FreecycleSunnyvale v. The Freecycle Network

Filing 55

STIPULATION Request for Order Changing Time Under Civil L.R. 6-2 by FreecycleSunnyvale. (Corgill, Dennis) (Filed on 10/2/2006)

Case 4:06-cv-00324-CW

Document 55

Filed 10/02/2006

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Ian N. Feinberg (SBN 88324) [e-mail] Dennis S. Corgill (SBN 103429) [e-mail] Eric B. Evans (SBN 232476) [e-mail] MAYER, BROWN, ROWE & MAW LLP Two Palo Alto Square, Suite 300 3000 El Camino Real Palo Alto, CA 94306-2112 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff FREECYCLESUNNYVALE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

FREECYCLESUNNYVALE, a California unincorporated association, Plaintiff, v. THE FREECYCLE NETWORK, an Arizona corporation, Defendant. THE FREECYCLE NETWORK, INC., an Arizona Corporation, Counterclaimant, v. FREECYCLESUNNYVALE, a California unincorporated association, Counterdefendant.

CASE NO. C06-00324 CW

STIPULATED REQUEST FOR ORDER CHANGING TIME UNDER CIVIL L.R. 6-2

Before: Honorable Claudia Wilken

STIPULATED REQUEST FOR ORDER CHANGING TIME CASE NO. C06-00324 CW

Case 4:06-cv-00324-CW

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PURSUANT TO CIVIL L.R. 6-2, Plaintiff FreecycleSunnyvale and Defendant The Freecycle Network, Inc., respectfully request this Court to enter an order changing time. I. INTRODUCTION The above-captioned lawsuit concerns The Freecycle Network's claim of trademark rights over the term "freecycle" and a stylized logo depicting that term. FreecycleSunnyvale seeks a declaration of non-infringement or, in the alternative, that the alleged trademarks are generic or that The Freecycle Network has engaged in naked licensing. The Freecycle Network filed counterclaims, alleging trademark infringement, contributory infringement, and unfair competition under the Lanham Act, as well as California state-law claims for unfair competition. Counsel for both parties appear pro bono. Not yet resolved are FreecycleSunnyvale's Motions to Dismiss Amended Counterclaims under FED.R.CIV.P. 12(b)(6), to Strike State-Law Counterclaim under Cal.Civ.Proc. § 425.16, and to Strike Immaterial Allegations under FED.R.CIV.P. 12(f). Those motions are scheduled to be heard on October 6, 2006. Additionally, in a related case, the parties have agreed to participate in the Mediation Program of the Ninth Circuit. The parties are attempting to schedule the mediation in late November or early December. This Court's Case Management Order presently sets the fact discovery cutoff for November 1, 2006. See Order Changing Time (Docket # 44, filed August 1, 2006). For the following reasons, FreecycleSunnyvale and The Freecycle Network respectfully request (1) a continuance of the hearing on FreecycleSunnyvale's motions until December 15, 2006, at 10:00 a.m., and (2) a ninety (90) day extension of the fact discovery cutoff and all other deadlines in the Case Management Order. II. REASONS FOR THE REQUESTED ENLARGEMENT OF TIME First, the hearing on FreecycleSunnyvale's pending motions should be continued because the parties are scheduled to participate in court-ordered mediation. A related case was selected for inclusion in the Mediation Program of the United States Court of Appeals for the Ninth

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STIPULATED REQUEST FOR ORDER CHANGING TIME CASE NO. C06-00324 CW

Case 4:06-cv-00324-CW

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Circuit. The Ninth Circuit appeal was taken by Tim Oey from a preliminary injunction issued by the District of Arizona, against Mr. Oey, and in favor of The Freecycle Network.1 Tim Oey is the leading member of FreecycleSunnyvale, and he is authorized to represent FreecycleSunnyvale in the Ninth Circuit mediation. Mr. Oey, on behalf of himself and FreecycleSunnyvale, and The Freecycle Network indicated to the Circuit Mediator that they will attempt to reach a global settlement that will include the action in this Court. The parties are attempting to schedule the mediation in late November or early December. If the parties reach a settlement, this Court will not need to address FreecycleSunnyvale's pending motions to dismiss and strike, which are currently scheduled to come on for hearing before the mediation. Second, fact discovery should be extended because the issues that will be litigated before this Court have not yet been framed. The Freecycle Network filed its amended counterclaims on August 8, 2006. FreecycleSunnyvale filed its motions to dismiss and strike on August 28, 2006. The parties have briefed the motions, and the hearing is scheduled for October 6, 2006, just 26 days before the current fact discovery cutoff, which is set for November 1, 2006. Given the close proximity between the hearing and the fact discovery cutoff, FreecycleSunnyvale at best will answer the counterclaims (assuming those counterclaims survive the motions to dismiss and strike) on the eve of the fact discovery cutoff or, more likely, after the fact discovery cutoff. Third, the parties believe that additional discovery is necessary in this case. For example, the parties have scheduled depositions but have not yet completed their production of documents. Fourth, assuming that fact discovery will be extended, the other deadlines in this Court's Case Management Order should be similarly extended by ninety (90) days.

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The action in the District of Arizona is entitled, The Freecycle Network, Inc. v. Tim Oey and Jane Doe Oey, Case No. C06-00173 TUC-RCC (D. Ariz., filed Apr. 4, 2006). The Ninth Circuit Appeal bears docket number 06-16219. The District Court of Arizona stayed the action in that court pending the outcome of proceedings before this Court, but did not stay the preliminary injunction. The Ninth Circuit stayed the preliminary injunction pending resolution of the appeal, and the parties have just completed briefing on the appeal of the preliminary injunction. 2
STIPULATED REQUEST FOR ORDER CHANGING TIME CASE NO. C06-00324 CW

Case 4:06-cv-00324-CW

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III.

DISCLOSURE OF PREVIOUS TIME MODIFICATIONS The parties previously sought an order modifying time in this case. The parties filed a

stipulated request for an order changing time on July 26, 2006. This court granted that stipulated request and entered an order on August 1, 2006. IV. EFFECT OF THE TIME MODIFICATION ON THE SCHEDULE OF THE CASE The parties attach a proposed order that (1) continues the hearing on FreecycleSunnyvale's motions to dismiss and strike until December 15, 2006, after the Ninth Circuit mediation and (2) revises this Court's Case Management Order by extending the fact discovery cutoff and all other deadlines by approximately ninety (90) days. The following table summarizes the proposed changes to the Case Management Order.

Deadline Current Cutoff Completion of Fact Discovery: 11/01/06 Disclosure of identities and reports of expert witnesses: Completion of Expert Discovery: Plaintiff to file dispositive motion and notice for hearing on 12/8/06 at 10:00 a.m.: Defendant opposition and any cross motion (contained in one brief): Plaintiff reply/opposition: Surreply: 12/01/06 01/29/07 01/29/07

Proposed Cutoff 02/02/07 03/02/07 03/30/07 03/30/07

02/12/07

04/13/07

02/20/07 02/27/07

04/20/07 04/27/07 05/11/07

03/16/07 Further Case Management Conference and all casedispositive motions to be heard at 10:00 a.m. on or before: Final Pretrial Conference at 1:30 p.m. on: [to be set] 3

[to be set]

STIPULATED REQUEST FOR ORDER CHANGING TIME CASE NO. C06-00324 CW

Case 4:06-cv-00324-CW

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Deadline A Trial will begin at 8:30 a.m. on:

Current Cutoff [to be set]

Proposed Cutoff [to be set]

The parties' proposed order will not affect the ADR process. On June 13, 2006, the parties engaged in court-connected mediation in the Northern District of California, which was conducted by William N. Herbert, Esquire. That mediation was unsuccessful in settling the lawsuit or narrowing the issues to be litigated. The parties are attempting to schedule a mediation in connection with the Mediation Program of the Ninth Circuit. V. CONCLUSION For the foregoing reasons, the parties respectfully request an order changing time that (1) continues the hearing on FreecycleSunnyvale's motions until November 3, 2006, and (2) grants a ninety (90) day extension of the fact discovery cutoff and all other deadlines in the Case Management Order. Dated: October 2, 2006 MAYER, BROWN, ROWE & MAW LLP IAN N. FEINBERG

DENNIS S. CORGILL ERIC B. EVANS
By: /s/ Dennis S. Corgill

Attorneys for Plaintiff FREECYCLESUNNYVALE Dated: October 2, 2006 PERKINS COIE LLP PAUL J. ANDRE LISA KOBIALKA ESHA BANDYOPADHYAY SEAN M. BOYLE By: /s/ Esha Bandyopadhyay

Attorneys for Defendant THE FREECYCLE NETWORK, INC.

44030002.1

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STIPULATED REQUEST FOR ORDER CHANGING TIME CASE NO. C06-00324 CW