Kim et al v. Space Pencil, Inc. et al

Filing 56

ORDER re 52 Stipulation, filed by 8tracks Inc., Tangient, LLC, Spokeo, Inc., Giga Omni Media Inc., Sitening, LLC, Involver.com, Space Pencil, Inc., Etsy Inc., John B. Kim, Kongregate Inc., Flite, Inc., Dan C. Schutzman, Slideshare.net. Signed by Judge Beeler on 11/4/2011. (lblc1, COURT STAFF) (Filed on 11/4/2011)

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1 2 3 4 5 6 7 8 9 10 GIBSON, DUNN & CRUTCHER LLP S. ASHLIE BERINGER, SBN 263977 ABeringer@gibsondunn.com JOSHUA A. JESSEN, SBN 222831 JJessen@gibsondunn.com DANIEL Y. LI, SBN 268894 DLi@gibsondunn.com 1881 Page Mill Road Palo Alto, California 94304 Telephone: (650) 849-5300 Facsimile: (650) 849-5333 Attorneys for Defendants SPACE PENCIL, INC. D/B/A KISSMETRICS and GIGA OMNI MEDIA, INC. [Counsel For Additional Parties Listed On Signature Page] 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 OAKLAND DIVISION 14 15 16 JOHN B. KIM and DAN C. SCHUTZMAN, Individuals, on Behalf of Themselves and Others Similarly Situated, 17 18 19 20 21 22 23 24 25 26 27 Plaintiffs, v. SPACE PENCIL, INC. D/B/A KISSMETRICS, BABYPIPS.COM, INVOLVER.COM, MOO, INC., SITENING, LLC., SHOEDAZZLE.COM INC., 8TRACKS INC., ABOUT.ME, FRIEND.LY, GIGA OMNI MEDIA, INC., HASOFFERS.COM, KONGREGATE INC., LIVEMOCHA INC., ROCKETTHEME, LLC, FITNESS KEEPER, INC., SEOMOZ, INC., SHARECASH, LLC., SLIDESHARE.NET, SPOKEO, INC., SPOTIFY USA, INC., VISUAL.LY, CONDUIT USA, FLlTE, INC., TANGIENT, LLC, ETSY INC, AND IVILLIAGE, INC.; Defendants. 28 Gibson, Dunn & Crutcher LLP 1 Stipulation And [Proposed] Order – Case No. 11-CV-3796 LB CASE NO. 11-CV-3796 LB STIPULATION AND [PROPOSED] ORDER TO TEMPORARILY VACATE DEADLINES FOR DEFENDANTS TO RESPOND TO FIRST AMENDED CLASS ACTION COMPLAINT PENDING OUTCOME OF MEDIATION Date Action Filed: Aug. 1, 2011 Trial Date: Not Set 1 WHEREAS, on August 1, 2011, Plaintiffs John B. Kim and Dan C. Schutzman (“Plaintiffs”) 2 filed a class action complaint against the twenty-six defendants listed on the caption page 3 (“Defendants”) in the above-referenced matter (Docket No. 1); 4 5 WHEREAS, on September 7, 2011, Plaintiffs filed a First Amended Class Action Complaint (the “Complaint’) against Defendants (Docket No. 31); 6 WHEREAS, on September 30, 2011, this Court entered a Related Case Order relating this 7 case to Case No. 11-CV-03764 LB and transferring this case from Magistrate Judge Elizabeth D. 8 Laporte to this Court (Docket No. 38); 9 WHEREAS, on October 21, 2011, the parties received notice from the Clerk that the Court 10 has scheduled a Case Management Conference for January 26, 2012 at 10:30 a.m., and ordered the 11 parties to file a Joint Case Management Statement by January 19, 2012 (Docket No. 50); 12 WHEREAS, several Defendants have not yet been served, and the Defendants that have been 13 served have received various extensions of time to respond to the Complaint, including to October 14 27, 2011 (Docket Nos. 37, 41, 49), in order to coordinate response times; 15 16 17 WHEREAS, if the case moves forward, Plaintiffs may seek leave of Court, or may obtain the agreement of Defendants, to file a Second Amended Complaint; WHEREAS, if the case moves forward, Defendants plan to move to dismiss the Complaint 18 under at least Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and likely would also move to 19 dismiss any further amended complaint on similar grounds; 20 WHEREAS, prior to the filing of a potential further amended complaint and motions to 21 dismiss, and in the interests of judicial efficiency and the conservation of the parties’ resources, 22 Plaintiffs and certain (and potentially all) of the Defendants wish to explore a resolution of this matter 23 through the services of a private mediator sometime before December 22, 2011; and 24 WHEREAS, the parties intend to notify the Court of the results of the mediation (and any 25 follow-up discussions) by no later than January 19, 2012, the date the Joint Case Management 26 Statement is due; 27 28 Gibson, Dunn & Crutcher LLP THEREFORE, IT IS HEREBY STIPULATED AND AGREED by the parties to this Stipulation, through their respective counsel, and subject to the approval of this Court, as follows: 2 Stipulation And [Proposed] Order – Case No. 11-CV-3796 LB 1. 1 2 October 27, 2011 deadline, are hereby vacated. 2. 3 4 Any existing deadlines for Defendants to respond to the Complaint, including the The parties shall notify the Court in their Joint Case Management Statement of the results of any mediation. 3. 5 If the parties have not reached a resolution of this matter by January 19, 2012, the parties 6 shall inform the Court in their Joint Case Management Statement and set a briefing schedule for a 7 Motion to Dismiss or address whether Plaintiffs may file an amended complaint. The requested vacatur of the October 27, 2011 deadline of certain Defendants to respond to 8 9 the Complaint will not alter the date of any event or any deadline already fixed by Court order. The 10 parties previously stipulated to extend the time of various Defendants to respond to the Complaint 11 (and the initial complaint) to various dates in October 2011. See Docket Nos. 12, 25-27, 29, 33, 37, 12 41, 49. 13 Respectfully submitted, 14 15 DATED: October 25, 2011 GIBSON, DUNN & CRUTCHER LLP 16 By: 17 18 /s/ S. Ashlie Beringer S. Ashlie Beringer Attorneys for Defendants SPACE PENCIL, INC. D/B/A KISSMETRICS and GIGA OMNI MEDIA, INC. 19 20 21 DURIE TANGRI LLP 22 By: 23 24 Attorneys for Defendants SITENING LLC, FLITE, INC., MODULAR PATTERNS, LTD., and ETSY, INC. 25 26 27 LAW OFFICES OF STEVEN A. ELLENBERG 28 Gibson, Dunn & Crutcher LLP /s/ Michael H. Page Michael H. Page 3 Stipulation And [Proposed] Order – Case No. 11-CV-3796 LB 1 By: 2 /s/ Mark. V. Boennighausen Mark V. Boennighausen Attorneys for Defendants TANGIENT LLC and 8TRACKS, INC. 3 4 FOLEY & LARDNER LLP 5 6 By: 7 8 /s/ Anne Bradley Anne Bradley Attorneys for Defendant SPOKEO, INC. 9 10 FENWICK & WEST LLP 11 12 By: 13 /s/ Sebastian Kaplan Sebastian Kaplan Attorneys for Defendants INVOLVER, INC. and SLIDESHARE, INC. 14 15 MITCHELL SILBERBERG & KNUPP LLP 16 17 By: 18 19 /s/ Kevin E. Gaut Kevin E. Gaut Attorneys for Defendant KONGREGATE INC. 20 21 PARISI & HAVENS LLP 22 23 By: 24 Attorneys for Plaintiffs JOHN B. KIM and DAN C. SCHUTZMAN 25 26 27 28 Gibson, Dunn & Crutcher LLP /s/ David C. Parisi David C. Parisi 4 Stipulation And [Proposed] Order – Case No. 11-CV-3796 LB ATTORNEY ATTESTATION 1 2 3 Pursuant to General Order 45, I, S. Ashlie Beringer, hereby attest that concurrence in the filing of this document has been obtained from the above-listed counsel. 4 DATED: October 25, 2011 /s/ S. Ashlie Beringer S. Ashlie Beringer 6 S NO 12 RT 101172986.1 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP ER H 13 R NIA 11 FO 10 ED RDER _________________________________ IS SO O IT The Honorable Laurel Beeler United States Magistrate Judge l Beeler e Laure Judg November 4, 2011 Dated: _____________________ LI 9 S DISTRICT TE C TA RT U O 8 PURSUANT TO STIPULATION, IT IS SO ORDERED. UNIT ED 7 5 Stipulation And [Proposed] Order – Case No. 11-CV-3796 LB A 5 N F D IS T IC T O R C

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