Whittlestone, Inc. v. Handi-Craft Company

Filing 89

STIPULATION AND ORDER re 88 Stipulation, filed by Whittlestone, Inc., Handi-Craft Company. Signed by Judge ARMSTRONG on 8/30/11. (lrc, COURT STAFF) (Filed on 8/30/2011)

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BURNHAM BROWN
2 Dean Pollack State Bar No. 176440
Rohit A. Sabnis, State Bar No. 221465
3 1901 Harrison Street, 14th Floor
Oakland, CA 94612
4 Telephone:
[phone]
Facsimile:
[phone]
5 E-Mail address: [e-mail]
[e-mail]
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HERZOG CREBS LLP
7 Peter W. Herzog, Pro Hac Vice
Michael A. Vitale, Pro Hac Vice
8 100 North Broadway, 14th Floor
St. Louis, MO 63102
9 Telephone:
[phone]
Facsimile:
[phone]
10 E-Mail address: [e-mail]
[e-mail]
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Attorneys for Defendant/Counter-Claimant
12 HANDI-CRAFT COMPANY
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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WHITTLESTONE, INC., a California
corporation,

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Plaintiff,

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v.

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HANDI-CRAFT COMPANY, a Missouri
corporation,

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Defendants.

No. CV 08-04193 SBA
Assigned to the Hon. Saundra B.
Armstrong, Courtroom 3
STIPULATION AND ORDER TO
MODIFY ORDER FOR PRE-TRIAL
PREPARATION TO ALLOW FILING
OF FIRST AMENDED ANSWER TO
SECOND AMENDED COMPLAINT
AND FIRST AMENDED COUNTERCLAIM
Action Filed: September 4, 2008

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STIPULATION FOR ORDER TO MODIFY ORDER FOR PRETRIAL
PREPARATION TO ALLOW FILING OF FIRST AMENDED ANSWER TO
SECOND AMENDED COMPLAINT AND FIRST AMENDED COUNTERCLAIM

No. C08-04193

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HANDI-CRAFT COMPANY,
Counter-Claimant,

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v.
WHITTLESTONE, INC.,
Counter-Defendant.

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Pursuant to Civil Local Rules 7-1(a)(5) and 7-12 and Federal Rules of Civil Procedure
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(“FRCivP”) 16(b)(4), Plaintiff Whittlestone, Inc. (“Whittlestone”) and Defendant Handi-Craft
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Company (“Handi-Craft”), by and through their counsel, hereby stipulate to the following:
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WHEREAS the Court entered an Order for Pre-Trial Preparation on May 20, 2011.
The deadline for amending the pleadings, as established by such Order, was June 8, 2011.

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WHEREAS Handi-Craft represents that on July 8, 2011 it acquired from a third party
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various e-mails exchanged between a resident of the United Kingdom and the principal of
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Whittlestone.
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WHEREAS Handi-Craft believes that the communications in the above e-mails

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provide it with facts supporting an affirmative defense of fraud in the inducement as to the

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claims made in Plaintiff’s Second Amended Complaint. Handi-Craft also believes that the e-

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mails provide it with facts supporting a cause of action against Whittlestone for fraud in the

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inducement.

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WHEREAS Handi-Craft represents that, prior to July 8, 2011, it was not in possession

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of the above e-mails and did not know they existed. In addition, Handi-Craft represents that it
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was not, prior to July 8, 2011, otherwise aware of the facts contained in the e-mails nor was it
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STIPULATION FOR ORDER TO MODIFY ORDER FOR PRETRIAL
PREPARATION TO ALLOW FILING OF FIRST AMENDED ANSWER TO
SECOND AMENDED COMPLAINT AND FIRST AMENDED COUNTERCLAIM

No. C08-04193

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in possession of documents or other information that would have permitted it to ascertain facts

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in support of its claim for fraud in the inducement at any time before July 8, 2011.

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WHEREAS Handi-Craft prepared a [Proposed] First Amended Answer to Second
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Amended Complaint and First Amended Counter-Claim containing both an affirmative
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defense and cause of action for fraud in the inducement and forwarded it to counsel for
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Whittlestone on July 29, 2011.
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WHEREAS on August 2, 2011, Handi-Craft received correspondence from counsel

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for Whittlestone requesting that Handi-Craft provide Whittlestone with facts supporting good

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cause for modifying the Order for Pretrial Preparation and permitting the filing of its proposed

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amended answer and counter-claim. Handi-Craft responded to Whittlestone’s request on

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August 5, 2011. Whittlestone agreed to stipulate to the filing of Handi-Craft’s proposed

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amended answer and counter-claim on August 8, 2011.

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WHEREAS Handi-Craft asserts that good cause exists for the relief requested by way
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of this stipulation.
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Accordingly, Handi-Craft respectfully requests an Order from the Court as follows:

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1. That the May 20, 2011 Order for Pretrial Preparation be modified to allow Handi19
Craft to file its First Amended Answer to Second Amended Complaint and First Amended
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Counter-Claim, attached hereto as Exhibit A, no later than 7 days following notice of the
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Court’s execution of an Order pursuant to this Stipulation.
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STIPULATION FOR ORDER TO MODIFY ORDER FOR PRETRIAL
PREPARATION TO ALLOW FILING OF FIRST AMENDED ANSWER TO
SECOND AMENDED COMPLAINT AND FIRST AMENDED COUNTERCLAIM

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No. C08-04193

IT IS SO STIPULATED.

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MORGAN, FRANICH, FREDKIN & MARSH
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Dated: August 19, 2011

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/s/ David A. Kays
By:____________________________________
David A. Kays
Attorneys for Plaintiff/Counter-Defendant
WHITTLESTONE, INC.

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DATED: August 19, 2011

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BURNHAM BROWN
HERZOG CREBS LLP
/s/ Rohit A Sabnis
By___________________________
ROHIT A. SABNIS
Attorneys for Defendant/Counter-Claimant
HANDI-CRAFT COMPANY

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ORDER
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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: August 30, 2011

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____________________________________
HON. SAUNDRA B. ARMSTRONG
UNITED STATES DISTRICT COURT JUDGE

1094176

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STIPULATION FOR ORDER TO MODIFY ORDER FOR PRETRIAL
PREPARATION TO ALLOW FILING OF FIRST AMENDED ANSWER TO
SECOND AMENDED COMPLAINT AND FIRST AMENDED COUNTERCLAIM

No. C08-04193