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

Filing 40

ORDER GRANTING (AS MODIFIED) 37 Stipulation Regarding: (1) Filing of First Amended Compliant; and, (2) Extending Time for Defendants to Respond to First Amended ComplainT: Motion to Dismiss FAC Hearing (Placeholder) set for 6/3/2011 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White.. Signed by Judge Jeffrey S. White on 3/23/11. (jjoS, COURT STAFF) (Filed on 3/24/2011)

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

Doc. 40

Case3:10-cv-05615-JSW Document37

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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 REGARDING: (1) FILING OF

1 STIPULATION AND [PROPOSED] ORDER REGARDING: (1) FILING OF FIRST AMENDED COMPLAINT; AND, (2) EXTENDING TIME FOR DEFENDANTS TO RESPOND TO FIRST AMENDED COMPLAINT Case No.: CV 10-05615 JSW

Dockets.Justia.com

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) ) Plaintiff, ) ) vs. ) ) HANYA STAR CULTURE & TECHNOLOGY CO., LTD., a foreign corporation doing business in ) California, and doing business as HANYA STAR ) ) COMPANY, INC.; ITALK GLOBAL COMMUNICATIONS, INC., a foreign corporation ) doing business in California, and doing business as ) ) ITALKBB; and DOES 1 through 100, inclusive, ) ) Defendants. )

FIRST AMENDED COMPLAINT; AND, (2) EXTENDING TIME FOR DEFENDANTS TO RESPOND TO FIRST AMENDED COMPLAINT Complaint Filed: December 10, 2010 Honorable Judge Jeffrey S. White, Presiding (E-filing)

Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure and Rule 6-1(a) 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. ("Hanya Star") and ITALK GLOBAL COMMUNICATIONS, INC. ("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. RECITALS WHEREAS, Plaintiff filed its Complaint on December 10, 2010 ("Complaint"); 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) Motion" and/or "Hanya Star's Feb. 18 Rule 12(b)(6) Motion" as the case may be) (Doc. Nos. 24-26); and WHEREAS, on February 18 and 25, 2011, the Court issued two Orders setting the Briefing
2 STIPULATION AND [PROPOSED] ORDER REGARDING: (1) FILING OF FIRST AMENDED COMPLAINT; AND, (2) EXTENDING TIME FOR DEFENDANTS TO RESPOND TO FIRST AMENDED COMPLAINT Case No.: CV 10-05615 JSW

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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) and 12(b)(6) Motion (Doc. No. 36) opposing that part of Hanya Star's Motion to Dismiss asserting insufficient service of process, and asking the Court to order the remainder of such Motion moot in light of the filing of the FAC; and (4) supporting declarations and proposed orders regarding the aforementioned (Doc. No. 36); 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 and stipulations, Hanya Star has not appeared in this action and waives no objection or defense relating to service and jurisdiction; and WHEREAS, the parties dispute whether the FAC was filed timely and/or whether the FAC states valid claims for which relief can be granted and/or whether the FAC addresses the issues raised in the Defendants' respective 12(b)(6) Motions to Dismiss referred to above; and WHEREAS, the parties recognize that, absent a stipulation of the type set forth below, resolving the issue of the timeliness of the filing of the FAC would involve time and expense for the parties and the Court. and WHEREAS, if the FAC were deemed to be timely filed on March 11, 2011, the response of each Defendant would be due on March 25, 2011, absent a stipulation extending such time; and, WHEREAS the parties recognize that by entering into this Stipulation: (a) 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; and, (b) that 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 is reserving all of its rights, claims and defenses; and WHEREAS, in order to allow the parties to resolve the issue of the timeliness of the filing of the
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FAC and to allow Defendants sufficient time to evaluate the FAC and respond thereto, the parties are entering into the following Stipulation. STIPULATION NOW THEREFORE, Plaintiff and Defendants, by and through their respective undersigned counsel, hereby agree and stipulate as follows: 1. The First Amended Complaint filed on March 11, 2011, that is, the FAC referred to

above, will be deemed to be the operative complaint in this action, and Defendants consent to the filing of the FAC and stipulate that the FAC can be deemed timely filed, Defendants reserving all rights as set forth herein; and 2. Each Defendant shall have up to and including April 8, 2011, to respond to the FAC,

whether by motion, answer or otherwise; and 3. If the response of either Defendant to the FAC is a motion, whether a Motion to Dismiss

the FAC (or any portion thereof) or otherwise, such Defendant(s) shall notice the hearing on any such Motion for May 13, 2011, or as soon thereafter as the Court's schedule permits; and 4. iTalk shall withdraw Talk's Feb. 14 Rule 12(b)(6) Motion to Dismiss the original

Complaint, without prejudice to, and reserving, (i) any and all of its rights, claims and defenses; (ii) all rights to challenge the FAC, (iii) all rights relating to the sufficiency of the FAC, and is (iv) any and all arguments that the FAC fails to state a claim or is otherwise improper or insufficient; and, 5. Hanya Star shall withdraw Hanya Star's Feb. 18 Rule 12(b)(6) Motion to Dismiss the

original Complaint, without prejudice to, and reserving, (i) any and all of its rights, claims and defenses; (ii) all rights to challenge the FAC, (iii) all rights relating to the sufficiency of the FAC, and is (iv) any and all arguments that the FAC fails to state a claim or is otherwise improper or insufficient; and, // // // // // //
4 STIPULATION AND [PROPOSED] ORDER REGARDING: (1) FILING OF FIRST AMENDED COMPLAINT; AND, (2) EXTENDING TIME FOR DEFENDANTS TO RESPOND TO FIRST AMENDED COMPLAINT Case No.: CV 10-05615 JSW

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6.

Hanya Star's Feb. 18 Rule 12(b)(5) Motion to Dismiss for insufficient service remains

pending and all currently scheduled dates relating to such motion, including the March 25, 2011, date for the filing of Hanya Star's reply and the scheduled hearing on April 22, 2011, at 9:00 a.m., shall remain in effect. 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. FENWICK & WEST LLP By: /Liwen A. Mah/ Liwen A. Mah Attorneys for Defendant HANYA STAR CULTURE & TECHNOLOGY CO., LTD.

Dated: March 22, 2011

Dated: March 22, 2011

ATTESTATION OF CONCURRENCE I, Richard J. Idell, attest that I am one of the attorneys for Plaintiff U2 Home Entertainment, Inc., 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 Liwen Mah, the above signatories.

Dated: March 22, 2011

By:

/Richard J. Idell/ Richard J. Idell

5 STIPULATION AND [PROPOSED] ORDER REGARDING: (1) FILING OF FIRST AMENDED COMPLAINT; AND, (2) EXTENDING TIME FOR DEFENDANTS TO RESPOND TO FIRST AMENDED COMPLAINT Case No.: CV 10-05615 JSW

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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 27 28 Dated: March 23, 2011

[PROPOSED] ORDER THE ABOVE STIPULATION IS ADOPTED BY THE COURT AND PURSUANT TO SUCH STIPULATION, IT IS HEREBY ORDERED that: 1. The First Amended Complaint ("FAC") filed on March 11, 2011, supersedes the

Complaint, is the operative pleading in this matter, and will be deemed timely filed; and 2. Defendants shall have up to and including April 8, 2011, to file a response to the FAC,

whether by motion, answer or otherwise; and 3. If the response of either Defendant to the FAC is a motion, whether a Motion to Dismiss

the FAC (or any portion thereof) or otherwise, such Defendant shall notice the hearing on any such June 3, 2011 at 9:00 a.m. Motion for May 13, 2011, or as soon thereafter as the Court's schedule permits; and 4. The motion to dismiss for insufficient service filed by Hanya Star on February 18, 2011,

pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure remains pending and all currently scheduled dates relating to such motion, including the March 25, 2011, date for the filing of Hanya Star's reply and the scheduled hearing on April 22, 2011, at 9:00 a.m., shall remain in effect. IT IS SO ORDERED.

Hon. Jeffrey S. White Judge of the United States District Court Northern District of California

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