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)

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Case3:12-cv-02127-JSW Document15 Filed05/22/12 Page1 of 5 1 (Attorney list on signature page) 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 SAN FRANCISCO DIVISION 5 6 7 Merrill Lynch, Pierce, Fenner & Smith Incorporated, as successor by merger to Banc of America Securities LLC, Jason David Glidden, and Verlin Olen Dobkins, 8 Plaintiffs, 9 No. 3:12-cv-02127-JSW STIPULATION AND [PROPOSED] SCHEDULING ORDER AS MODIFIED HEREIN Judge: Jeffrey S. White v. 10 N.R. Hamm Quarry, LLC, 11 Defendant. 12 13 14 15 Plaintiffs Merrill Lynch, Pierce, Fenner & Smith Incorporated, as successor by merger to 16 Banc of America Securities LLC (“BAS”), Jason David Glidden, and Verlin Olen Dobkins, and 17 Defendant N.R. Hamm Quarry, LLC, by and through their respective counsel of record, hereby 18 stipulate as follows: 19 WHEREAS, on April 27, 2012, Plaintiffs filed a (i) complaint seeking a declaratory 20 judgment that Defendant has waived its right to arbitrate against the Plaintiffs claims arising from 21 its auction-rate securities purchases from BAS, and (ii) motion for a preliminary injunction 22 seeking an order enjoining Defendant from prosecuting the arbitration styled N.R. Hamm Quarry, 23 LLC v. Merrill Lynch, Pierce, Fenner & Smith Incorporated, et al., FINRA Dispute Resolution 24 Arbitration No. 12-00370 (the “Arbitration”), pending a final judgment in this action; 25 WHEREAS, Defendant agreed on May 4, 2012, to stay the Arbitration pending a final 26 judgment on Plaintiffs’ claim for a declaratory judgment that Defendant has waived its right to 27 arbitrate; 28 STIPULATION AND [PROPOSED] ORDER NO. 3:12-CV-02127-JSW Case3:12-cv-02127-JSW Document15 Filed05/22/12 Page2 of 5 1 2 WHEREAS, the parties have met and conferred regarding a schedule for Defendant to move, answer, or otherwise respond to the complaint; 3 WHEREAS, Defendant has indicated that it intends to move to dismiss the complaint; 4 WHEREAS, Plaintiffs have informed Defendant that they anticipate cross-moving for 5 6 7 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 8 WHEREAS, this is the parties’ first request for an extension of time. 9 IT IS THEREFORE STIPULATED AND AGREED, by and between Plaintiffs and 10 Defendant, acting through their representative counsel, subject to this Court’s approval, as 11 follows: 12 1. 13 14 Defendant shall move, answer, or otherwise respond to the complaint by June 22, 2012; 2. If Defendant moves to dismiss the complaint, (i) Plaintiffs shall file an opposition 15 to Defendant’s motion to dismiss by August 9, 2012, and (ii) Defendant shall file 16 any reply in support of a motion to dismiss by September 14, 2012. 17 Dated: May 22, 2012 18 O’MELVENY & MYERS LLP 19 20 21 22 23 24 25 26 27 By: /s/ Robin M. Wall Robin M. Wall, rwall@omm.com Two Embarcadero Center, 28th Floor San Francisco, California 94111 Tel: (415) 984-8700 Fax: (415) 984-8701 Jonathan Rosenberg, jrosenberg@omm.com (pro hac vice application forthcoming) B. Andrew Bednark, abednark@omm.com (pro hac vice application forthcoming) 7 Times Square New York, New York 10036 Tel: (212) 326-2000 Fax: (212) 326-2061 Attorneys for Plaintiffs 28 STIPULATION AND [PROPOSED] ORDER -2- NO. 3:12-CV-02127-JSW Case3:12-cv-02127-JSW Document15 Filed05/22/12 Page3 of 5 1 2 3 4 5 6 7 8 9 10 11 GIRARD GIBBS LLP By: /s/ Jonathan K. Levine Daniel C. Girard, DCG@girardgibbs.com Jonathan K. Levine, JKL@girardgibbs.com 601 California Street, 14th Floor San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 STUEVE SIEGEL HANSON LLP Norman E. Siegel, siegel@stuevesiegel.com (pro hac vice application forthcoming) Rachel E. Schwartz, schwartz@stuevesiegel.com (pro hac vice application forthcoming) Matthew L. Dameron, dameron@stuevesiegel.com (pro hac vice application forthcoming) 460 Nichols Road, Suite 200 Kansas City, Missouri 64112 Tel: (816) 714-7100 Fax: (816) 714-7101 12 Attorneys for Defendant 13 14 Attestation 15 16 17 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 18 19 20 By: /s/ Robin M. Wall Robin M. Wall, Attorney for Plaintiffs 21 22 23 24 25 26 27 28 STIPULATION AND [PROPOSED] ORDER -3- NO. 3:12-CV-02127-JSW Case3:12-cv-02127-JSW Document15 Filed05/22/12 Page4 of 5 1 2 3 [PROPOSED] ORDER Having reviewed the above stipulation, IT IS HEREBY ORDERED that: 1. 4 5 Defendant shall move, answer, or otherwise respond to the complaint by June 22, 2012; 2. If Defendant moves to dismiss the complaint, (i) Plaintiffs shall file an opposition 6 to Defendant’s motion to dismiss by August 9, 2012, and (ii) Defendant shall file 7 any reply in support of a motion to dismiss by September 14, 2012. 8 9 10 Dated: May 23 2012 __, __________________________________ The Honorable Jeffrey S. White United States District Judge 11 12 13 14 15 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. 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION AND [PROPOSED] ORDER -4- NO. 3:12-CV-02127-JSW

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