Keilholtz et al v. Superior Fireplace Company et al

Filing 144

STIPULATION AND ORDER Setting New Briefing and Hearing Schedule on Class Certification Motion re 142 Stipulation, filed by Kirk Keilholtz, Lennox Hearth Products, Inc., Kolleen Keilholtz, Lennox International Inc., Lennox Industries Inc. The 11/12/ 09 motion hearing date is VACATED.Plaintiffs file Motion 8/28/09; Defendants Opposition filed 10/12/09; Plaintiffs Reply filed 10/26/09 and Defendants Surreply filed 11/9/09.Plaintiffs Motion for Class Certification and Cross-Motion Hearing set for 12/3/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland.. Signed by Judge Claudia Wilken on 9/18/09. (fs, COURT STAFF) (Filed on 9/18/2009)

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

DOWNEY BRAND LLP WILLIAM R. WARNE (Bar No. 141280) MICHAEL J. THOMAS (Bar No. 172326) MEGHAN M. BAKER (Bar No. 243765) 621 Capitol Mall, 18th Floor Sacramento, CA 95814-4731 Telephone: [phone] Facsimile: [phone] [e-mail] m mt ho [e-mail] m [e-mail] m Attorneys for Defendants LENNOX HEARTH PRODUCTS INC.; LENNOX INTERNATIONAL INC.; LENNOX INDUSTRIES INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

KIRK KEILHOLTZ and KOLLEEN KEILHOLTZ for themselves and on behalf of those similarly situated, Plaint iffs, v. LENNOX HEARTH PRODUCTS INC.; LENNOX INTERNATIONAL INC.; LENNOX INDUSTRIES; and DOES 1 through 25, Inclusive, Defendants.

Case No. 4:08-cv-00836-CW (JCS) STIPULATION AND [PROPOSED] ORDER SETTING NEW BRIEFING AND HEARING SCHEDULE ON CLASS CERTIFICATION MOTION

TO THE COURT AND ALL ATTORNEYS OF RECORD: By and through their counsel of record, Plaintiffs Kirk Keilholtz and Kolleen Keilholtz (collectively "Plaintiffs"), and Defendants Lennox Hearth Products Inc., Lennox International Inc. and Lennox Industries Inc. (collectively "Defendants") hereby stipulate to the following: 1. On July 9, 2009, the court issued a written order providing that any hearing on

class certification and subject matter jurisdiction issues would be conducted at 2:00 p.m. on Thursday, November 12, 2009. The court also set the following briefing schedule to address class certification and subject matter jurisdiction issues:
1028261.1

STIPULATION AND [PROPOSED] ORDER

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
1

Party Plaint iffs Defendants

Filing Motion for Class Certification Opposition to Motion for Class Certification and Cross-Motion Addressing Class Certification and Subject Matter Jurisdiction ("Cross-Motion") Reply in Support of Motion for Certification and Opposition to Cross-Motion Surreply

Deadline August 28, 2009 September 28, 2009

Plaint iffs Defendants 2.

October 12, 2009 October 26, 2009

Plaint iffs and Defendants have agreed, and hereby stipulate, to extend the briefing

schedule on the Motion for Class Certification and Cross-Motion by approximately two weeks, and to extend the hearing on these Motions by three weeks.1 Specifically, this st ipulat ion proposes that the court, subject to its availability, reschedule the hearing on the Motion for Class Certification and Cross-Motion for 2:00 p.m. on Thursday, December 3, 2009, and order the following revised briefing schedule: Party Plaint iffs Defendants Plaint iffs Defendants 3. Filing Motion for Class Certification Opposition to Motion for Class Certification and Cross-Motion Reply in Support of Motion for Certification and Opposition to Cross-Motion Surreply Deadline August 28, 2009 October 12, 2009 October 26, 2009 November 9, 2009

The parties agreed to this extension due to issues with deposit ion scheduling.

Specifically, back in mid-August, Defendants noticed the depositions of named Plaintiffs Kirk Keilholtz and Kolleen Keilholtz (collect ively "Keilholtzs"), as well as the depositions of putative class members Rich and Donna Perry (collectively "Perrys"). At the request of Plaitniffs, who had conflicts with the noticed deposition dates, Defendants agreed to postpone the deposit ions of

A two week extension of the original hearing date would fall on Thanksgiving, a court holiday.

1028261.1

2
STIPULATION AND [PROPOSED] ORDER

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

the Keilholtzs and Perrys until Tuesday, September 15, 2009, and Thursday, September 17, 2009, respectively. On Friday, September 11, 2009, Plaintiffs informed Defendants that their counsel could not attend the depositions of the Keilholtzs and Perrys due to trial and other commitments. After meeting and conferring on this issue, the parties agreed to reschedule the depositions of the Perrys for Thursday, September 24, 2009, and the Keilho ltzs for Friday, September 25, 2009, subject to, and on the condition that, the parties would stipulate to the modified briefing and hearing schedule set forth herein. 4. Defendants contend that the depositions of the Keilholtzs and Perrys are essential

to their ability to oppose the Motion for Class Certification. In light of this fact, the parties have agreed to the modified briefing and hearing schedule set forth herein so that Defendants have adequate time to depose the Keilholtzs and Perrys, obtain certified copies of the transcripts, and incorporate the testimo ny into their opposition to the Motion for Class Certification. 5. In proposing a new hearing date of December 3, 2009, Defendants note that their

lead trial counsel, William Warne, is currently scheduled to begin a three-week jury trial in Sacramento Superior Court on November 9, 2009. Mr. Warne anticipates that this trial will be completed on or about November 30, 2009. Additionally, Defendants note that their counsel Meghan Baker will be unavailable due to maternity leave starting on or about October 30, 2009, through March 1, 2010; if necessary, she might be able to make herself available for a hearing date in December, at the very earliest. /// /// /// /// /// /// /// /// ///
1028261.1

3
STIPULATION AND [PROPOSED] ORDER

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

IT IS HEREBY STIPULATED:

DATED: September 17, 2009

DOWNEY BRAND LLP By: /s/ William R. Warne WILLIAM R. WARNE Attorney for Defendants LENNOX HEARTH PRODUCTS INC. LENNOX INTERNATIONAL INC. LENNOX INDUSTRIES INC.

DATED: September 17, 2009

ARNOLD LAW FIRM

By: /s/ Kirk J. Wolden (as authorized on 9/16/09) KIRK J. WOLDEN Attorney for Plaintiffs KIRK KEILHOLTZ and KOLLEEN KEILHOLTZ for themselves and on behalf o f those similarly situated

1028261.1

4
STIPULATION AND [PROPOSED] ORDER

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

IT IS SO ORDERED: The court, having considered the Stipulation of the parties and good cause appearing, hereby orders that the Motion for Class Certification and Cross-Motion be heard on Thursday, December 3, 2009, at 2:00 p.m. in Courtroom 2, before the Honorable Claudia Wilken. Additionally, the court hereby orders the following briefing schedule on the Motion for Class Certification and Cross-Motion:

Party Plaint iffs Defendants Plaint iffs Defendants

Filing Motion for Class Certification Opposition to Motion for Class Certification and Cross-Motion Reply in Support of Motion for Certification and Opposition to Cross-Motion Surreply

Deadline August 28, 2009 October 12, 2009 October 26, 2009 November 9, 2009

September 18, 2009 Dated: __________________

By: HONORABLE CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE, NORTHERN DISTRICT OF CALIFORNIA

1028261.1

5
STIPULATION AND [PROPOSED] ORDER