Be In, Inc. v. Google Inc. et al

Filing 57

STIPULATION WITH PROPOSED ORDER ALLOWING BE IN, INC. TO FILE SECOND AMENDED COMPLAINT AND PROVIDING NAMED DEFENDANTS WITH AN EXTENSION TO RESPOND THERETO filed by Be In, Inc., Google Inc., Richard Robinson. (Attachments: # 1 Exhibit A)(Kuwayti, Kenneth) (Filed on 6/7/2013)

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CHARLES S. BARQUIST (BAR NO. 133785)
[e-mail]
WENDY J. RAY (BAR NO. 226269)
[e-mail]
MORRISON & FOERSTER LLP
707 Wilshire Blvd., Suite 6000
Los Angeles, California 90017-3543
Telephone: [phone]
Facsimile: 213.892.5454
KENNETH A. KUWAYTI (BAR NO. 145384)
[e-mail]
CECILIA ZINITI (BAR NO. 275025)
MORRISON & FOERSTER LLP
755 Page Mill Road
Palo Alto, California 94304-1018
Telephone:
650.813.5600
Facsimile:
650.494.0792
Attorneys for Plaintiff
BE IN, INC., A NEW YORK CORPORATION
COLLEEN BAL (BAR NO. 167637)
[e-mail]
CHARLES TAIT GRAVES (BAR NO. 197923)
[e-mail]
RIANA S. PFEFFERKORN (BAR NO. 266817)
WILSON SONSINI GOODRICH & ROSATI
One Market Plaza, Spear Tower, Suite 3300
San Francisco, California 94105-1126
Telephone:
415.947.2000
Facsimile:
415.947.2099
Attorneys for Defendants
GOOGLE INC., AND RICHARD ROBINSON

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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BE IN, INC., a New York Corporation,

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Plaintiff,
v.
GOOGLE INC., a California Corporation,
RICHARD ROBINSON, and DOES 1 through 3,
inclusive,
Defendants.

Case No. 5:12-CV-03373-LHK
STIPULATION AND
[PROPOSED] ORDER
ALLOWING BE IN, INC TO FILE
SECOND AMENDED
COMPLAINT AND PROVIDING
NAMED DEFENDANTS WITH
AN EXTENSION TO RESPOND
THERETO
The Honorable Lucy H. Koh

STIP & [PROP.] ORDER ALLOWING BE IN TO FILE 2ND AMENDED COMPLAINT AND
PROVIDING DEFENDANTS WITH AN EXTENSION TO RESPOND
Case No. 5:12-CV-03373-LHK
pa-1591684

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STIPULATION

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The parties submit this stipulation and proposed order allowing Plaintiff Be In, Inc. to file

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its Second Amended Complaint and providing the named defendants with an extension of time to

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respond thereto.

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WHEREAS, pursuant to the May 21, 2013 stipulation of the parties, (D.I. 46), Be In

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provided Defendants with a draft of its proposed Second Amended Complaint on May 31, 2013;

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WHEREAS, pursuant to the same stipulation, counsel for Google Inc. and Richard

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Robinson (“Defendants”) informed Be In on June 5, 2013 that Defendants were willing to

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stipulate to the filing of Be In’s Second Amended Complaint, as long as the stipulation was not

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construed as a waiver of any rights, nor an admission of any of the allegations in the proposed

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Second Amended Complaint. Defendants expressly reserve, and Be In expressly acknowledges

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Defendants’ reservation of, all rights, defenses and objections to challenge the proposed Second

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Amended Complaint on any ground;

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WHEREAS, no related motion is currently pending;

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WHEREAS, the parties have agreed that, once the Second Amended Complaint is filed,

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counsel for Defendants will accept service of the Second Amended Complaint on behalf of all

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named defendants, without waiving any rights to challenge the Second Amended Complaint,

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including any rights to challenge personal jurisdiction; and

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WHEREAS, Plaintiff Be In, Inc. has agreed that, once service is effected, it will provide

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all named defendants with a two-week extension beyond the deadline provided under applicable

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rules to move, answer or otherwise respond to the proposed Second Amended Complaint;

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WHEREAS, the parties have agreed that, in the event that Defendants file a motion to

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dismiss the Second Amended Complaint, (1) Defendants will provide Plaintiff with one

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additional week beyond that provided by the Local Rules to file its opposition to such motion, (2)

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Plaintiff will provide the named defendants with an additional week beyond that provided by the

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Local Rules to file its reply, and (3) Counsel for Defendants will request from the Court the

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earliest available hearing date for the motion consistent with counsels’ availability.

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1
STIP & [PROP.] ORDER ALLOWING BE IN TO FILE 2ND AMENDED COMPLAINT AND
PROVIDING DEFENDANTS WITH AN EXTENSION TO RESPOND
Case No. 5:12-CV-03373-LHK
pa-1591684

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NOW, THEREFORE, and in light of the foregoing, IT IS HEREBY STIPULATED AND

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AGREED by and between the respective attorneys for Plaintiff and Defendants, and subject to

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approval by this Court, as follows:

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1. Defendants’ stipulation to the filing of the proposed Second Amended Complaint is

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not and shall not be construed as a waiver of any rights, nor an admission of any of the

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allegations in the proposed Second Amended Complaint. Defendants shall retain all

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rights, defenses and objections to challenge the proposed Second Amended Complaint

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on any ground.

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2. Be In shall file its Second Amended Complaint, attached hereto as Exhibit A, within
10 days of this order.
3. The named defendants shall have a two-week extension beyond the date provided

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under applicable rules to move, answer or otherwise respond to the Second Amended

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Complaint.

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4. In the event the named defendants file a motion to dismiss the Second Amended

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Complaint, (a) Plaintiff shall file and serve its opposition not more than 21 days after

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the motion is filed, and .(b) the named defendants shall file and serve their reply not

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more than 14 days after the opposition is filed.

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Dated: June 7, 2013

CHARLES S. BARQUIST
KENNETH A. KUWAYTI
WENDY J. RAY
CECILIA ZINITI
MORRISON & FOERSTER LLP

By:

/s/ Kenneth A. Kuwayti
KENNETH A. KUWAYTI

Attorneys for Plaintiff
BE IN, INC.
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STIP & [PROP.] ORDER ALLOWING BE IN TO FILE 2ND AMENDED COMPLAINT AND
PROVIDING DEFENDANTS WITH AN EXTENSION TO RESPOND
Case No. 5:12-CV-03373-LHK
pa-1591684

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Dated: June 7, 2013

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COLLEEN BAL
CHARLES TAIT GRAVES
WILSON SONSINI GOODRICH & ROSATI

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By:

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/s/ Colleen Bal
COLLEEN BAL

Attorneys for Defendants
GOOGLE INC. and RICHARD ROBINSON

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ORDER

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IT IS SO ORDERED.

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Dated:

By:
The Honorable Lucy H. Koh
United States District Judge

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STIP & [PROP.] ORDER ALLOWING BE IN TO FILE 2ND AMENDED COMPLAINT AND
PROVIDING DEFENDANTS WITH AN EXTENSION TO RESPOND
Case No. 5:12-CV-03373-LHK
pa-1591684

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ATTESTATION

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I, Kenneth A. Kuwayti, am the ECF user whose ID and password are being used to file

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this Stipulation and [Proposed] Order Allowing Be In, Inc. to File Second Amended Complaint

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and Providing Named Defendants with an Extension to Respond Thereto. In compliance with

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General Order 45.X.B, I hereby attest that Plaintiff’s counsel, Colleen Bal, has concurred in this

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filing.

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Dated: June 7, 2013

MORRISON & FOERSTER LLP

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By:

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/s/ Kenneth A. Kuwayti
KENNETH A. KUWAYTI
Attorneys for Defendants

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STIP & [PROP.] ORDER ALLOWING BE IN TO FILE 2ND AMENDED COMPLAINT AND
PROVIDING DEFENDANTS WITH AN EXTENSION TO RESPOND
Case No. 5:12-CV-03373-LHK
pa-1591684