E & E Co., Ltd. v. Light In The Box Limited

Filing 76

STIPULATION AND ORDER re 75 STIPULATION WITH PROPOSED ORDER re 72 MOTION to Dismiss the Second Amended Complaint EXTENDING TIME FOR DEFENDANT TO FILE REPLY filed by Light In The Box Limited. Signed by Judge Edward M. Chen on 1/19/16. (bpf, COURT STAFF) (Filed on 1/19/2016)

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Harrison J. Frahn IV (Bar No. 206822)
[e-mail]
SIMPSON THACHER & BARTLETT LLP
2475 Hanover Street
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]

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Attorney for Defendant Light In The Box Limited

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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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E & E CO., LTD., a California corporation,
Plaintiff,

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vs.

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LIGHT IN THE BOX LIMITED, a Hong
Kong corporation,

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Defendant.

Case No. 3:15-CV-00069-EMC
Judge Edward M. Chen
STIPULATED REQUEST AND
[PROPOSED] ORDER EXTENDING
TIME FOR DEFENDANT TO FILE
REPLY IN SUPPORT OF MOTION TO
DISMISS THE SECOND AMENDED
COMPLAINT

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Plaintiff E & E Co., Ltd., (“Plaintiff” or “E&E”) and Defendant Light In The Box

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Limited (“Defendant” or “LITB”) (collectively, the “Parties”), hereby stipulate to a one week

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extension of the deadline for Defendant to file and serve its Reply in Support of the Motion to

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Dismiss from January 19, 2016 to January 26, 2016. The Parties’ stipulation is based on the

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following facts:

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1.

Plaintiff E&E filed a Second Amended Complaint (“SAC”) in the above captioned

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case against Defendant LITB on October 14, 2015 (Dkt. No. 60) asserting claims for

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(1) Copyright Infringement; (2) False Designation of Origin and False Advertising (15 U.S.C. §

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1125(a)); and (3) California Unfair Competition (“UCL Claim”);

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2.

Defendant LITB filed a motion to dismiss E&E’s claims for False Advertising and

the UCL Claim on December 28, 2015 (Dkt. No. 72). With respect to the UCL Claim, LITB
STIPULATED REQUEST RE: MOTION TO DISMISS SAC

CASE NO. 3:15-CV-00069-EMC

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argued that the SAC’s failure to identify the prong or prongs of the California Business and

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Professions Code being invoked, as well as the specific acts forming the basis of the alleged

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violation, is insufficient to satisfy the notice requirements of Rule 8;

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3.

Plaintiff E&E filed an Opposition to LITB’s Motion to Dismiss the SAC on

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January 11, 2016 (Dkt. No. 74). In its Opposition, E&E expressed a willingness to dismiss its

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claim for False Advertising, but maintains that the UCL Claim was sufficiently pled. To resolve

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any doubt, E&E expressed a willingness to further amend the SAC to identify the specific prongs

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and acts forming the basis of the UCL Claim;

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4.

In light of E&E’s expressed willingness to amend the SAC with respect to both the

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False Advertising claim and the UCL Claim, LITB offered to stipulate to such an amendment.

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E&E requested that LITB identify any further perceived deficiencies in the proposed draft “Third

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Amended Complaint” attached to E&E’s Opposition as Exhibit A (“Opp. Ex. A”) (Dkt. No. 74-1).

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LITB has requested a one week extension to consider whether E&E’s proposed amendment, Opp.

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Ex. A, should be subject to a further motion to dismiss under Fed. R. Civ. P. 12(b)(6). If LITB

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decides not to challenge the proposed amended complaint under Fed. R. Civ. P. 12(b)(6), it has

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agreed to withdraw the pending Motion to Dismiss the SAC, enter into a stipulation permitting

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E&E to file a Third Amended Complaint as proposed in Opp. Ex. A, and has further agreed that it

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will not file any further motion to dismiss the contemplated Third Amended Complaint under Fed.

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R. Civ. P. 12(b)(6). If LITB still believes that the proposed document in Opp. Ex. A contains

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pleading deficiencies, LITB has agreed that it will notify E&E of the alleged deficiencies in

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advance of stipulating to an amendment of the pleadings, in order to provide E&E with the

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opportunity to consider whether it needs to cure any such alleged deficiency. As such, the Parties

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request more time to evaluate that course of action before expending any further Party or Court

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time and expense litigating the present motion;

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5.

The Parties submit that the requested extension will have no effect on the scheduled

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date for the Hearing on the Motion to Dismiss the Second Amended Complaint, currently set for

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February 11, 2016;

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-2STIPULATED REQUEST RE: MOTION TO DISMISS SAC

CASE NO. 3:15-CV-00069-EMC

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The Parties submit that this agreement was made in the spirit of conserving judicial

resources and is in the best interests of the Parties.
The Parties, therefore, respectfully request that the deadline for Defendant to file

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and serve its Reply in Support of the Motion to Dismiss be reset from January 19, 2016, to

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January 26, 2016.

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Dated: January 19, 2016

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SIMPSON THACHER & BARTLETT LLP
By: /s/ Harrison J. Frahn IV
Harrison J. Frahn IV
[e-mail]

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Attorney for Defendant, Light In The Box Limited

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FOX ROTHSCHILD LLP
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By: /s/ John Shaeffer
John Shaeffer
[e-mail]
Ashe Puri
[e-mail]

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Attorneys for Plaintiff, E & E CO., LTD.

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Attestation: Pursuant to Civil Local Rule 5-1(i)(3), the filer attests that concurrence in the filing
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of this document has been obtained from the signatories to this document.
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-3STIPULATED REQUEST RE: MOTION TO DISMISS SAC

CASE NO. 3:15-CV-00069-EMC

[PROPOSED] ORDER

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Pursuant to the Parties’ stipulation and for good cause shown, IT IS HEREBY

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ORDERED that:

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1.

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The deadline for Defendant Light In The Box Limited to file and serve its Reply in

Support of the Motion to Dismiss the Second Amended Complaint shall be reset from January 19,
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2016, to January 26, 2016.
Pursuant to Stipulation, IT IS SO ORDERED.

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_________________________________
S DISTRICT
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Edward M. Chen,
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United States District Judge

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Dated: January ___, 2016

UNIT
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[PROPOSED] ORDER FOR STIPULATED REQUEST RE: MOTION TO DISMISS SAC

CASE NO. 3:15-CV-00069-EMC