Just Film, Inc. et al v. Merchant Services, Inc et al

Filing 25

ORDER TO EXTEND BRIEFING SCHEDULE AND ORDER REGARDING SERVICE re 11 Stipulation filed by Eric Madura, National Payment Processing, Jason Moore, Universal Card, Inc., Merchant Services, Inc. Signed by Judge James Larson on 5/13/10. (jlsec, COURT STAFF) (Filed on 5/13/2010)

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JONES DAY Thomas R. Malcolm (State Bar No. 39248) [e-mail] Cary D. Sullivan (State Bar No. 228527) [e-mail] 3161 Michelson Drive, Suite 800 Irvine, California 92612 Telephone: [phone] Facsimile: [phone] Brian Hershman (State Bar No. 168175) [e-mail] 555 South Flower Street Fiftieth Floor Los Angeles, California 90071-2300 Telephone: [phone] Facsimile: [phone] Attorneys for defendants Merchant Services, Inc., Universal Card, Inc., National Payment Processing, Inc., Jason Moore and Eric Madura (Additional counsel listed on signature page)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION JUST FILM, INC.; RAINBOW BUSINESS SERVICES, D/B/A PRECISION TUNE AUTO CARE; VOLKER VON GLASENAPP; and JERRY SU on behalf of themselves, the general public and those similarly situated, Plaintiffs, v. MERCHANT SERVICES, INC.; UNIVERSAL CARD, INC.; NATIONAL PAYMENT PROCESSING; UNIVERSAL MERCHANT SERVICES CORPORATION; ATLAS PAYMENT PROCESSING; UNITED BANK CARD OF AMERICAN, INC.; SPC, INC. d/b/a FIRST NATIONAL MERCHANTS Case No. CV 10-01993 JL STIPULATION PURSUANT TO CIVIL LOCAL RULE 6-1(a) TO EXTEND DEADLINE TO ANSWER OR OTHERWISE RESPOND TO COMPLAINT and STIPULATION PURSUANT TO CIVIL LOCAL RULE 6-2(a) TO EXTEND ASSOCIATED BRIEFING SCHEDULE AND [PROPOSED] ORDER THEREON and STIPULATION REGARDING ELECTRONIC MAIL SERVICE [Declaration of Cary D. Sullivan filed concurrently herewith]

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SOLUTIONS; MBF LEASING LLC; MBF MERCHANT CAPITAL, LLC; NORTHERN FUNDING, LLC; NORTHERN LEASING SYSTEMS, INC.; CONGRESS FINANCIAL CORPORATION; GOLDEN EAGLE LEASING, LLC; LEASE SOURCE, INC.; LEASE FINANCE GROUP, LLC; TRANSFIRST HOLDINGS, INC.; TRANSFIRST FINANCIAL INSTITUTIONS SERVICES; TRANSFIRST INDEPENDENT SALES SERVICES; FIRST NATIONAL BANK OF OMAHA; COLUMBUS BANK AND TRUST CO.; MERRICK BANK; THIRD FIFTH BANK; RBL CAPITAL GROUP, LLC; WILLIAM HEALY; ROBERT LATOUSEK; JAY COHEN; RICH HAHN; SARA KRIEGER; JASON MOORE; LINA KRAVIC; BRIAN FITZGERALD; SAM BUONO; PETER DEPALMA; FIONA WALSHE; and ERIC MADURA and DOES 1 through 75, Defendants.

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WHEREAS, on March 26, 2010, plaintiffs Just Film, Inc., Rainbow Business Services d/b/a Precision Tune Auto Care, Volker von Glasenapp and Jerry Su filed a class action complaint against 35 defendants in the Superior Court of the County of San Francisco, Case No. CGC-10-498225 (the "action"); WHEREAS, a number of the defendants in the action have been served, including, Merchant Services, Inc., Universal Card, Inc., National Payment Processing, Inc., Atlas Payment Processing, SPC, Inc. d/b/a/ First National Merchants Solutions, MBF Leasing, LLC, MBF Merchant Capital, LLC, Northern Funding, LLC, Northern Leasing Systems, Inc., Golden Eagle Leasing, LLC, Lease Finance Group, LLC, United Bank Card, Inc., Congress Financial Corporation, TransFirst Holdings, Inc., TransFirst, LLC, TransFirst Third Party Sales, LLC, First National Bank of Omaha, Columbus Bank and Trust Company, Merrick Bank, Fifth Third Bank, RBL Capital Group, LLC, William Healy, Jay Cohen, Rich Hahn, Sara Krieger, Jason Moore, Lina Kravic, Sam Buono, Fiona Walshe and Eric Madura (collectively, the "Served Defendants"); WHEREAS, the dates of service on the Served Defendants range from early to late April

WHEREAS, some of the defendants in the action may remain unserved; WHEREAS, on May 7, 2010, the Served Defendants removed the action to this Court, pursuant to Title 28, Sections 1441 and 1453 of the United States Code; WHEREAS, pursuant to Rule 81(c)(2) of the Federal Rules of Civil Procedure, the range in dates of service on the Served Defendants may create a range in deadlines for the Served Defendants to answer or otherwise respond to the complaint herein, and a similar range in associated briefing schedules; WHEREAS, the parties believe a coordinated and extended deadline for the Served Defendants to answer or otherwise respond to the complaint will conserve resources and promote judicial economy; WHEREAS, given the large number of parties and the potential complexity of the issues presented, the parties further believe that a coordinated and extended briefing schedule with

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respect to any responsive motions filed by the Served Defendants is warranted and also will conserve resources and promote judicial economy; WHEREAS, pursuant to Civil Local Rule 6-1(a), the parties believe a stipulation may be sufficient, without Court order, to coordinate and extend the deadline for the Served Defendants to answer or otherwise respond to the complaint, but, pursuant to Civil Local Rule 6-2(a), a Court order may be necessary to extend the associated briefing schedule; WHEREAS, the parties wish to delay any Rule 26(f) conference until after the initial hearing on any motions in response to the complaint, except for matters on which limited discovery may be appropriate with respect to such motions, such as motions to dismiss for lack of personal jurisdiction; and WHEREAS, to save paper, fuel and expenses, and to reduce environmental harm, the parties further believe it appropriate to exchange all correspondence, discovery and pleadings in the action via electronic mail ("email"). NOW, THEREFORE, IT IS HEREBY STIPULATED, by and between the undersigned parties, through their respective counsel of record, pursuant to Civil Local Rules 61(a) and 6-2(a) and Rules 6 and 26 of the Federal Rules of Civil Procedure, as follows: 1. If any Served Defendants intend to respond to the complaint with motions rather

than answers, such Served Defendants shall meet and confer with Plaintiffs regarding the bases for such anticipated motions no later than May 21, 2010, and, to the extent such motions concern matters (such as lack of personal jurisdiction) for which limited discovery may be sought prior to the hearing on the motions, to meet and confer under Rule 26(f) as to the scope and timing of such limited discovery; 2. Plaintiffs shall inform Served Defendants no later than May 28, 2010 whether

Plaintiffs intend to re-plead or otherwise preemptively respond to such anticipated motions; 3. Served Defendants, and any other defendants served on or before May 4, 2010,

shall answer or otherwise respond to the complaint no later than June 4, 2010, and shall set any motions filed in response to the complaint for hearing on July 30, 2010 or the next available Court day on which the assigned judge is hearing civil motions; -4STIPULATIONS TO EXTEND TIME, ESTABLISH BRIEFING SCHEDULE AND REGARDING ELECTRONIC MAIL SERVICE

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4.

Plaintiffs shall oppose any such motions filed in response to the complaint no later

than July 2, 2010; 5. 6. Served Defendants shall reply to any such oppositions no later than July 16, 2010; Unless otherwise ordered by the Court, no Rule 26(f) conference shall be held

prior to the initial hearing on any motions filed in response to the complaint, except for any conference focusing on the limited discovery issues set forth in paragraph 1 hereof; 7. On or before August 15, 2010, or within seven days of the Court's ruling on any

motions filed in response to the complaint, whichever is later, all defendants as to whom the complaint has not been dismissed with prejudice shall participate in a joint telephonic meet and confer session with Plaintiffs regarding the items set forth in Rule 26(f) of the Federal Rules of Civil Procedure; 8. The parties need not separately serve any pleading or document that is filed

through the Court's Electronic Case Filing (ECF) system, rather, service of such pleading or document will be deemed complete on the day of filing by way of the ECF system's automatic email notification. The parties are excused from any duty under section IX(C)(2) of General Order 45 to serve paper copies of any filing on any other party; 9. With respect to all pleadings, discovery requests and responses and

correspondence not filed through the ECF system (including documents filed under seal in paper format), the following provisions shall apply: a. The parties shall serve, and accept service, of all pleadings, discovery

requests and responses and correspondence via email. Emails shall have a subject line that includes the phrase "Just Film v Merchant Services" and the subject of the email (example: Just Film v Merchant Services ­ Plaintiff's Initial Disclosures); b. Items sent by email prior to 6:00 p.m. shall be treated as though personally

served on that day; items sent by email after 6:00 p.m. or on a Saturday, Sunday or legal holiday shall be treated as though personally served as of the next day thereafter on which the Court is open (for example, items emailed on a Saturday will be seemed personally served as of the next

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Monday, assuming that Monday is not a legal holiday). The parties waive the provisions of Rule 6(d) of the Federal Rules of Civil Procedure; c. Signed versions of pleadings, discovery requests and responses and

correspondence shall be served in .pdf format. The text of all discovery requests and responses shall additionally be served in .doc format; d. blocks herein; and e. Any additional counsel who subsequently file an appearance in this matter The parties shall be served at the email addresses provided in the signature

shall provide the undersigned counsel with such additional counsel's email address. Following such notice, additional counsel shall also be served by email pursuant to paragraph 9 hereof. ///

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May 10, 2010

JONES DAY

By: /s/ Cary D. Sullivan Cary D. Sullivan Attorneys for defendants Merchant Services, Inc., Universal Card, Inc., National Payment Processing, Inc., Jason Moore and Eric Madura May 10, 2010 GUTRIDE SAFIER LLP Adam J. Gutride (State Bar No. 181446) [e-mail] Seth Safier (State Bar No. 197427) [e-mail] 835 Douglass Street San Francisco, California 94114 Telephone: [phone] Facsimile: [phone]

By: /s/ Adam J. Gutride Adam J. Gutride Attorneys for plaintiffs Just Film, Inc., Rainbow Business Services d/b/a Precision Tune Auto Care, Volker von Glasenapp and Jerry Su May 10, 2010 AKIN GUMP STRAUSS HAUER & FELD LLP Reginald Steer (State Bar No. 056324) [e-mail] Maria Ellinikos (State Bar No. 235528) [e-mail] 580 California Street, 15th Floor San Francisco, California 94104-1036 Telephone: [phone] Facsimile: [phone]

By: /s/ Maria Ellinikos Maria Ellinikos Attorneys for defendants TransFirst Holdings, Inc., TransFirst, LLC and TransFirst Third Party Sales, LLC

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May 10, 2010

SIMMONDS & NARITA Tomio B. Narita (State Bar No. 156576) [e-mail] 44 Montgomery Street, Suite 3010 San Francisco, California 94104 Telephone: [phone] Facsimile: [phone] GETTMAN & MILLS LLP Michael J. Mills (State Bar No. 202044) [e-mail] 10250 Regency Circle, Suite 200 Omaha, NE 68114 Telephone: [phone] Facsimile: [phone]

By: /s/ Tomio B. Narita Tomio B. Narita Attorneys for defendants First National Bank of Omaha and SPC Inc. d/b/a First National Merchant Solutions May 10, 2010 MORRISON & FOERSTER LLP James R. McGuire (State Bar No. 189275) [e-mail] 425 Market Street San Francisco, CA 94105-2482 Telephone: [phone] Facsimile: [phone]

By: /s/ James R. McGuire James R. McGuire Attorneys for defendant Columbus Bank and Trust Company

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May 10, 2010

BAKER & HOSTETLER LLP Hayes F. Michel (State Bar No. 141841) [e-mail] 12100 Wilshire Boulevard, 15th Floor Los Angeles, CA 90025-7120 Telephone: [phone] Facsimile: [phone]

By: /s/ Hayes F. Michel Hayes F. Michel Attorneys for defendant Fifth Third Bank May 10, 2010 STROOCK & STROOCK & LAVAN LLP Scott M. Pearson (State Bar No. 173880) [e-mail] [e-mail] Stephen J. Newman (State Bar No. 181570) [e-mail] [e-mail] 2029 Century Park East, 16th Floor Los Angeles, California 90067 Telephone: [phone] Facsimile: [phone]

By: /s/ Scott M. Pearson Scott M. Pearson Attorneys for defendant Merrick Bank

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May 10, 2010

MITCHELL SILBERBERG & KNUPP LLP Kevin Gaut (State Bar No. 117352) [e-mail] Adam Levin (State Bar No. 156773) [e-mail] 11377 W. Olympic Boulevard Los Angeles, CA 90064 Telephone: [phone] Facsimile: [phone] By: /s/ Kevin Gaut Kevin Gaut Attorneys for defendants MBF Leasing, LLC, Northern Funding, LLC, Northern Leasing Systems, Inc., Golden Eagle Leasing, LLC, Lease Finance Group, LLC, RBL Capital Group, LLC, Jay Cohen, Rich Hahn, Sara Krieger, Lina Kravic and Sam Buono

May 10, 2010

SCHEIN & CAI LLP James Cai (State Bar No. 200189) [e-mail] 111 West St. John Street, Suite 1250 San Jose, California 95113 Telephone: [phone] Facsimile: [phone] By: /s/ James Cai James Cai Attorneys for defendants Atlas Payment Processing and Fiona Walshe

May 10, 2010

CALLAHAN THOMPSON SHERMAN & CAUDILL LLP Lee A. Sherman (State Bar No. 172198) [e-mail] Joan E. Trimble (State Bar No. 205038) [e-mail] 2601 Main Street, Suite 800 Irvine, CA 92614 Telephone: [phone] Facsimile: [phone] By: /s/ Joan E. Trimble Joan E. Trimble Attorneys for defendants MBF Merchant Capital, LLC and William Healy

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May 10, 2010

Robert Elliott, Esq. (State Bar No. 114829) [e-mail] 22 Ocean Avenue San Francisco, California 94112 Telephone: [phone] Facsimile: [phone] By: /s/ Robert Elliott Robert Elliott

May 10, 2010

Attorney for defendant United Bank Card, Inc. Thomas O. Jacob (State Bar No. 125665) [e-mail] Office of General Counsel Wells Fargo & Co. MAC A0194-266 45 Fremont Street, 26th Floor San Francisco, California 94105 Telephone: [phone] Facsimile: [phone] By: /s/ Thomas O. Jacob Thomas O. Jacob Attorney for defendant Congress Financial Corporation

Pursuant to Civil Local Rule 6-2(a), and GOOD CAUSE APPEARING THEREFOR, the stipulated briefing schedule set forth in paragraphs 3 through 5 hereof is hereby adopted. IT IS SO ORDERED. DATED: May 13, 2010 THE HONORABLE JAMES LARSON UNITED STATES MAGISTRATE JUDGE

I, Cary D. Sullivan, am the ECF user whose ID and password are being used to file this document. In compliance with section X(B) of General Order 45, I hereby attest that Adam J. Gutride, Maria Ellinikos, Tomio B. Narita, James R. McGuire, Hayes F. Michel, Scott M. Pearson, Kevin Gaut, James Cai, Joan E. Trimble, Robert Elliott and Thomas O. Jacob concurred in this filing. /s/ Cary D. Sullivan
IRI-6567v3

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