PNY TECHNOLOGIES, INC. v. MILLER, KAPLAN, ARASE & CO., LLP

Filing 122

ORDER AFFORDING PLAINTIFF LEAVE TO FILE SURREPLY; CONTINUING HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; CONTINUING STATUS CONFERENCE. Plaintiff is afforded leave to file, no later than July 1, 2016, a surreply. The hearing on def endant's motion for summary judgment is continued from June 24, 2016, to July 22, 2016, at 9:00 a.m. The Status Conference is continued from July 15, 2016, to August 12, 2016, at 10:30 a.m.; a Joint Case Management Statement shall be filed no later than August 5, 2016. Signed by Judge Maxine M. Chesney on June 20, 2016. (mmclc1, COURT STAFF) (Filed on 6/20/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PNY TECHNOLOGIES, INC.,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 15-cv-01728-MMC

v.
MILLER, KAPLAN, ARASE & CO, LLP,
Defendant.

ORDER AFFORDING PLAINTIFF
LEAVE TO FILE SURREPLY;
CONTINUING HEARING ON
DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT; CONTINUING
STATUS CONFERENCE

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Before the Court is defendant's "Motion for Summary Judgment or, in the

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Alternative, Partial Summary Judgment," filed February 26, 2016. Plaintiff has filed

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opposition, to which defendant has replied. Having read and considered the papers filed

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in support of and in opposition to the motion, the Court finds it appropriate, for the

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reasons set forth below, to afford plaintiff leave to file a surreply, limited to two issues.

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First, the sole ground raised by defendant in its moving papers is that each of the

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five counts in plaintiff's complaint is barred by the statute of limitations. In its reply,

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however, defendant raises an additional argument, specifically, that it is entitled to

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summary judgment on Count One, by which plaintiff alleges defendant breached a non-

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disclosure agreement ("NDA"), for the asserted reason that plaintiff has "waived and

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released any claim for damages for breach of the NDA." (See Def.'s Reply at 6:28-7:1;

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see also Def.'s Reply at 12:19-21.) The Court finds it appropriate to afford plaintiff leave

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to file a surreply to address defendant's waiver/release argument, as such argument was

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raised for the first time in defendant's reply.

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Second, in support of its opposition, plaintiff filed, inter alia, a declaration by Mark
Ciano and a declaration by Heidi Stuto. In its reply, defendant asserts that certain

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statements set forth in the above-referenced declarations are contradicted by deposition

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testimony provided by each of the declarants. Although a party may not "create his own

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issue of fact by an affidavit contradicting his prior deposition testimony, the non-moving

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party is not precluded from elaborating upon, explaining or clarifying prior testimony

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elicited by opposing counsel on deposition." See Messick v. Horizon Industries Inc., 62

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F.3d 1227, 1231 (9th Cir. 1995) (internal quotation and citation omitted). Here, as

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defendant, in its moving papers, did not rely on the subject deposition testimony, 1 the

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Court finds it appropriate to afford plaintiff leave to address the issue of whether any

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conflict exists and, if so, to explain such conflict.
Accordingly, plaintiff is hereby afforded leave to file, no later than July 1, 2016, a

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United States District Court
Northern District of California

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surreply, limited to seven pages in length, to address the two issues addressed above.

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In light thereof, the hearing on defendant's motion is hereby CONTINUED from
June 24, 2016, to July 22, 2016, at 9:00 a.m.
Additionally, the Status Conference is hereby CONTINUED from July 15, 2016, to

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August 12, 2016, at 10:30 a.m. A Joint Case Management Statement shall be filed no

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later than August 5, 2016.

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IT IS SO ORDERED.

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Dated: June 20, 2016
MAXINE M. CHESNEY
United States District Judge

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Defendant could not have offered the subject deposition testimony with its moving
papers, as the two declarants were deposed after defendant filed its moving papers.
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