Worley v. Avanquest North America Inc

Filing 51

ORDER by Judge Susan Illston granting 50 Stipulation. 3.The hearing on Defendants pleading challenge shall be set for April 19, 2013 at 9:00 a.m.4.The case management conference currently set for February 22, 2013 shall be continued to May 10, 20 13 at 2:30 p.m., and the Parties shall submit a joint case management statement seven days prior to the conference, on May 3, 2013.5.The Parties shall serve their respective initial disclosures no later than May 10, 2013. (tfS, COURT STAFF) (Filed on 2/15/2013)

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JAY EDELSON (Admitted Pro Hac Vice)
[e-mail]
RAFEY S. BALABANIAN (Admitted Pro Hac Vice)
[e-mail]
BENJAMIN H. RICHMAN (Admitted Pro Hac Vice)
[e-mail]
CHANDLER R. GIVENS (Admitted Pro Hac Vice)
[e-mail]
EDELSON MCGUIRE LLC
350 North LaSalle Street, Suite 1300
Chicago, Illinois 60654
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff and the Putative Class

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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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BENSON WORLEY, individually and on
behalf of all others similarly situated,

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Plaintiff,

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v.

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AVANQUEST NORTH AMERICA, INC., a
California corporation,

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Case No. 3:12-cv-04391-SI
STIPULUATION AND
[PROPOSED] ORDER
Date: February 22, 2013
Time: 2:30 p.m.
Judge: Honorable Susan Illston
Courtroom: Rm. 10 (19th Floor)

Defendant.

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Plaintiff Benson Worley and Defendant Avanquest North America, Inc. (“Avanquest”)

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(collectively, the “Parties”), by and through their undersigned counsel, hereby stipulate and agree,

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subject to Court approval, (i) to continue the deadline for Plaintiff to file an amended pleading, (ii)

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that Plaintiff may name Mr. Johnny Boyd as an additional party-plaintiff, (iii) to continue the case

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management conference currently set for February 22nd, and (iv) to set a briefing schedule on

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Avanquest’s anticipated challenge to Plaintiff’s amended pleading. In support of the instant

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stipulation, the Parties state as follows:

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STIPULATION AND
[PROPOSED] ORDER

CASE NO. 3:12-CV-04391-SI

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WHEREAS, on August 21, 2012, Plaintiff Worley filed his putative class action complaint

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asserting claims against Avanquest related to its alleged deceptive design and marketing of certain

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of its utility software products—namely, System Suite PC Tune-Up & Repair (which Worley

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alleges he purchased) and Fix-it Utilities, (Dkt. 1);

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WHEREAS, Avanquest later filed its motion to dismiss the complaint (Dkt. 32), which the

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Court granted, in part, and denied, in part. In its Order, the Court also set February 15th as the

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deadline for Plaintiff to file an amended pleading (if any), (Dkt. 48);

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WHEREAS, shortly thereafter, the Parties held a meet and confer pursuant to Federal Rule
26(f) and discussed various issues related to scheduling, discovery, and the substance of Plaintiff
Worley’s remaining claims, including as they relate to the Fix-It Utilities software;

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WHEREAS, following the Parties’ 26(f) conference and having reviewed the Court’s

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Order on Avanquest’s motion to dismiss, Plaintiff has determined that it is necessary to name as an

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additional-party plaintiff Mr. Johnny Boyd, who alleges that he purchased Avanquest’s Fix-It

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Utilities software;

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WHEREAS, the Parties have conferred regarding Plaintiff’s intention to name Mr. Boyd as

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a party-plaintiff, and Avanquest has no objection. However, as a result of Plaintiff’s need to further

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revise his pleadings to add Mr. Boyd, the Parties have also agreed that Plaintiff’s deadline to file

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an amended pleading should be continued one week, from February 15th to February 22nd;

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WHEREAS, the Parties have further conferred and agreed that to accommodate the time

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necessary for them to prepare, and the Court to consider, briefing on Avanquest’s anticipated

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pleading challenge, the case management conference currently scheduled for February 22 should

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be continued until after a hearing on the challenge and that a briefing schedule should be set as

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follows:

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Deadline to File Pleading Challenge:

March 8, 2013

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Deadline to File Opposition to
Pleading Challenge:

March 22, 2013

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STIPULATION AND
[PROPOSED] ORDER

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CASE NO. 3:12-CV-04391-SI

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Deadline to File Reply in Support of
Pleading Challenge:

April 2, 2013

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Hearing on Pleading Challenge:

April 19, 2013 (or such other date and time as
the Court is available)

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Deadline to Submit Joint Case
Management Statement:

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May 3, 2013 (or two (2) weeks following such
other date as the Court may set for the hearing
on Avanquest’s pleading challenge)

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Case Management Conference and
Deadline to Exchange Initial
Disclosures:

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May 10, 2013 (or three (3) weeks following
such other date as the Court may set for the
hearing on Avanquest’s pleading challenge)

WHEREAS, good cause exists to enter the instant stipulation and the Parties do not seek

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the relief contemplated herein for any improper purpose. The parties have not previously requested

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a modification of these dates and deadlines.

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NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED as follows:

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1.

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Plaintiff shall name Mr. Johnny Boyd as an additional party-plaintiff in his

anticipated amended pleading and do so no later than February 22, 2013.

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2.

Defendant shall file its challenge to Plaintiff’s amended pleading no later than

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March 8, 2013; Plaintiff shall file his opposition to the pleading challenge no later than March 22,

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2013; and, Defendant shall file its reply in support of the pleading challenge no later than April 2,

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2013.

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3.

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9:00 a.m.

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4.

The hearing on Defendant’s pleading challenge shall be set for April 19, 2013 at

The case management conference currently set for February 22, 2013 shall be

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continued to May 10, 2013 at 2:30 p.m., and the Parties shall submit a joint case management

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statement seven days prior to the conference, on May 3, 2013.

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5.

The Parties shall serve their respective initial disclosures no later than May 10,

2013.
IT IS SO STIPULATED.

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STIPULATION AND
[PROPOSED] ORDER

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CASE NO. 3:12-CV-04391-SI

BENSON WORLEY, individually and on behalf of
all others similarly situated,

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Dated: February 13, 2013

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JAY EDELSON (Admitted Pro Hac Vice)
[e-mail]
RAFEY S. BALABANIAN (Admitted Pro Hac Vice)
[e-mail]
BENJAMIN H. RICHMAN (Admitted Pro Hac Vice)
[e-mail]
ARI J. SCHARG (Admitted Pro Hac Vice)
[e-mail]
CHANDLER R. GIVENS (Admitted Pro Hac Vice)
[e-mail]
EDELSON MCGUIRE LLC
350 North LaSalle Street, Suite 1300
Chicago, Illinois 60654
Telephone: [phone]
Facsimile: [phone]

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SEAN P. REIS (SBN 184044)
[e-mail]
EDELSON MCGUIRE, LLP
30021 Tomas Street, Suite 300
Rancho Santa Margarita, California 92688
Telephone: [phone]
Facsimile: [phone]

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AVANQUEST NORTH AMERICA, INC.,

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By: /s/ Benjamin H. Richman
One of Plaintiff’s Attorneys

Dated: February 13, 2013

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By:

/s/ Carter Ott
CARTER OTT

LUANNE SACKS (SBN 120811)
[e-mail]
CARTER W. OTT (SBN 221660)
[e-mail]
ALEC CIERNY (SBN 275230)
[e-mail]
DLA PIPER LLP (US)
555 Mission Street, Suite 2400
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]

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I, Benjamin H. Richman, am the ECF user whose identification and password are being
used to file the foregoing Stipulation And [Proposed] Order. I hereby attest that the abovereferenced signatory to this stipulation has concurred in this filing

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STIPULATION AND
[PROPOSED] ORDER

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CASE NO. 3:12-CV-04391-SI

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ORDER
PURSUANT TO STIPULATION, IT IS SO ORDERED.

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ENTERED:

2/14/13
HONORABLE SUSAN ILLSTON
UNITED STATES DISTRICT JUDGE

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STIPULATION AND
[PROPOSED] ORDER

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CASE NO. 3:12-CV-04391-SI