Apple Computer, Inc. v. Podfitness, Inc.

Filing 100

STIPULATION AND ORDER RE: CASE MANAGEMENT SCHEDULING ORDER: Motions due by 9/23/2008. Pretrial Conference set for 11/18/2008 01:00 PM. Discovery due by 5/23/2008. Jury Trial set for 12/1/2008 08:30 AM.. Signed by Judge ARMSTRONG on 1/10/08. (lrc, COURT STAFF) (Filed on 1/10/2008)

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Apple Computer, Inc. v. Podfitness, Inc. Doc. 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 David J. Miclean (#115098/miclean@fr.com) FISH & RICHARDSON P.C. 500 Arguello Street, Suite 500 Redwood City, California 94063 Telephone: (650) 839-5070 Facsimile: (650) 839-5071 Lisa M. Martens (#195824/martens@fr.com) Andrew M. Abrams (#229698/abrams@fr.com) FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, California 92130 Telephone: (858) 678-5070 Facsimile: (858) 678-5099 Attorneys for Plaintiff and Counterclaim Defendant APPLE INC. James M. Wagstaffe Kerr & Wagstaffe LLP 100 Spear Street, Suite 1800 San Francisco, CA 94105-1528 Telephone: (415) 371-8500 Facsimile: (415) 371-0500 James E. Magleby Jason A. McNeill Magleby & Greenwood, P.C. 170 South Main Street, Suite 350 Salt Lake City, UT 84101-3606 Telephone: (801) 359-9000 Facsimile: (801) 359-9011 Attorneys for Defendants and Counterclaim Plaintiff Podfitness, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION) APPLE INC., Plaintiff, v. PODFITNESS, INC., and DOES 1-100, inclusive, Defendants. PODFITNESS, INC., Counterclaim Plaintiff v. APPLE INC., Counterclaim Defendant Case No. C 06-5805 SBA STIPULATED REQUEST FOR ORDER CHANGING TIME Honorable Saundra B. Armstrong 1 STIPULATED REQUEST FOR ORDER CHANGING TIME Case No. C 06-5805 SBA Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Local Rule 6-2, Plaintiff and Counterclaim Defendant Apple Inc. ("Apple") and Defendant and Counterclaim Plaintiff Podfitness, Inc. ("Podfitness") file this stipulation requesting an enlargement of the schedule in this case. In support of this stipulation, the parties submit the declaration of James E. Magleby, counsel for Podfitness, which sets forth the facts that necessitated the requested enlargement. The parties believe good cause for the enlargement exists for the following reasons. A. FILING OF AMENDED COMPLAINT AND COUNTERCLAIM Since the Court's January 25, 2007 Order for Pretrial Preparation setting forth the original trial schedule, the scope of this matter has expanded. On August 1, 2007, Apple filed an amended complaint adding causes of action for cybersquatting and for breach of contract. Magleby Decl., 2. Apple's amendment arose from new information uncovered during the discovery process. Id. Podfitness answered the amended complaint on August 31, 2007, and counterclaimed, alleging intentional and negligent interference with contractual relations, negligent interference with prospective economic advantage, and unlawful, unfair and deceptive practices in violation of the California Business and Professions Code. Podfitness' counterclaims arose from conduct which purportedly occurred during the discovery process, and after the scheduling order had been put into place. Magleby Decl., 3. Both Apple's new claims and Podfitness' new counterclaims invoke the need for additional discovery. Further, pursuant to Podfitness' efforts to obtain new counsel and the courts order staying this action, discovery has not gone forward for several months. B. WITHDRAWAL OF PODFITNESS' COUNSEL AND STAY OF THE PROCEEDINGS On September 19, 2007, Podfitness' outside counsel, Workman Nydegger, filed its motion to withdraw as counsel. Subsequently, on October 16, 2007, in-house counsel for Podfitness, Steve Hutchinson, filed notice with the Court that he was no longer employed with Podfitness. Magleby Decl., 4. On October 31, 2007, the Court permitted a withdrawal of outside counsel and ordered a temporary stay of the case for thirty (30) days pending Podfitness' engagement of substitute counsel. Id. Podfitness retained Magleby & Greenwood, P.C. as new outside counsel 2 STIPULATED REQUEST FOR ORDER CHANGING TIME Case No. C 06-5805 SBA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on November 30, 2007, and retained local California counsel, Kerr & Wagstaffe, LLP on December 6, 2007. Magleby Decl., 5. During this time, in the months of August, September, October and November 2007, the parties participated in numerous settlement negotiations. Magleby Decl., 6. Ultimately, the parties did not succeed in reaching a settlement. Id. As such, the parties now must reschedule the discovery activities that were postponed during the stay of the action. Further, new counsel for Podfitness requires additional time to review Apple's document production and propound additional discovery. D. PROPOSED SCHEDULE WITH EXTENDED DEADLINES To allow the parties adequate time to complete discovery and prepare for trial, the parties have stipulated and agreed to the following schedule: Fact discovery closes Last day to designate experts and to submits reports on those issues the party bears the burden of proof Last day to serve rebuttal expert reports Expert discovery closes Deadline for dispositive motions to be filed Deadline for dispositive motions to be heard Mandatory Settlement conference before a Magistrate Judge Filing of pretrial preparation due Motions in Limine and Objections to Evidence due Responses to Motions in Limine and Objections due Pretrial conference Jury trial begins May 23, 2008 June 17, 2008 July 25, 2008 August 22, 2008 August 19, 2008 September 23, 2008 September 24 to October 24, 2008 October 28, 2008 November 4, 2008 November11, 2008 November 18, 2008 at 1:00 p.m. December 1, 2008 at 8:30 a.m. for 5 days 3 STIPULATED REQUEST FOR ORDER CHANGING TIME Case No. C 06-5805 SBA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 There have been no prior modifications to the schedule set forth in the Court's January 25, 2007 Order. Magleby Decl., 7. The requested time modification would re-set the entire schedule for this case, and the parties would be prepared to try the case on December 1, 2008. Id. Based on the foregoing, the parties respectfully request that the Court grant the parties stipulated request. Dated: January 10, 2008 FISH & RICHARDSON P.C. By: /s/ David J. Miclean David J. Miclean Attorneys for Plaintiff and Counterclaim Defendant APPLE INC. Dated: January 10, 2008 MAGLEBY & GREENWOOD, P.C. By: /s/ James E. Magleby James E. Magleby Attorneys for Defendants and Counterclaim Plaintiff PODFITNESS, INC. DECLARATION OF CONSENT Pursuant to General Order No. 45, Section X(B) regarding signatures, I attest under penalty of perjury that concurrence in the filing of this document has been obtained from James E. Magleby. Dated: January 10, 2008 FISH & RICHARDSON P.C. By: /s/ David J. Miclean David J. Miclean Attorneys for Plaintiff and Counterclaim Defendant APPLE INC. 4 STIPULATED REQUEST FOR ORDER CHANGING TIME Case No. C 06-5805 SBA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PURSUANT TO STIPULATION, IT IS SO ORDERED: Dated: 1/10/08 United States District Judge 5 STIPULATED REQUEST FOR ORDER CHANGING TIME Case No. C 06-5805 SBA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 X PROOF OF SERVICE I am employed in the County of San Diego. My business address is Fish & Richardson P.C., 12390 El Camino Real, San Diego, California 92130. I am over the age of 18 and not a party to the foregoing action. I am readily familiar with the business practice at my place of business for collection and processing of correspondence for personal delivery, for mailing with United States Postal Service, for facsimile, and for overnight delivery by Federal Express, Express Mail, or other overnight service. On January 10, 2008, I caused a copy of the following document(s): STIPULATED REQUEST FOR ORDER CHANGING TIME to be served on the interested parties in this action by placing a true and correct copy thereof, enclosed in a sealed envelope, and addressed as follows: James M. Wagstaffe Kerr & Wagstaffe LLP 100 Spear Street, Suite 1800 San Francisco, CA 94105-1528 Telephone: (415) 371-8500 Facsimile: (415) 371-0500 James E. Magleby Jason A. McNeill Magleby & Greenwood, P.C. 170 South Main Street, Suite 350 Salt Lake City, UT 84101-3606 Telephone: (801) 359-9000 Facsimile: (801) 359-9011 MAIL: Attorneys For Defendant PODFITNESS, INC. Attorneys For Defendant PODFITNESS, INC. Such correspondence was deposited, postage fully paid, with the United States Postal Service on the same day in the ordinary course of business. Such document was transmitted by electronic mail to the addressees' email addresses as stated above. ELECTRONIC MAIL: I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. I declare under penalty of perjury that the above is true and correct. Executed on January 10, 2008, at San Diego, California. /s/Nicole C. Pino Nicole C. Pino 6 STIPULATED REQUEST FOR ORDER CHANGING TIME Case No. C 06-5805 SBA

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