Dodson et al v. Tempur-Sealy International, Inc. et al

Filing 78

STIPULATION AND ORDER re 77 STIPULATION WITH PROPOSED ORDER re 56 Case Management Scheduling Order; Stipulation and Order to Modify the June 4, 2014, Scheduling Order filed by Alan Kaufman, Toni Kibbee, Diane Kucharski, Ericka And erson, Tina White, Robbie Simmons, Kurt Anderson, Julie Davidoff, Jerry Kucharski, Melody Todd, Tracey Palmer, Sara Stone, Keith Hawkins, Thomas Comiskey, Brian Stone, Patricia Kaufman, Johnny Martinez, Alvin Todd. Signed by Judge Jon S. Tigar on October 20, 2014. (wsn, COURT STAFF) (Filed on 10/20/2014)

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Allen M. Stewart (SBN 262594)
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[e-mail]
ALLEN STEWART, P.C.
325 N. St. Paul Street, Suite 4000
Dallas, Texas 75201
214/965-8700 (phone)
214/965-8701 (fax)
Attorney for Plaintiffs Alvin Todd,Melody Todd, Robbie Simmons, Tina White, Keith
Hawkins, Thomas Comiskey, Alan Kaufman, Patricia Kaufman, Johnny Martinez,
Julie Davidoff, Tracey Palmer, Toni Kibbee, Brian Stone, Sarah Stone, Kurt Anderson,
Ericka Anderson, Jerry Kucharski, Diane Kucharski and the Proposed Class
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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ALVIN TODD and MELODY
TODD, et al., Individually and on
behalf of all others similarly situated,

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Plaintiffs,

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vs.

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TEMPUR SEALY
INTERNATIONAL, INC., formerly
known as TEMPUR-PEDIC
INTERNATIONAL, INC. and
TEMPUR-PEDIC NORTH
AMERICA, LLC
Defendants.

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Case No. 3:13-cv-04984-JST
STIPULATION AND ORDER TO
MODIFY THE JUNE 4, 2014,
SCHEDULING ORDER
Complaint Filed: October 25, 2013
Trial Date: None Set

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Pursuant to Local Rules 6 and 7, Plaintiffs

and Defendants Tempur Sealy

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International, Inc., formerly known as Tempur-Pedic International, Inc. and Tempur-

STIPULATION AND ORDER TO MODIFY THE JUNE 4, 2014, SCHEDULING
ORDER
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Pedic North America, LLC (Collectively, “Defendants” and, together with Plaintiffs,
known as “Parties”), hereby stipulate and agree to the following modifications of the

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June 4, 2014, Scheduling Order.

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I.

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1.

Plaintiffs filed the original Complaint on October 25, 2013.

2.

Plaintiffs filed the First Amended Complaint on November 7, 2013 and the

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BACKGROUND

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Second Amended Complaint on August 29, 2014.
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3.

The following time modifications have occurred in this case:
a.

On December 5, 2013, the Parties filed their Joint Stipulation to Extend
Defendants’ Responsive Pleading Date to January 9, 2014.

b.

On January 16, 2014, the Court entered an Order, pursuant to the Parties’
stipulation, extending the time for Plaintiffs to file a response to
Defendant’s Motion to Dismiss and Motion to Strike Plaintiffs’ Complaint.

c.

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On April 29, 2014, the Court entered an Order, pursuant to the Parties’
stipulation, to continue the case management conference. (See
Declaration of Angelique Adams at ¶ 9, attached as Exhibit “A”
(hereinafter, “Adams Decl.”).

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4.

The case Scheduling Order was entered on June 4, 2014, setting the deadline to

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file the motion for class certification on January 15, 2015. Adams Decl.¶ 4.

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5.

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6. The depositions of the proposed class representatives have been taken. Adams Decl.¶

The Parties have exchanged initial written discovery. Adams Decl.¶ 5.

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6.
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7.

The depositions of the Defendants’ witnesses are currently being scheduled.

Adams Decl.¶ 7.

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STIPULATION AND ORDER TO MODIFY THE JUNE 4, 2014, SCHEDULING
ORDER
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8. With the exception of the Supplemental Joint Case Management Statement filed
June 11, 2014, which requested an extension of one week for the class certification

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hearing, this is the first request for a modification of the June 4, 2014, Scheduling

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Order. Adams Decl.¶ 8.

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9.

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Because this is a potential class action case wherein the laws of eleven states are at

issue and because Defendants’ ESI discovery efforts have taken longer than expected,

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the Parties need additional time to develop and complete the underlying discovery
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before the class certification motion deadline. Adams Decl.¶10.

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10.

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the class certification hearing date of July 2, 2015. Adams Decl.¶ 11.

The modifications of the June 4, 2014, Scheduling Order will not alter or affect

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11. Moreover, the modification of the June 4, 2014, Scheduling Order will not
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adversely affect the interests of any of the Parties but will instead enable the Parties to

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fully and thoroughly develop and complete the underlying discovery necessary to

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prepare and respond to Plaintiffs’ motion for class certification. Adams Decl.¶ 12.

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12. The Parties conferred on October 10, October 14 and October 15, 2014, regarding
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a modification of the June 4, 2014, Scheduling Order and have reached an agreement as

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described below. Adams Decl.¶ 13.

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II.

STIPULATION

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13. The Parties stipulate and agree to an extension of the following: 1) the deadlines
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for Plaintiffs to file their motion for class certification, for Defendants’ to file their brief
in opposition, and for Plaintiffs to file their reply, and 2) the deadlines for the

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STIPULATION AND ORDER TO MODIFY THE JUNE 4, 2014, SCHEDULING
ORDER
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depositions of Plaintiffs’ and Defendants’ experts regarding class certification to be
completed.

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14. The Parties further stipulate and agree to add a deadline for the Parties to identify

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by name the Parties’ expert witnesses and also to provide proposed dates for their

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depositions.

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15. The Parties’ stipulate and agree to, and request the Court to order, the following

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modified deadlines:
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Event

Current Deadline

Proposed Deadline

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Deadline for Plaintiffs to identify
expert witnesses and provide proposed
deposition dates
Deadline to file motion for class
certification
Deadline for Defendants to identify
expert witnesses and provide proposed
deposition dates
Depositions of Plaintiffs’ expert
witnesses re: class certification
Deadline to file opposition to motion
for class certification
Depositions of Defendants’ expert
witnesses re: class certification
Deadline to file reply in support of
motion for class certification
Class certification hearing

None.

January 16, 2015

January 15, 2015

February 16, 2015

None.

March 10, 2015

January 30, 2015March 3, 2015
March 25, 2015

February 18, 2015 –
March 20, 2015
April 6, 2015

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April 9, 2015 – May 9, April 15, 2015 –
2015
May 9, 2015
June 13, 2015
No change.
July 2, 2015

No change.

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DATED: October 17, 2014.

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BY: /s/ Allen M. Stewart
Allen M. Stewart
ALLEN STEWART, P.C.
Allen M. Stewart (262594)
STIPULATION AND ORDER TO MODIFY THE JUNE 4, 2014, SCHEDULING
ORDER
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Steve Baughman Jensen*
325 N. St. Paul Street, Suite 4000
Dallas, Texas 75201
214/965-8700
214/965-8701 (fax)
SHIPMAN & WRIGHT
Gary K. Shipman*
William G. Wright*
Angelique Adams*
575 Military Cutoff Road, Suite 106
Wilmington, North Carolina 28405
910/762-1990
910/762-6752 (fax)
SIMON LAW FIRM, P.C.
John Simon*
Ryan Keane*
800 Market St.
St. Louis, MO 63101
314/241-2929
314/241-2029 (fax)
Attorneys for Plaintiffs and the Proposed
Class
*Admitted pro hac vice

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CALL & JENSEN
A Professional Corporation
Mark L. Eisenhut
Matthew R. Orr
Aaron L. Renfro
610 Newport Center Drive, Suite 700
Newport Beach, CA 92660
[phone]
[phone] (fax)

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RUMBERGER, KIRK & CALDWELL, P.A.
Douglas B. Brown
Daniel J. Gerber
300 South Orange Avenue
Orlando, FL 32802
STIPULATION AND ORDER TO MODIFY THE JUNE 4, 2014, SCHEDULING
ORDER
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[phone]
[phone] (fax)

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BY: /s/ Daniel J. Gerber
Daniel J. Gerber
Attorneys for Defendants Tempur Sealy
International, Inc., formerly known as TempurPedic International, Inc. and Tempur-Pedic
North America, LLC

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STIPULATION AND ORDER TO MODIFY THE JUNE 4, 2014, SCHEDULING
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DECLARATION OF ANGELIQUE ADAMS
I, Angelique Adams, declare:
1.

I am attorney licensed to practice law in North Carolina that has been

admitted pro hac vice to appear in this case. I am an attorney at the law firm of Shipman
& Wright, LLP located in Wilmington, North Carolina, counsel of record for Plaintiffs. I
have personal knowledge of the facts contained below and believe that I am competent to
testify as to such facts.
2.

I make this declaration in support of the Parties’ Stipulation to Modify the

June 4, 2014, Scheduling Order.
3.

This case is a potential class action case wherein the consumer

representatives allege violations of various states’ laws in connection with Defendants’
retail sales and marketing of Tempur-pedic mattress and pillow products containing
Tempur material.

The consumer representatives allege, among other things, that

Defendants failed to disclose that their products contained volatile organic compounds
(“VOCs”) and formaldehyde.
4.

The case Scheduling Order was entered on June 4, 2014, setting the

deadline to file the motion for class certification on January 15, 2015.
5.

The Parties have exchanged initial written discovery.

6.

The depositions of the proposed class representatives have been taken.

7.

The depositions of the Defendants’ witnesses are currently being scheduled.

8.

With the exception of the Supplemental Joint Case Management Statement

filed June 11, 2014, which requested an extension of one week for the class certification
hearing, this is the first request for a modification of the June 4, 2014, Scheduling Order.
9.

The following time modifications have occurred in this case:

a.

On December 5, 2014, the Parties filed their Joint Stipulation to

Extend Defendants’ Responsive Pleading Date to January 9, 2014.

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STIPULATION AND ORDER TO MODIFY THE JUNE 4, 2014, SCHEDULING
ORDER
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b.

On January 16, 2014, the Court entered an Order, pursuant to the Parties’

stipulation, extending the time for Plaintiffs to file a response to Defendant’s
Motion to Dismiss and Motion to Strike Plaintiffs’ Complaint; and
c.

On April 29, 2014, the Court entered an Order, pursuant to the Parties’

stipulation, to continue the case management conference.
10.

Because this is a potential class action case wherein the laws of eleven

states are at issue and because Defendants’ ESI discovery efforts have taken longer than
expected, the Parties need additional time to develop and complete the underlying
discovery before the class certification motion deadline.
11.

The modifications of the June 4, 2014, Scheduling Order will not alter or

affect the class certification hearing date of July 2, 2015.
12.

The modification of the June 4, 2014, Scheduling Order will not adversely

affect the interests of any of the Parties but will instead enable the Parties to fully and
thoroughly develop and complete the underlying discovery necessary to prepare and
respond to Plaintiffs’ motion for class certification.
13.

I have conferred with counsel for Defendants and they agree to the

proposed modifications of the June 4, 2014, Scheduling Order.
I declare under penalty of perjury that the foregoing is true, and that this
declaration is made this 17th day of October, 2014.

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/s/ Angelique Adams
Angelique Adams

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PURSUANT TO THE ABOVE STIPULATION, IT IS SO ORDERED.

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S . Ti ga r

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J u d ge J o

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Jon S. Tigar
United States District Judge

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DERED
SO OR
___________________________
IT IS

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UNIT
ED

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Dated: _____________________
October 20, 2014

S DISTRICT
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ORDER

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D IS T IC T O
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SIGNATURE CERTIFICATION
I hereby certify that the content of this document is acceptable to Daniel Gerber,
counsel for Defendants and I have obtained Mr. Gerber’s authorization to affix his
electronic signature to this document.

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DATED: October 17, 2014.
BY: /s/ Allen M. Stewart
Allen M. Stewart
ALLEN STEWART, P.C.
Allen M. Stewart (262594)
325 N. St. Paul Street, Suite 4000
Dallas, Texas 75201
214/965-8700
214/965-8701 (fax)
SHIPMAN & WRIGHT
Gary K. Shipman
William G. Wright
Angel Adams
575 Military Cutoff Road, Suite 106
Wilmington, North Carolina 28405
910/762-1990
910/762-6752 (fax)

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SIMON LAW FIRM, P.C.
John Simon
Ryan Keane
800 Market St.
St. Louis, MO 63101
314/241-2929
314/241-2029 (fax)
Attorneys for Plaintiffs and the Proposed
Class

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CERTIFICATE OF SERVICE
I hereby certify that on October 17, 2014, I electronically filed the foregoing
document described as Joint Stipulation to Modify the June 4, 2014, Scheduling Order
with the Clerk of the Court using the CM/ECF System which will send notification of
such filing via electronic mail to all counsel of record.

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BY: /s/ Allen M. Stewart
Allen M. Stewart

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