Keilholtz et al v. Superior Fireplace Company et al

Filing 229

ORDER re 228 granting STIPULATION Regarding Fourth Amended Complaint by. Signed by Judge Claudia Wilken on 12/21/09. (scc, COURT STAFF) (Filed on 12/21/2009)

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Clayeo C. Arnold (SBN 65070) Kirk J. Wolden (SBN 138902) [e-mail] Clifford C. Carter (SBN 149621) CLAYEO C. ARNOLD A Professional Corporation 865 Howe Avenue, Suite 300 Sacramento, CA 95825 Telephone: [phone] Facsimile: [phone] Ernest Cory (ASB-2279-Y83E) F. Jerome Tapley (ASB-0583-A56T) Hirlye R. "Ryan" Lutz, III (ASB-6641-E59L) CORY WATSON CROWDER & DEGARIS, P.C. 2131 Magnolia Avenue Birmingham, AL 35205 Telephone: [phone] Facsimile: [phone] Michael F. Ram (SBN 104805) [e-mail] RAM & OLSON LLP 555 Montgomery Street, Suite 820 San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs and the Plaintiff Class

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION) KIRK KEILHOLTZ and KOLLEEN KEILHOTZ for themselves and on behalf of those similarly situated, Plaintiffs, v. LENNOX INDUSTRIES, INC.; LENNOX HEARTH PRODUCTS, INC.; LENNOX INTERNATIONAL, INC., and DOES 1 through 25, inclusive, Defendants. Demand for Jury Trial Original Complaint Filed: February 6, 2008

NO. 4:08-CV-00836CW STIPULATION AND ORDER REGARDING FOURTH AMENDED COMPLAINT

Case No. 4:08-cv-00836 CW ­ STIPULATION AND [PROPOSED] ORDER REGARDING FOURTH AMENDED COMPLAINT

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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") (together with Plaintiffs, the "Parties") hereby stipulate to the following: 1. Plaintiffs filed a Second Amended Complaint on June 29, 2009, which Defendants

moved to dismiss on July 9, 2009. 2. On September 8, 2009, the Court issued an Order dismissing portions of the

Second Amended Complaint based on the applicable statutes of limitations, without leave to amend; and granting leave to amend concerning other issues raised in Defendants' Motion to Dismiss ("Order"). 3. On November 30, 2009, Plaintiffs filed a Third Amended Complaint, and on

December 4, 2009, Plaintiffs filed an errata to the Third Amended Complaint. 4. Defendants contend that the Third Amended Complaint fails to comply with the

Court's Order granting Defendants' Motion to Dismiss with respect to the applicable statutes of limitations. Plaintiffs disagree but do not want to trouble the Court with a motion that can be avoided by this stipulation. 5. Plaintiffs and Defendants hereby stipulate that Plaintiffs will file a Fourth

Amended Complaint that alleges a CLRA/Unjust Enrichment Subclass to reflect the three-year statute of limitations for the CLRA and unjust enrichment claims as opposed to the four-year statute of limitations for UCL claims. 6. By entering into this Stipulation, Defendants do not waive, and have no intention

of waiving, any arguments regarding whether Plaintiffs have complied with the CLRA notice requirements, the propriety of any amendments, and/or any deficiencies in the Fourth Amended Complaint. Defendants expressly reserve the right to challenge any amendments and/or deficiencies via a Motion to Dismiss, Motion for Summary Judgment, or otherwise. 7. The Parties hereby stipulate that Defendants shall file their responsive pleading

within twenty-one (21) days after Plaintiffs file their Fourth Amended Complaint. The Parties

Case No. 4:08-cv-00836 CW ­ STIPULATION AND [PROPOSED] ORDER REGARDING FOURTH AMENDED COMPLAINT

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agree that Defendants need not file an answer to the Third Amended Complaint since Plaintiffs intend to file a superseding pleading. IT IS HEREBY STIPULATED: Dated: December 11, 2009 By: /s/ Michael F. Ram Michael F. Ram [e-mail] RAM & OLSON LLP 555 Montgomery Street, Suite 820 San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs and the Plaintiff Class /s/ William R. Warne as authorized 12/11/09 William R. Warne [e-mail] DOWNEY BRAND LLP 621 Capitol Mall, 18th Floor Sacramento, CA 95814-4731 Telephone: [phone] Facsimile: (916-444-2100 Attorneys for Defendants

Dated: December 11, 2009

By:

SO ORDERED:

Dated:

12/21/09

HONORABLE CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE NORTHERN DISTRICT OF CALIFORNIA

Case No. 4:08-cv-00836 CW ­ STIPULATION AND [PROPOSED] ORDER REGARDING FOURTH AMENDED COMPLAINT

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