Board of Trustees of City of Hialeah Employees' Retirement System v. Mendes et al

Filing 60

ORDER REGARDING MOTION FOR ADMINISTRATIVE RELIEF FROM CASE MANAGEMENT ORDER by Hon. William Alsup granting in part and denying in part 53 Motion relief from cmo.(whalc2, COURT STAFF) (Filed on 4/12/2012)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 In re Diamond Foods, Inc., Derivative Litigation 12 No. C 11-05692 WHA / 11 For the Northern District of California United States District Court 10 ORDER REGARDING MOTION FOR ADMINISTRATIVE RELIEF FROM CASE MANAGEMENT ORDER This Document Relates to: All actions 13 / 14 15 In this derivative action, defendants John Gilbert and Robert Lea have filed a motion for 16 administrative relief from the case management order or, in the alternative, an extension of time. 17 Plaintiffs have opposed. Defendant Deloitte & Touche has filed an objection to the opposition to 18 the motion. 19 On February 16, 2012, a case management order issued instructing plaintiffs to file a 20 consolidated complaint by March 1. Defendants were instructed to respond to the consolidated 21 complaint within 45 days of receiving service and to file one motion to dismiss noticed on the 22 35-day track, with the possibility that defendants would be permitted to file multiple motions to 23 dismiss if necessary (Dkt. No. 39 at 3). Plaintiffs filed a consolidated complaint on March 1, and 24 added three new defendants. 25 Defendants Gilbert and Lea request permission to sequence the motion to dismiss in two 26 phases. In the first phase, they propose that defendant Diamond Foods, Inc, the nominal 27 defendant, be permitted to file on April 16, 2012, a single motion to dismiss for failure to make 28 demand and lack of subject-matter jurisdiction, covering all individual defendants. If that motion is denied, then the second phase will begin, wherein defendants Gilbert and Lea propose 1 that the individual defendants, of which there are eleven, be permitted to file separate motions to 2 dismiss on other grounds, which they refer to as “merits motions.” In the alternative, they 3 request that “each defense counsel for the individual defendants,” of which there are currently 5 4 such counsel, be permitted to file a separate motion to dismiss not to exceed fifteen pages and 5 that the deadline to file said motions be extended to April 30, 2012. Defendants Gilbert and Lea 6 have represented that “all defense counsel . . . agree that merits motions should be briefed only 7 after the court resolves a demand motion, or in the alternative, each defense counsel should be 8 permitted to file a separate motion to dismiss” (Dkt. No. 53 at 2–3). Defendants Gilbert and Lea 9 have not indicated the position of defendants Dennis Mussel and the Estate of Joseph P. Silveira 11 For the Northern District of California United States District Court 10 who do not have counsel. Plaintiffs oppose. They contend that there is no basis for a two stage process because 12 they have sufficiently alleged demand futility and subject-matter jurisdiction and that the two- 13 stage process would be inefficient and result in excessive briefing. Plaintiffs also oppose 14 defendants’ alternative request to permit each defense counsel to file a separate motion to 15 dismiss and to extend the deadline for said motions on the grounds that this would permit the 16 filing of too many motions. 17 Defendant Deloitte & Touche, LLP objects to plaintiffs’ opposition to the motion on the 18 grounds that defendant Deloitte was not served with the complaint until March 20 and is 19 therefore not required to respond to the amended complaint until May 4, 2012, 45 days after the 20 date that Deloitte was served. 21 Time to oppose the instant motion has expired. Having considered all submissions, the 22 parties are ordered to proceed as follows: (1) The individual defendants and Diamond Foods, 23 Inc., the nominal defendant, shall file one motion to dismiss for failure to make a demand and for 24 lack of subject-matter jurisdiction. This will be due April 16. (2) Defendant Deloitte shall file 25 its motion to dismiss by May 4, 2012. Both motions shall be noticed on the 35-day track. 26 27 28 2 1 A further briefing schedule will be set upon resolution of these motions. 2 3 IT IS SO ORDERED. 4 5 Dated: April 12, 2012. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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