Merrill Lynch, Pierce, Fenner & Smith Incorporated et al v. N.R. Hamm Quarry, LLC

Filing 17

ORDER GRANTING AS MODIFIED 15 Stipulation and Scheduling Order. Motion Hearing set for 10/26/2012 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. Signed by Judge Jeffrey S. White on May 23, 2012. (jswlc3, COURT STAFF) (Filed on 5/23/2012)

Case3:12-cv-02127-JSW Document15 Filed05/22/12 Page1 of 5

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(Attorney list on signature page)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as successor by merger to Banc
of America Securities LLC, Jason David
Glidden, and Verlin Olen Dobkins,

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Plaintiffs,
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No. 3:12-cv-02127-JSW
STIPULATION AND [PROPOSED]
SCHEDULING ORDER
AS MODIFIED HEREIN
Judge: Jeffrey S. White

v.
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N.R. Hamm Quarry, LLC,
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Defendant.
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Plaintiffs Merrill Lynch, Pierce, Fenner & Smith Incorporated, as successor by merger to
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Banc of America Securities LLC (“BAS”), Jason David Glidden, and Verlin Olen Dobkins, and
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Defendant N.R. Hamm Quarry, LLC, by and through their respective counsel of record, hereby
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stipulate as follows:
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WHEREAS, on April 27, 2012, Plaintiffs filed a (i) complaint seeking a declaratory
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judgment that Defendant has waived its right to arbitrate against the Plaintiffs claims arising from
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its auction-rate securities purchases from BAS, and (ii) motion for a preliminary injunction
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seeking an order enjoining Defendant from prosecuting the arbitration styled N.R. Hamm Quarry,
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LLC v. Merrill Lynch, Pierce, Fenner & Smith Incorporated, et al., FINRA Dispute Resolution
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Arbitration No. 12-00370 (the “Arbitration”), pending a final judgment in this action;
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WHEREAS, Defendant agreed on May 4, 2012, to stay the Arbitration pending a final
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judgment on Plaintiffs’ claim for a declaratory judgment that Defendant has waived its right to
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arbitrate;
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STIPULATION AND [PROPOSED] ORDER
NO. 3:12-CV-02127-JSW

Case3:12-cv-02127-JSW Document15 Filed05/22/12 Page2 of 5

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WHEREAS, the parties have met and conferred regarding a schedule for Defendant to
move, answer, or otherwise respond to the complaint;

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WHEREAS, Defendant has indicated that it intends to move to dismiss the complaint;

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WHEREAS, Plaintiffs have informed Defendant that they anticipate cross-moving for

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summary judgment when they oppose Defendant’s motion to dismiss;
WHEREAS, the parties have agreed to discuss a schedule for the Court’s approval
relating to Plaintiffs’ anticipated motion for summary judgment after the motion is filed; and

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WHEREAS, this is the parties’ first request for an extension of time.

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IT IS THEREFORE STIPULATED AND AGREED, by and between Plaintiffs and

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Defendant, acting through their representative counsel, subject to this Court’s approval, as

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follows:

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1.

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Defendant shall move, answer, or otherwise respond to the complaint by June 22,
2012;

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If Defendant moves to dismiss the complaint, (i) Plaintiffs shall file an opposition

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to Defendant’s motion to dismiss by August 9, 2012, and (ii) Defendant shall file

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any reply in support of a motion to dismiss by September 14, 2012.

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Dated: May 22, 2012

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O’MELVENY & MYERS LLP

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By: /s/ Robin M. Wall
Robin M. Wall, [e-mail]
Two Embarcadero Center, 28th Floor
San Francisco, California 94111
Tel: [phone]
Fax: [phone]
Jonathan Rosenberg, [e-mail] (pro hac vice application forthcoming)
B. Andrew Bednark, [e-mail] (pro hac vice application forthcoming)
7 Times Square
New York, New York 10036
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiffs

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STIPULATION AND [PROPOSED] ORDER

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NO. 3:12-CV-02127-JSW

Case3:12-cv-02127-JSW Document15 Filed05/22/12 Page3 of 5

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GIRARD GIBBS LLP
By: /s/ Jonathan K. Levine
Daniel C. Girard, [e-mail]
Jonathan K. Levine, [e-mail]
601 California Street, 14th Floor
San Francisco, CA 94108
Telephone: [phone]
Facsimile: [phone]
STUEVE SIEGEL HANSON LLP
Norman E. Siegel, [e-mail] (pro hac vice application forthcoming)
Rachel E. Schwartz, [e-mail] (pro hac vice application forthcoming)
Matthew L. Dameron, [e-mail] (pro hac vice application forthcoming)
460 Nichols Road, Suite 200
Kansas City, Missouri 64112
Tel: [phone]
Fax: [phone]

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Attorneys for Defendant
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Attestation

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I hereby attest that I have obtained concurrence in the filing of this Stipulation from all of
the parties listed in the signature blocks above.
Dated: May 22, 2012

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By:

/s/ Robin M. Wall

Robin M. Wall, Attorney for Plaintiffs

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STIPULATION AND [PROPOSED] ORDER

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NO. 3:12-CV-02127-JSW

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[PROPOSED] ORDER
Having reviewed the above stipulation, IT IS HEREBY ORDERED that:
1.

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Defendant shall move, answer, or otherwise respond to the complaint by June 22,
2012;

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If Defendant moves to dismiss the complaint, (i) Plaintiffs shall file an opposition

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to Defendant’s motion to dismiss by August 9, 2012, and (ii) Defendant shall file

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any reply in support of a motion to dismiss by September 14, 2012.

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Dated: May 23 2012
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__________________________________
The Honorable Jeffrey S. White
United States District Judge

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It is FURTHER ORDERED that if Defendant moves to dismiss, it shall notice the
hearing for Friday, October 26, 2012 at 9:00 a.m. The parties are admonished that
pursuant to this Court's standing orders, briefs on motions to dismiss may not
exceed fifteen (15) pages. Thus, if any party wishes to file an oversized brief, they
must make a request showing good cause sufficiently in advance of the deadline by
which that brief is due for the Court to make a ruling on the request.

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STIPULATION AND [PROPOSED] ORDER

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NO. 3:12-CV-02127-JSW