. 6. By Order dated March 26, 2009 (DKT. 90), Judge Chen ruled that plaintiffs could

take jurisdictional discovery of NebuAd informally, and that such discovery was to be completed
STIPULATION AND [PROPOSED] ORDER REGARDING HEARING DATE FOR DEFENDANT NEBUAD'S MOTION TO DISMISS -2NO. C08-CV-05113 (TEH)

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within thirty (30) days of the Order. (DKT. 90, ¶ 1). Judge Chen also directed plaintiffs to file their oppositions to the motions to dismiss within forty-five (45) days of the Order and directed the ISP defendants to file their replies 14 days thereafter. (DKT. 90 ¶ 4). 7. Plaintiffs filed their consolidated opposition to the ISP defendants' motions to

dismiss on May 8, 2009. (DKTs. 110, 111). Accordingly, NebuAd's reply in support of its motion to dismiss was due May 22, 2009, the same date as the replies of the ISP defendants. 8. On May 18, 2009, NebuAd's former counsel filed a motion to withdraw as counsel

for defendant, NebuAd, Inc., explaining that NebuAd had executed an assignment for the benefit of creditors and had no officers or employees with whom counsel could interact in defense of this litigation. (DKT. 121). On the same date, NebuAd's former counsel filed a motion to stay the litigation pending resolution of the motion to withdraw. (DKT. 122). 9. On May 21, 2009, the parties stipulated that the time for the ISP defendants to file

their replies in support of the motions to dismiss was extended to May 28, 2009, making NebuAd's reply in support of its motion to dismiss also due on May 28, 2009. (DKT. 124). 10. On May 28, 2009, NebuAd moved for an extension of time to file its reply (DKT.

131). On May 29, 2009, the Court granted NebuAd's motion for an extension of time and ordered that the time for NebuAd to file a reply brief was enlarged until after the Court resolved NebuAd's former counsel's pending motion to withdraw and motion to stay. (DKT. 135). 11. On October 6, 2009, the Court granted NebuAd counsels' motion to withdraw and

denied its motion to stay. (DKT. 167). 12. On October 9, 2009, NebuAd's current counsel appeared in the case. (DKTs. 169,

170). The parties appeared before this Court on November 16, 2009 for a Case Management Conference. The Court set the next Case Management Conference for March 1, 2010. (DKT. 180). The Court set the date for NebuAd's reply in support of its motion to dismiss for November 30, 2009. 13. On November 30, 2009, NebuAd filed its reply in the instant motion (DKT. 183),

and re-noticed the motion for hearing on December 14, 2009. (DKT. 184.)

STIPULATION AND [PROPOSED] ORDER REGARDING HEARING DATE FOR DEFENDANT NEBUAD'S MOTION TO DISMISS

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14.

Plaintiffs' principal counsel are unavailable on December 14, 2009 owing to prior

personal commitments and a death in the family that requires attendance at a funeral in Chicago on Monday, December 14. 15. In addition, plaintiffs represent that they intend to file an amended complaint in

this matter by the middle of next week, prior to a third-party deposition at which the parties expect to meet and confer in person and discuss the effect of the amended complaint on progress in this matter. 16. In light of the imminent filing of the amended complaint, the unlikelihood that a

hearing on defendant's motion to dismiss under the first complaint would be fully dispositive in this matter, and the importance of conserving the resources currently available to NebuAd for its defense in this matter, the parties respectfully request the Court's endorsement of the stipulation herein. Respectfully submitted, KamberEdelson, LLC

Dated: December 10, 2009

By:

/s David A. Stampley DAVID A. STAMPLEY Attorneys for Plaintiffs

Nixon Peabody LLP

Dated: December 10, 2009

By:

/s Talley E. McIntyre TALLEY E. MCINTYRE Attorneys for Defendant NebuAd, Inc.

STIPULATION AND [PROPOSED] ORDER REGARDING HEARING DATE FOR DEFENDANT NEBUAD'S MOTION TO DISMISS

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ALAN HIMMELFARB (SBN 90480) KAMBEREDELSON, LLC 2757 Leonis Boulevard Los Angeles, California 90058 Telephone: [phone] Facsimile: [phone] Attorney for Plaintiffs BRIAN J. PANISH (SBN 116060, N.D. Cal. adm. pending) [e-mail] RAHUL RAVIPUDI (SBN 204519, N.D. Cal. adm. pending) [e-mail] PANISH, SHEA & BOYLE, LLP 11111 Santa Monica Boulevard, Suite 700 Los Angeles, California 90025 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff Dan Valentine

PURSUANT TO STIPULATION, IT IS SO ORDERED. 12/11/09 Dated: ______________

UNIT ED

Hon. Thelton E. Henderson United States District Judge

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STIPULATION AND [PROPOSED] ORDER REGARDING HEARING DATE FOR DEFENDANT NEBUAD'S MOTION TO DISMISS

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