Biotechnology Value Fund, L.P. et al v. Celera Corporporation et al

Filing 195

STIPULATION AND ORDER MODIFYING HEARING DATE FOR SUMMARY JUDGMENT.(whalc2, COURT STAFF) (Filed on 11/18/2014)

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Neil A. Goteiner (State Bar No. 083524)
[e-mail]
C. Brandon Wisoff (State Bar No. 121930)
[e-mail]
Karen P. Kimmey (State Bar No. 173284)
[e-mail]
Farella Braun + Martel LLP
235 Montgomery Street, 17th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
Stephen D. Hibbard (State Bar No. 177865)
SHEARMAN & STERLING LLP
Four Embarcadero Center, Suite 3800
San Francisco, CA 94111-5994
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Brian H. Polovoy (admitted pro hac vice)
Joanna Shally (admitted pro hac vice)
Andrew Z. Lipson (admitted pro hac vice)
599 Lexington Avenue
New York, NY 10022-6069
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants Celera Corporation, Kathy
Ordoliez, Richard H. Ayers, William G. Green, Peter
Barton Hutt, Gail K. Naughton, Wayne I. Roe, and
Bennett M. Shapiro
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
BIOTECHNOLOGY VALUE FUND,
Case No. CV-13-3248-WHA-DMR
L.P.; BIOTECHNOLOGY VALUE
STIPULATION AND [PROPOSED]
FUND II, L.P.; INVESTMENT 10, L.L.C.;
ORDER MODIFYING HEARING DATE
BVF INVESTMENTS, L.L.C.; BVF INC.;
FOR SUMMARY JUDGMENT
and BVF X, LLC,
Plaintiffs,
V S.

CELERA CORPORATION; CREDIT
SUISSE SECURITIES (USA) LLC;
KATHY ORDOS1EZ; RICHARD H.
AYERS; WILLIAM G. GREEN; PETER
BARTON HUTT; GAIL K. NAUGHTON;
WAYNE I. ROE; and BENNETT M.
SHAPIRO,
Defendants.
STIPULATION AND [PROPOSED] ORDER MODIFYING HEARING

Fordo Braun + Madel LLP
235 Montgomery Street, 17th Floor
San Francisco, CA 94104
[phone]

DATE FOR SUMMARY JUDGMENT
Case No. CV-13-3248-WHA

30738\4643778.1

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In accordance with Civil Local Rules 6-1 and 6-2, the parties — consisting of Plaintiffs

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Biotechnology Value Fund, L.P., Biotechnology Value Fund II, L.P., Investment 10, L.L.C.,

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BVF Investments, L.L.C., BVF Inc., and BVF X, LLC (collectively, "Plaintiffs") and Defendants

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Celera Corporation, Kathy Ordoriez, Richard H. Ayers, William G. Green, Peter Barton Hutt,

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Gail K. Naughton, Wayne I. Roe, and Bennett M. Shapiro (collectively, "Celera Defendants") —

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respectfully submit this Stipulation, with the accompanying Proposed Order, allowing the Celera

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Defendants' anticipated motion for summary judgment to be heard on January 8, 2015, as January

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1, 2015 is a federal and court holiday.

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WHEREAS:
1.

On November 1, 2013, the Court entered a Case Management Order ("First

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Order") that set the last day to file dispositive motions as November 6, 2014 and further stated:

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"No dispositive motions shall be heard more than 35 days after this deadline, i.e., if any party

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waits until the last day to file, then the parties must adhere to the 35-day track in order to avoid

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pressure on the trial date." (Docket No. 59 at ¶ 9.)

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2.

On August 12, 2014, at Plaintiffs' request, the Court entered a Second Case

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Management Order ("Second Order"), which extended the case management deadlines by adding

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an additional three weeks, and in relevant part, reset the last day to file dispositive motions as

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November 27, 2014. (Docket No. 158.) The Court further set the pretrial conference for

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February 4, 2015 at 2:00 P.M. and set trial to begin on February 17, 2015 at 7:30 A.M. The

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Second Order does not specifically refer to the timing of any hearing on the motion for summary

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judgment.

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3.

Defendants intend to file their motion for summary judgment within the deadline

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set in the case management order. The Celera Defendants anticipate filing their motion for

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summary judgment prior to November 27, 2014. (Because November 27 is a federal holiday, the

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Celera Defendants anticipate filing their motion by November 26, 2014.) A problem arises,

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however, because the first hearing date 35 days after filing is January 1, 2015, which is another

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federal and court holiday. Filing the anticipated summary judgment motion earlier than the court-

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ordered deadline also would not solve this problem because, even if the parties were to file a

Farella Braun Mane! LLP
235 Monlgornely Street, 17111 Floor
San Francisco. CA 94104
(415) 954.44011

STIPULATION AND [PROPOSED] ORDER MODIFYING
HEARING DATE FOR SUMMARY JUDGMENT
Case No CV-13-3248-WHA

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30738\4643778 1

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week earlier on November 20, 2014, the first available hearing date would be December 25, 2014

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— another federal holiday.'

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4.

The parties, therefore, jointly request that the motion for summary judgment be

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heard at the Court's civil law and motion calendar on Thursday, January 8, 2015 at 8:00 A.M.

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The parties would also be available any other day during the week of January 5, 2015 if the Court

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were inclined to specially set the hearing. While the Celera Defendants could attend a hearing on

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the motion were the Court to set it on Wednesday, December 31, 2014 — which is exactly 35 days

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after the Celera Defendants expect to file their motion for summary judgment — the Plaintiffs are

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not available for argument on that date as the partner in charge of the litigation (Joy A. Kruse)

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and the client (Mark Lampert) are unavailable.
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The parties do not anticipate that this requested modification will have an effect on

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the schedule as this modification would not interfere with the final pretrial conference, which is

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set for February 4, 2015.

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6.

All other previous time modifications in the case, whether by stipulation or

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proposed order, are reflected in the Court's November 1, 2013 First Order (Docket No. 59),

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August 12, 2014 Second Order (Docket No. 158), and Orders granting and denying requests by

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the parties to extend briefing with respect to the Fall 2013 motion to dismiss. (See Docket Nos.

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31, 55, 58, and 67.)

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7.

Accordingly, the parties hereby stipulate, subject to the Court's approval, that the

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Celera Defendants may set the hearing on their anticipated motion for summary judgment on

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January 8, 2015 at 8:00 A.M.

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ATTESTATION: Pursuant to General Order 45, Part X-B, the filer attests that concurrence in

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the filing of this document has been obtained from each of the signatories.

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FareHa Braun Martel LLP
235 Montgomery Street, 1710 Floor
San Francisco. CA 94104
[phone]

Filing on November 20, 2014 would not be realistic in any event because Plaintiffs' expert reply reports were
served on November 12, 2014 and the final expert deposition will occur on November 25, 2014.
STIPULATION AND [PROPOSED] ORDER MODIFYING
HEARING DATE FOR SUMMARY JUDGMENT
Case No. CV-13-3248-WHA

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30738\4643778.1

Dated: November 13, 2014
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By: /s/ Karen P. Kimmey
Karen P. Kimmey

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FARELLA BRAUN + MARTEL LLP

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Attorneys for Defendants Celera
Corporation, Kathy Ordofiez, Richard H.
Ayers, William G. Green, Peter Barton
Hutt, Gail K. Naughton, Wayne I. Roe, and
Bennett M. Shapiro

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Dated: November 13, 2014
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By: /s/Joy A. Kruse
Joy A. Kruse

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Richard M. Heimann (Cal. Bar No. 063607)
Joy A. Kruse (Cal. Bar No. 142799)
Bruce W. Leppla (Cal. Bar No. 071649)
Marc A. Pilotin (Cal. Bar No. 266369)
LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: [phone]
Facsimile . [phone]
Email [e-mail]
[e-mail]
[e-mail]
[e-mail]

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Michael J. Miarmi (admitted pro hac vice)
LIEFF, CABRASER, HEIMANN &
BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail] Attorneys for
Plaintiffs

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PURSUANT TO STIPULATION, IT IS SO ORDERED

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Dated: November , 2014
William Alsup
United States District Judge

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Farella Braun + Martel LLP
235 Montgomery Street, 1711, Floor
San Francisco, CA 94194
[phone]

STIPULATION AND [PROPOSED] ORDER MODIFYING
HEARING DATE FOR SUMMARY JUDGMENT
Case No. CV-I3-3248-WHA

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30738\4643778.1