U2 Home Entertainment, Inc. v. Hanya Star Culture & Technology Co., Ltd. et al

Filing 39

ORDER GRANTING 38 Stipulation Continuing Case Management Conference, Case Management Conference Statement. Case Management Statement due by 7/15/2011. Case Management Conference set for 7/22/2011 01:30 PM in Courtroom 11, 19th Floor, San Francisco.. Signed by Judge Jeffrey S. White on 3/23/11. (jjoS, COURT STAFF) (Filed on 3/23/2011)

U2 Home Entertainment, Inc. v. Hanya Star Culture & Technology Co., Ltd. et al

Doc. 39

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RICHARD J. IDELL (SBN: 069033) ELIZABETH J. REST (SBN: 244756) IDELL & SEITEL LLP 465 California Street, Suite 300 San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] Emails: [e-mail]; [e-mail] Attorneys for Plaintiff U2 HOME ENTERTAINMENT, INC. TOD L. GAMLEN (SBN: 83458) KEITH L. WURSTER (SBN: 198918) BAKER & McKENZIE LLP 660 Hansen Way Palo Alto, CA 94304-1044 Telephone: [phone] Facsimile: [phone] Emails: [e-mail]; [e-mail] Attorneys for Defendant iTALK GLOBAL COMMUNICATIONS, INC. DARRYL M. WOO (SBN: 100513) LIWEN A. MAH (SBN: 239033) FENWICK & WEST LLP 555 California Street, 12th Floor San Francisco, California 94104 Telephone: [phone] Facsimile: [phone] Emails: [e-mail]; [e-mail] Attorneys for Defendant HANYA STAR CULTURE & TECHNOLOGY CO., LTD. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA NORTHERN DIVISION U2 HOME ENTERTAINMENT, INC., a California Corporation doing business as CENTURY HOME ENTERTAINMENT and TAI SENG ENTERTAINMENT, ) Case No.: CV 10-05615 JSW ) ) STIPULATION AND [PROPOSED] ORDER ) CONTINUING CASE MANAGEMENT

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Dockets.Justia.com

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) ) Plaintiff, ) ) vs. ) HANYA STAR CULTURE & TECHNOLOGY ) CO., LTD., a foreign corporation doing business ) ) in California as HANYA STAR COMPANY, ) INC. and CHARMING CHINA; ITALK ) GLOBAL COMMUNICATIONS, INC., a foreign corporation doing business in California ) ) as ITALKBB and ITALK-BB; and DOES 1 ) through 1,000, inclusive, ) ) Defendants.

CONFERENCE, CASE MANAGEMENT CONFERENCE STATEMENT DEADLINE AND INITIAL DISCLOSURE DEADLINE Complaint Filed: December 10, 2010 First Amended Complaint Filed: March 11, 2011 Honorable Judge Jeffrey S. White, Presiding (E-filing)

Pursuant to Rule 6(b) of the Federal Rules of Civil Procedure and Rule 6-1(b) of the Civil Local Rules of the United States District Court, Northern District of California, Plaintiff U2 HOME ENTERTAINMENT, INC., a California Corporation doing business as CENTURY HOME ENTERTAINMENT and TAI SENG ENTERTAINMENT ("U2" or "Plaintiff"), on the one hand, and Defendants HANYA STAR CULTURE & TECHNOLOGY CO., LTD., a foreign corporation, which Plaintiff contends is doing business in California as HANYA STAR COMPANY, INC. and CHARMING CHINA ("Hanya Star"), and ITALK GLOBAL COMMUNICATIONS, INC., which Plaintiff contends is a foreign corporation doing business in California as ITALKBB and ITALK-BB ("iTalk") (collectively, Hanya Star and iTalk may be referred to as "Defendants"), on the other hand, without waiver of any objection or defense, hereby agree and stipulate as set forth below. This Stipulation and Proposed Order are being submitted for the purpose of continuing the Case Management Conference ("CMC") in this case, which is currently scheduled for April 1, 2011, to May 13, 2011 (or to a date thereafter that is convenient to the Court), as well as other case management deadlines that are tied to the date of the CMC. As set forth in the Recitals below, the parties each believe that good cause exists for the continuation of such CMC in light of the present posture of this case, including a motion filed by Hanya Star under Fed. R. Civ. P. 12(b)(5) for insufficient service of process which is scheduled to be heard on April 22, 2011. //
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RECITALS WHEREAS, Plaintiff filed its Complaint on December 10, 2010 ("Complaint"); and WHEREAS, the Honorable Judge Jeffrey S. White entered an order on February 3, 2011 ("CMC Order") (Doc. No. 13), scheduling the initial Case Management Conference in this matter for April 1, 2011, at 1:30 p.m., in Courtroom 11, 19th Floor, Federal Building, 450 Golden Gate Avenue, San Francisco, California; and WHEREAS, the CMC Order requires that the parties file a joint case management statement no later than five (5) court days prior to the conference, or no later than March 25, 2011; and WHEREAS, on February 14, 2011, iTalk filed a Motion to Dismiss the Complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim ("iTalk's Feb. 14 Rule 12(b)(6) Motion") (Doc. Nos. 19-22); and WHEREAS, on February 18, 2011, Hanya Star filed a Motion to Dismiss the Complaint under Fed. R. Civ. P. 12(b)(5) for insufficient service and under Fed. R. Civ. P. 12(b)(6) for failure to state a claim (such motions are referred to as "Hanya Star's Feb. 18 Rule 12(b)(5)" and/or "Hanya Star's Feb. 18 Rule 12(b)(6) Motion" as the case may be) (Doc. Nos. 24-26); and WHEREAS, Hanya Star contends that other than the filing of Hanya Star's Feb. 18 Rule 12(b)(5) Motion and 12(b)(6) Motion, Hanya Star has not appeared in this action and waives no objection or defense relating to service and jurisdiction; and WHEREAS, on February 18 and 25, 2011, the Court issued two Orders setting the Briefing Schedule (Doc. Nos. 27 and 29), which scheduled the hearings on both of the Motions to Dismiss for April 22, 2011, at 9:00 a.m.; and WHEREAS, on March 11, 2011, in response to the Motions to Dismiss filed by Defendants, Plaintiff filed: (1) a First Amended Complaint ("FAC") (Doc. No. 33); (2) an Opposition to iTalk's Feb. 14 Rule 12(b)(6) Motion (Doc. No. 32) asking the Court to order such Motion moot in light of the filing of the FAC; (3) an Opposition to Hanya Star's Feb. 18 Rule 12(b)(5) Motion and Rule12(b)(6) Motion (Doc. No. 36) opposing Hanya Star's Feb. 18 Rule 12(b)(5) Motion asserting insufficient service of process, and asking the Court to order Hanya Star's Feb. 18 Rule 12(b)(6) Motion moot in light of the filing of the FAC; and (4) supporting declarations and proposed orders regarding the aforementioned
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(Doc. No. 36); and WHEREAS, both Defendants contend that the filing of the FAC does not properly address the issues raised in their respective 12(b)(6) Motions to Dismiss or state valid claims for which relief can be granted. By entering this Stipulation each Defendant is: (i) reserving all of its rights, claims and defenses; (ii) preserving all rights to challenge the FAC; (iii) preserving all rights relating to the sufficiency or propriety of the FAC; and is (iv) not waiving any argument that the FAC fails to state a claim or is otherwise improper or insufficient. Plaintiff contends that the FAC does properly address the issues raised by the Motions to Dismiss and further contends that the FAC does state valid claims for which relief can be granted; and Plaintiff and Defendants are reserving all of their rights, claims and defenses; and, WHEREAS, to address certain issues relating to the filing and effect of the FAC, the parties are entering into a separate stipulation that provides, among other things, that each Defendant will have up to and including April 8, 2011, to respond to the FAC, either by motion, answer or otherwise; and, one or more Defendants shall be filing a motion to dismiss the FAC on or before April 8, 2011; and, WHEREAS, Hanya Star believes that until the Court rules on Hanya Star's Feb. 18 Rule 12(b)(5) Motion regarding service, there is an outstanding question regarding whether Hanya Star is properly a party in the case; and WHEREAS, all parties believe that in light of the present posture of this case (including the circumstances referred to above), exchanging Initial Disclosures, filing a joint case management conference statement and having the Case Management Conference prior to the ruling on the Hanya Star's Feb. 18 Rule 12(b)(5) Motion is premature and at a minimum should follow the Court's ruling on the service issue; and, it would be reasonable for such conference to follow the ruling on the planned motions to dismiss the FAC; and, WHEREAS, Rule 6-1(b) of the Civil Local Rules of the United States District Court, Northern District of California, permits the parties to request a modification of fixed deadlines by stipulation in writing; and WHEREAS, in order to at least allow the Court time to rule on Hanya Star's Feb. 18 Rule 12(b)(5) Motion regarding service, the parties agree that good cause exists to continue the Case
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Management Conference to May 13, 2011, or a date thereafter convenient to the Court; and WHEREAS, Plaintiff and Defendants also agree that the last day to file a Rule 26(f) report and joint case management conference statement should be five (5) court days prior to the re-set Case Management Conference; and WHEREAS, Plaintiff and Defendants also agree that the last day to complete their Initial Disclosures pursuant to F.R.C.P. Rule 26 should be five (5) court days prior to the re-set Case Management Conference; STIPULATION NOW THEREFORE, Plaintiff and Defendants, by and through their respective undersigned counsel, hereby stipulate as follows: 1. Subject to the Court's calendar, the Case Management Conference in this matter shall be

continued to May 13, 2011, at 1:30 p.m., in Courtroom 11, 19th Floor, Federal Building, 450 Golden Gate Avenue, San Francisco, California, or to a date thereafter convenient to the Court; and 2. The last day to file a Rule 26(f) report and joint case management conference statement

should be five (5) court days prior to the re-set Case Management Conference; and 3. The last day to complete Initial Disclosures pursuant to F.R.C.P. Rule 26 should be five

(5) court days prior to the re-set Case Management Conference; SO STIPULATED. IDELL & SEITEL LLP Dated: March 22, 2011 By: /Richard J. Idell/ Richard J. Idell Attorneys for Plaintiff U2 HOME ENTERTAINMENT, INC. BAKER & McKENZIE LLP By: /Tod L. Gamlen/ Tod L. Gamlen Attorneys for Defendant iTALK GLOBAL COMMUNICATIONS, INC.

Dated: March 22, 2011

// //
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Dated: March 22, 2011 By:

FENWICK & WEST LLP /Liwen A. Mah/ Liwen A. Mah Attorneys for Defendant HANYA STAR CULTURE & TECHNOLOGY CO., LTD.

ATTESTATION OF CONCURRENCE I, Richard J. Idell, attest that I am one of the attorneys for Plaintiff U2 HOME ENTERTAINMENT, INC., a California Corporation doing business as CENTURY HOME ENTERTAINMENT and TAI SENG ENTERTAINMENT, and as the ECF user and filer of this document, I attest that, pursuant to General Order No. 45(X)(B), concurrence in the filing of this document has been obtained from Tod L. Gamlen and Darryl M. Woo, the above signatories.

Dated: March 22, 2011

By:

/Richard J. Idell/ Richard J. Idell

[PROPOSED] ORDER PURSUANT TO STIPULATION, IT IS HEREBY ORDERED that: 1. The Case Management Conference in this matter shall be continued to ___________, July 22

2011, at 1:30 p.m., in Courtroom 11, 19th Floor, Federal Building, 450 Golden Gate Avenue, San Francisco, California; and 2. The last day to file a Rule 26(f) report and joint case management conference statement

shall be five (5) court days prior to the Case Management Conference; and 3. The last day to complete Initial Disclosures pursuant to F.R.C.P. Rule 26 shall be five

(5) court days prior to the re-set Case Management Conference; PURSUANT TO STIPULATION, IT IS SO ORDERED. March 23, 2011 Dated: Hon. Jeffrey S. White Judge of the United States District Court Northern District of California

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