Automated Media Processing Solutions, Inc., dba Equilibrium

Filing 12

ORDER, Motions terminated: 11 MOTION to Continue Case Management Conference and Scheduling Order filed by Automated Media Processing Solutions, Inc.. Initial Case Management Conference set for 3/18/2016 02:30 PM in Courtroom 1, 17th Floor, San Francisco.. Signed by Judge Susan Illston on 2/19/16. (tfS, COURT STAFF) (Filed on 2/19/2016)

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Michael T. Welch (#122630)
LAW OFFICES OF MICHAEL T. WELCH
Four Embarcadero Center, 39th Floor
San Francisco, California 94111
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Plaintiff
AUTOMATED MEDIA PROCESSING SOLUTIONS, INC.,
dba EQUILIBRIUM

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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AUTOMATED MEDIA PROCESSING
SOLUTIONS, INC., dba EQUILIBRIUM, a
corporation,

)
)
)
)
)
)
)
)
)
)
)
)
)
)

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Plaintiff,
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v.
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SCHAWK DIGITAL SOLUTIONS, INC., a
business entity; BLUE SOFTWARE, LLC, a
business entity,

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Defendants.
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CASE NO. 15-cv-05018 SI
EX PARTE APPLICATION FOR
CONTINUANCE OF CASE
MANAGEMENT CONFERENCE AND
SCHEDULING ORDER

Date: February 19, 2016
Time: 2:30 PM
Dept.: Courtroom 1

______________________________________
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I. APPLICATION AND GROUNDS
Plaintiff AUTOMATED MEDIA PROCESSING SOLUTIONS, INC., dba

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EQUILIBRIUM (“EQUILIBRIUM”) respectfully requests that the Court continue the Case
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Management Conference presently scheduled for February 19, 2016, for a reasonable
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period of approximately three weeks. The reasons, as set forth further in the attached
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declaration of Michael Welch, counsel for plaintiff, are as follows. First and most
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significant is that plaintiff’s counsel has not received any notices or documents from the
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-1EX PARTE APPLICATION FOR CONTINUANCE OF CASE MANAGEMENT CONFERENCE AND
SCHEDULING ORDER

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District Court regarding this case due to a never before experienced problem apparently

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related to the e-mail address of record where said counsel has previously received and sent

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documents under the Court’s “ECF” system for approximately 10 years. It was first

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brought to counsel’s attention approximately 2 weeks ago and plaintiff’s counsel though he

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had corrected it (by using the ECF on-line “help” system to change the e-mail address), but

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it failed as the notice of the current Case Management Conference and scheduling order

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was not received, and counsel was alerted to it only by a call from the Court’s clerk

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yesterday. This is in the process of being corrected (hopefully more effectively) with an

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outside consultant with the assistance of information and resources provided by the “ECF”

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support group, and in the meantime this case’s docket is being monitored once per day for

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any further notices or documents that may be filed or sent to counsel.

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The second reason is that the defendants were just served with the summons and

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complaint, so have not yet had the opportunity to respond and appear. Plaintiff’s counsel

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filed this case in early November, 2015, and calendared the last dates, and also planned

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dates and deadlines, for service of summons and complaint, based on Fed. Rule of Civ.

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Proc. 4(m) at the time, which provided for 120 days to effect service (as had been the rule

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for the 30 years of this counsel’s practice). The intent was not to wait until the last day

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(i.e., solely for maximizing the time of service), but to allow for the anticipation that

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additional events would occur in or by February that would likely require amending the

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complaint to add or revise one or more claims. However, upon becoming aware of both

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the newly scheduled Case Management Conference (through telephone follow-up by the

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Court’s clerk) and the recent revisions to the Federal Rules after this action was filed that

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reduce the time for service, plaintiff’s counsel immediately effected service on the two

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defendants. To the extent that plaintiff needs to amend the current complaint in the near

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future, it will do so through normal amendment procedures (i.e., by stipulation or motion).

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Based on the above-stated lack of actual notice received by plaintiff’s counsel of

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the currently scheduled Case Management Conference, and the need for some additional

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-2EX PARTE APPLICATION FOR CONTINUANCE OF CASE MANAGEMENT CONFERENCE AND
SCHEDULING ORDER

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time to consult with counsel for the newly served defendants to prepare the requisite

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Scheduling Order (and their appearances), plaintiff respectfully requests that the Court

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grant this Application for Continuance and issue an order setting a new date for the Case

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Management Conference and scheduling order.

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Respectfully submitted,

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LAW OFFICES OF MICHAEL T. WELCH

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By:__/S/ Michael Welch
Michael T. Welch
Attorney for Plaintiff
AUTOMATED MEDIA PROCESSING
SOLUTIONS, INC., dba EQUILIBRIUM

Dated: February 18, 2016
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ER

an Illsto

R NIA

us
Judge S

H

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RT

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NO

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ERED

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LI

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O ORD
IT IS S

A

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UNIT
ED

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RT
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S

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S DISTRICT
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The Initial Case Management Conference has
been continued to Friday, March 18, 2016 at
2:30 p.m.
The Joint Case Management Conference Statement
shall be filed on March 11, 2016.

N

F
D IS T IC T O
R

C

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-3EX PARTE APPLICATION FOR CONTINUANCE OF CASE MANAGEMENT CONFERENCE AND
SCHEDULING ORDER

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Michael T. Welch (#122630)
LAW OFFICES OF MICHAEL T. WELCH
Four Embarcadero Center, 39th Floor
San Francisco, California 94111
Telephone:
[phone]
Facsimile:
[phone]

4
5

Attorneys for Plaintiff
AUTOMATED MEDIA PROCESSING SOLUTIONS, INC.,
dba EQUILIBRIUM

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7
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
11
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AUTOMATED MEDIA PROCESSING
SOLUTIONS, INC., dba EQUILIBRIUM, a
corporation,

)
)
)
)
)
)
)
)
)
)
)
)
)
)

13
Plaintiff,
14
v.
15
16

SCHAWK DIGITAL SOLUTIONS, INC., a
business entity; BLUE SOFTWARE, LLC, a
business entity,

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Defendants.
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______________________________________

CASE NO. 15-cv-05018 SI
DECLARATION OF MICHAEL
WELCH IN SUPPORT EX PARTE
APPLICATION FOR CONTINUANCE
OF CASE MANAGEMENT
CONFERENCE AND SCHEDULING
ORDER

Date: February 19, 2016
Time: 2:30 PM
Dept.: Courtroom 1

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I, Michael Welch, declare as follows:
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1. I am an attorney duly admitted to practice in the State of California and in the
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U.S. District Court for the Northern District of California, and am the attorney for the
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plaintiff, AUTOMATED MEDIA PROCESSING SOLUTIONS, INC., dba
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EQUILIBRIUM (“EQUILIBRIUM”) in this action. I have personal knowledge of the facts
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stated in this Declaration.
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-1DECLARATION OF MICHAEL WELCH IN SUPPORT OF EX PARTE APPLICATION FOR
CONTINUANCE OF CASE MANAGEMENT CONFERENCE AND SCHEDULING ORDER

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2. I filed this action in early November, 2015. At that time, as is my practice, I

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calendared both the last date for service of the defendants under the Federal Rules, and the

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date by which my client and I anticipated serving defendants based on what was perceived

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as a likelihood of one or more events occurring regarding the contract claims in this action

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that might necessitate amending the complaint. At that time, Federal Rule of Civil

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Procedure 4 provided for the summons and complaint to be served within 120 days, so I

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calendared the final date for service as March 1, 2016, and the last date by which we would

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make service as February 22, 2016.

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3. Thereafter I did not receive any notices or documents regarding this case by e-

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mail under the Court’s “ECF” system, but as it was still relatively early in the case and the

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defendants had not been served, I was not anticipating any type of notice or document by

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any date certain. However, on approximately February 2 I was contacted by Ada Means,

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the clerk for Magistrate Judge Corley, who informed me of the deadline for filing a consent

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or declination to have the case heard before Judge Corley, and who told me she had

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attempted to e-mail me at the e-mail address listed on my “ECF” record, but that the e-mail

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had “bounced back” to her. I telephoned her and she also informed me of another Notice

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that had been sent to me regarding a scheduling order, which I had never received. At that

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point I ascertained that there was some type of problem with the e-mail address or system

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that served as my long-standing e-mail address in the “ECF” system, even after my normal

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office e-mail address was changed several years ago to the above “gmail” address, as e-

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mails sent to the former address were “bouncing back” and not being received by me on

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that system from the court (but that address was still receiving other e-mails, e.g., personal,

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business, “spam”, etc.).

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4. After receiving that information from Ms. Means, I promptly file a Notice of

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declination of having the case heard by the Magistrate Judge. I also personally went to the

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website of the Northern District and accessed the “ECF” system and its “help” sections that

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provided instructions on changing or adding an attorney’s website address on the system. I

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-2DECLARATION OF MICHAEL WELCH IN SUPPORT OF EX PARTE APPLICATION FOR
CONTINUANCE OF CASE MANAGEMENT CONFERENCE AND SCHEDULING ORDER

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followed the instructions and steps provided, and I believe and understood that I had

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successfully replaced my prior e-mail address (that appeared to be the cause of the “bounce

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back” problem) with my current and fully functional e-mail address

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([e-mail]). I assumed that the above problem had been corrected, and that

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I would receive any further notices or documents filed in the case at this e-mail address.

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5. Yesterday, February 17, I received a voice-mail message on my office telephone

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from Tracy, a clerk of this Court. I telephoned her back right after I listened to the

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message, and she told me she was calling to inquire of the status of the scheduling order

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that was due in advance of the Case Management Conference set for this Friday, February

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19. I did not receive a notice of either the Conference or the scheduling order at my e-mail

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address, i.e., my “gmail” address that I had recently made as the main address for receiving

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e-mails, and I informed Tracy of the problem described above that I had experienced, and

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that I thought I had successfully corrected it. She also asked me about the status of a proof

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or service on the defendants, and in the course of that discussion it came out that the Court

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had recently changed / updated many of its rules and procedures, including a reduction of

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the former 120 day service limit (which I subsequently confirmed by research of the

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revised rules). I stated that the defendants were due to be served shortly, and I then

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expedited that process so that both were served (by stipulation of counsel to accept service,

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for defendant Schawk Digital Solutions, and by personal service on the registered agent of

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defendant Blue Software, LLC, as of today, February 18. I intend to follow up with

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counsel for Schawk as soon as possible to discuss the items in the scheduling order and

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reach agreement on a joint scheduling order, and to do so with counsel for Blue Software

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as soon as I learn who that is.

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6. I also have asked my outside tech support vendor to assist me this time in going

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back to the ECF site, and to work with any support staff attached to that site, if necessary,

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to ensure that my proper e-mail address (my “gmail” account) is properly and fully

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installed and functional, which I understand will occur within the next several days. In the

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-3DECLARATION OF MICHAEL WELCH IN SUPPORT OF EX PARTE APPLICATION FOR
CONTINUANCE OF CASE MANAGEMENT CONFERENCE AND SCHEDULING ORDER

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meantime I am checking the docket myself for this case on a daily basis to make sure I

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know of any filings.

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I declare under penalty of perjury under the laws of California and the United States
that the foregoing is true and correct.

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Dated: February 18, 2016
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By:__/S/ Michael Welch
Michael T. Welch
Attorney for Plaintiff
AUTOMATED MEDIA PROCESSING
SOLUTIONS, INC., dba EQUILIBRIUM

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-4DECLARATION OF MICHAEL WELCH IN SUPPORT OF EX PARTE APPLICATION FOR
CONTINUANCE OF CASE MANAGEMENT CONFERENCE AND SCHEDULING ORDER