Demetris et al v. Transport Workers Union of America, AFL-CIO

Filing 58

MODIFIED Order by Hon. Vince Chhabria granting 57 Motion to Continue the Case Management Conference.(knm, COURT STAFF) (Filed on 6/12/2014)

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STEPHEN P. BERZON (SBN 46540)
CONNIE K. CHAN (SBN 284230)
ALTSHULER BERZON LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
RICHARD EDELMAN (pro hac vice)
O'DONNELL, SCHWARTZ &
ANDERSON, P.C.
1300 L Street, N.W.
Suite 1200
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendant Transport Workers
Union of America, AFL/CIO

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANIEL DEMETRIS, et al.
Plaintiffs,

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v.
TRANSPORT WORKERS UNION OF
AMERICA, AFL/CIO,
Defendant.

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Case No. CV 13-cv-5566-VC
UNOPPOSED MOTION TO
CONTINUE CASE MANAGEMENT
CONFERENCE AND MODIFIED
ORDER
Civ. L.R. 6-3
Date:
Time:
Ctrm.:
Judge:

n/a
n/a
A
Hon. Vince Chhabria

Complaint Filed: December 4, 2013
Trial Date: n/a

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UNOPPOSED MOTION TO CONTINUE CASE MANAGEMENT CONFERENCE
AND [PROPOSED] ORDER
Case No. 13-CV-5566-VC

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Defendant Transport Workers Union of America, AFL/CIO (“Defendant”) hereby moves

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the Court, pursuant to Civil Local Rule 6-3(a), for an order continuing the Case Management

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Conference currently scheduled for July 11, 2014, to Tuesday, August 12, 2014, at 10 a.m.

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Defendant requests a continuance of the Case Management Conference because its lead

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counsel, Stephen Berzon, has a longstanding commitment to travel out of the country on July 11,

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2014, and will be unavailable from that date until July 29, 2014. As lead counsel, Mr. Berzon

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has full authority to make decisions about any issue that may come up during the Case

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Management Conference, and Defendant believes that his presence at the Conference would

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assist the Court and facilitate effective and efficient case management.

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Defendant’s Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56(a) for Failure

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to Exhaust Internal Union Remedies; or, Alternatively, to Dismiss First Amended Complaint

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Pursuant to Fed. R. Civ. P. 12(b)(6) is currently set for hearing on September 4, 2014, and no

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other deadlines have been set in this matter. Therefore, rescheduling the Case Management

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Conference to August 12, 2014 will not affect any other scheduled deadlines. Plaintiffs do not

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oppose Defendant’s motion to continue the Case Management Conference to August 12, 2014.

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Defendant’s motion is based on the following facts and previous time modifications in
this case:
Plaintiffs filed and served on Defendant a complaint in the above-captioned matter on
December 5, 2013;
Pursuant to Civil Local Rule 6-1(a), the Parties previously stipulated to extend the time
within which Defendant must file a responsive pleading to January 27, 2014;

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On January 23, 2014, this case was reassigned to Judge William H. Orrick;

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In light of the reassignment of this matter, the Parties agreed to extend the time within

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which Defendant must file a responsive pleading to February 18, 2014;
On February 18, 2014, TWU filed a motion to dismiss Plaintiffs’ original complaint for
failure to exhaust internal union remedies and failure to state a claim (Dkt. 18);

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The Parties stipulated to allow Plaintiffs to file an amended complaint to add as a named

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plaintiff Thomas Powell and to incorporate allegations from his complaint originally filed in the

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UNOPPOSED MOTION TO CONTINUE CASE MANAGEMENT CONFERENCE
AND [PROPOSED] ORDER
Case No. 13-CV-5566-VC

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Northern District of Texas in the action styled Powell v. TWU et al., Case No. 3:14-cv-00375-G

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(N.D. Tex.), and to a briefing schedule on any amended motion to dismiss by TWU;

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At a case management conference on March 18, 2014, the Court (Judge Orrick) adopted

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the parties’ agreed upon briefing schedule for Defendant’s motion to dismiss the First Amended

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Complaint (Dkt. 31);

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On April 17, 2014, this case was reassigned to Judge Vince Chhabria;

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On April 30, 2014, TWU filed its response to Plaintiffs’ First Amended Complaint (Dkt.

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47). Due to an intervening Ninth Circuit en banc decision, holding that failure to exhaust union

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remedies should be raised in an early summary judgment motion at the outset of litigation, rather

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than in an “unenumerated Rule 12(b)” motion, TWU styled its motion as a motion for summary

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judgment for failure to exhaust; or alternatively, to dismiss for failure to state a claim. See

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Albino v. Baca, -- F.3d --, 2014 WL 1317141, *4, 6-7 (9th Cir. Apr. 3, 2014) (en banc);

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On May 12, 2014, the Court set a Case Management Conference for May 30, 2014 (Dkt.
51);

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On May 22, 2014, to accommodate discovery requested by Plaintiffs with respect to

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TWU’s exhaustion defense, the Parties filed a stipulation to continue the Case Management

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Conference to June 20, 2014, to extend the briefing schedule on TWU’s motion, and to continue

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the motion hearing to September 4, 2014 (Dkt. 54);

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On May 23, 2014, the Court granted the Parties’ stipulation as modified, setting the Case

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Management Conference for July 11, 2014, adopting the requested briefing schedule, and setting

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the hearing on TWU’s motion for September 4, 2014 (Dkt. 56);

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No other deadlines have yet been set in this case;

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On May 27, 2014, counsel for Defendant informed counsel for Plaintiffs that lead counsel

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Stephen Berzon would be out of the country on July 11, 2014, and requested that Plaintiffs

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stipulate to continue the Case Management Conference to Friday, August 1, 2014, at 10:30 a.m.

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Counsel for Plaintiffs responded that Plaintiffs would not oppose a motion to continue the

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conference to that date;

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On June 9, 2014, after learning of changes in Judge Chhabria’s schedule, counsel for

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UNOPPOSED MOTION TO CONTINUE CASE MANAGEMENT CONFERENCE
AND [PROPOSED] ORDER
Case No. 13-CV-5566-VC

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Defendant requested that Plaintiffs stipulate to continue the Case Management Conference to

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Tuesday, August 12, 2014, at 10 a.m. Counsel for Plaintiffs responded that Plaintiffs would not

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oppose a motion to continue the conference to that date.

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Hence, pursuant to Civil Local Rule 6-3(a), and in the interests of effective and efficient

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case management, Defendant TWU respectfully requests that the Court continue the Case

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Management Conference currently set for July 11, 2014, to August 12, 2014 at 10 a.m.

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Dated: June 10, 2014

STEPHEN P. BERZON (SBN 46540)
CONNIE K. CHAN (SBN 284230)
ALTSHULER BERZON LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
RICHARD EDELMAN (pro hac vice application
forthcoming)
O'DONNELL, SCHWARTZ & ANDERSON, P.C.
1300 L Street, N.W.
Suite 1200
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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by: /s/ Stephen P. Berzon_________
Stephen P. Berzon

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Attorneys for Defendant

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UNOPPOSED MOTION TO CONTINUE CASE MANAGEMENT CONFERENCE
AND [PROPOSED] ORDER
Case No. 13-CV-5566-VC

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DECLARATION OF STEPHEN P. BERZON IN SUPPORT OF MOTION

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I, Stephen P. Berzon, declare as follows:

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1.

I am a member in good standing of the bar of the State of California and am an

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attorney for Defendant TWU in the above-captioned case. I make this declaration in support of

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Defendant TWU’s opposed motion to continue the case management conference currently set for

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July 11, 2014. The facts set forth in this declaration I know to be true of my own personal

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knowledge.

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2.

I am lead counsel for TWU on this case, and I have full authority to make

decisions about any issue that may come up during a case management conference.
3.

I have a long-standing commitment that requires me to travel out of the country

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on July 11, 2014. I have airline tickets for July 11, 2014, and I will be unavailable due this pre-

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arranged commitment from July 11, 2014 to July 29, 2014.

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4.

Pursuant to Civil Local Rule 6-1(a), the Parties previously stipulated to extend the

time within which Defendant must file a responsive pleading to January 27, 2014.
5.

On January 23, 2014, this case was reassigned to Judge William H. Orrick. In

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light of the reassignment of this matter, the Parties agreed to extend the time within which

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Defendant must file a responsive pleading to February 18, 2014.

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6.

On February 18, 2014, TWU filed a motion to dismiss Plaintiffs’ original

complaint for failure to exhaust internal union remedies and failure to state a claim (Dkt. 18).
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The Parties stipulated to allow Plaintiffs to file an amended complaint to add as a

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named plaintiff Thomas Powell and to incorporate allegations from his complaint originally filed

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in the Northern District of Texas in the action styled Powell v. TWU et al., Case No. 3:14-cv-

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00375-G (N.D. Tex.), and to a briefing schedule on any amended motion to dismiss by TWU.

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8.

At a case management conference on March 18, 2014, the Court (Judge Orrick)

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adopted the parties’ agreed upon briefing schedule for Defendant’s motion to dismiss the First

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Amended Complaint as follows: motion to dismiss due April 30, 2014; opposition due June 11,

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2014; reply due July 9, 2014; and motion hearing set for August 27, 2014 at 2:00 p.m. (Dkt. 31).

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On April 17, 2014, this case was reassigned to Judge Vince Chhabria.

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UNOPPOSED MOTION TO CONTINUE CASE MANAGEMENT CONFERENCE
AND [PROPOSED] ORDER
Case No. 13-CV-5566-VC

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10.

On April 30, 2014, TWU filed its response to Plaintiffs’ First Amended

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Complaint (Dkt. 47). Due to an intervening Ninth Circuit en banc decision, holding that failure

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to exhaust union remedies should be raised in an early summary judgment motion at the outset of

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litigation, rather than in an “unenumerated Rule 12(b)” motion, TWU styled its motion as a

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motion for summary judgment for failure to exhaust; or alternatively, to dismiss for failure to

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state a claim. See Albino v. Baca, -- F.3d --, 2014 WL 1317141, *4, 6-7 (9th Cir. Apr. 3, 2014)

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(en banc).

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11.

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On May 12, 2014, the Court set a Case Management Conference for May 30,

2014 (Dkt. 51).
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On May 22, 2014, to accommodate discovery requested by Plaintiffs with respect

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to TWU’s exhaustion defense, the Parties filed a stipulation to continue the Case Management

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Conference to June 20, 2014, to extend the brief schedule on TWU’s motion, and to continue the

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motion hearing to September 4, 2014 (Dkt. 54).

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13.

On May 23, 2014, the Court granted the Parties’ stipulation as modified, setting

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the Case Management Conference for Friday, July 11, 2014, adopting the requested briefing

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schedule, and setting the hearing on TWU’s motion for September 4, 2014 (Dkt. 56).

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14.

No other deadlines have yet been set in this case.

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15.

On May 27, 2014, Laura Trice, an attorney at my firm who is working on this

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case, informed Plaintiffs’ counsel Amy Tabor that I would be out of the country on July 11,

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2014, and requested that Plaintiffs stipulate to continue the Case Management Conference to

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August 1, 2014. Counsel for Plaintiffs responded that Plaintiffs would not oppose a motion to

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continue the conference to that date.

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On June 5, 2014, Ms. Trice called Judge Chhabria’s Calendar Clerk to confirm

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that Friday, August 1, 2014 was an available date for case management conferences. Ms. Trice

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was informed that as of July 2014, Judge Chhabria would begin holding case management

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conferences on Tuesdays at 10 a.m., and that August 5 and 12, 2014 were available dates.

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17.

On June 6, 2014, Ms. Trice informed Plaintiffs’ counsel Amy Tabor of the change

in case management conference dates and requested that Plaintiffs stipulate to continue the Case

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UNOPPOSED MOTION TO CONTINUE CASE MANAGEMENT CONFERENCE
AND [PROPOSED] ORDER
Case No. 13-CV-5566-VC

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Management Conference to Tuesday, August 5, 2014, at 10 a.m. Counsel for Plaintiffs

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responded that Plaintiffs would not oppose a motion to continue the conference to that date.

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On June 9, 2014, due to an intervening matter requiring that I travel out of the

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state on August 5, 2014, Ms. Trice requested that Plaintiffs stipulate, or agree not to oppose a

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motion, to continue the Case Management Conference to Tuesday, August 12, 2014, at 10 a.m.

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Counsel for Plaintiffs responded that Plaintiffs would not oppose a motion to continue the

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conference to that date.

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19.

In light of Defendant TWU’s pending motion for dismiss, which is currently set

for hearing on September 4, 2014, and the absence of other scheduled deadlines, continuing the
Case Management Conference will not affect the schedule for this case.
I declare under penalty of perjury that the foregoing is true and correct to the best of my
knowledge. Executed at San Francisco, California, on June 10, 2014.

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by: /s/ Stephen P. Berzon_________
Stephen P. Berzon

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UNOPPOSED MOTION TO CONTINUE CASE MANAGEMENT CONFERENCE
AND [PROPOSED] ORDER
Case No. 13-CV-5566-VC

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[PROPOSED] MODIFIED ORDER
For good cause shown, the Court hereby grants Defendant TWU’s unopposed motion to

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continue the Case Management Conference. The Case Management Conference currently set for

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July 11, 2014, and the Motion for Summary Judgment are rescheduled to September 18, 2014, at

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10:00 a.m.

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IT IS SO ORDERED.

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Dated: June 12, 2014

______________________________
The Honorable Vince Chhabria
United States District Judge

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UNOPPOSED MOTION TO CONTINUE CASE MANAGEMENT CONFERENCE
AND [PROPOSED] ORDER
Case No. 13-CV-5566-VC