Cytokinetics, Inc. v. Pharm-Olam International, Ltd.

Filing 81

ORDER GRANTING AS MODIFIED 80 STIPULATION OF DISMISSAL WITH PREJUDICE.***Civil Case Terminated. Signed by Judge Jeffrey S. White on 7/11/16. (jjoS, COURT STAFF) (Filed on 7/11/2016) Modified on 7/11/2016 (jjoS, COURT STAFF).

1
2
3
4
5
6

COOLEY LLP
SHANNON M. EAGAN (212830)
([e-mail])
HEATHER DUNN NAVARRO (238158)
([e-mail] )
SHAWNA V. BENFIELD (290511)
([e-mail])
3175 Hanover Street
Palo Alto, CA 94304-1130
Telephone:
[phone]
Facsimile:
[phone]

7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

OAKLAND DIVISION

11
12

CYTOKINETICS, INC.,

13
14
15
16
17
18
19

Case No. 4:14-cv-05256-JSW

Plaintiff,

STIPULATION AND [PROPOSED] ORDER
OF DISMISSAL WITH PREJUDICE
AS MODIFIED

and
DATATRAK INTERNATIONAL, INC.,
New Party Plaintiff,
v.
PHARM-OLAM INTERNATIONAL, LTD.,
Defendant.

20
21
22
23
24
25
26
27
28
COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

1.

STIPULATION OF DISMISSAL
CASE NO. 4:14-CV-05256-JSW

1

WHEREAS, on December 1, 2014, Plaintiff Cytokinetics, Inc. (“Cytokinetics”) filed a

2

complaint in the above-captioned action (the “Action”) against Defendant Pharm-Olam

3

International, Ltd. (“Pharm-Olam”) alleging fraudulent inducement, breach of contract and

4

negligence by Pharm-Olam in connection with its performance as the data management vendor

5

for the BENEFITS-ALS clinical trial;

6
7

WHEREAS, on March 24, 2015, Pharm-Olam filed an answer, denying the allegations in
the complaint;

8

WHEREAS, on June 5, 2015, Datatrak International, Inc. (“Datatrak”) filed a motion to

9

intervene as a New Party Plaintiff, seeking a declaratory judgment that the indemnification

10

provision of the agreement between Pharm-Olam and Datatrak did not require Datatrak to

11

indemnify Pharm-Olam for the claims asserted against Pharm-Olam by Cytokinetics;

12
13

WHEREAS, on July 1, 2015, the Court granted Datatrak’s motion and Datatrak filed its
complaint against Pharm-Olam;

14

WHEREAS, on July 21, 2015, Pharm-Olam filed an answer to Datatrak’s complaint,

15

denying the allegations therein, and brought a counterclaim for a declaratory judgment that

16

Datatrak must indemnify Pharm-Olam for the claims asserted against it by Cytokinetics;

17
18

WHEREAS, on August 17, 2015, Datatrak filed an answer to Pharm-Olam’s
counterclaim, denying the allegations therein;

19

WHEREAS, on May 10, 2016, Cytokinetics, Pharm-Olam and Datatrak filed a Notice of

20

Settlement requesting that all calendared deadlines be vacated pending the performance of

21

conditions contained within the parties’ Settlement Agreement. On the same day, the court

22

entered an order vacating all such deadlines;

23

WHEREAS, on or around June 7, 2016, Cytokinetics, Pharm-Olam and Datatrak entered

24

into a Settlement Agreement and Mutual Waiver and General Release of All Claims (“Settlement

25

Agreement”) in the Action thereby resolving all disputes among the parties, the conditions of

26

which have now been met;

27

BASED ON THE FOREGOING, IT IS HEREBY STIPULATED AND AGREED by

28

and among Cytokinetics, Pharm-Olam and Datatrak, through their respective undersigned

COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

2.

STIPULATION OF DISMISSAL
CASE NO. 4:14-CV-05256-JSW

1

counsel, that the above action is hereby DISMISSED WITH PREJUDICE and that the Court

2

may enter judgment herein dismissing the above-captioned action with prejudice pursuant to Rule

3

41(a)(2) of the Federal Rules of Civil Procedure. Each party shall bear its own costs and

4

attorneys’ fees.

5
6

Respectfully submitted,
Dated: July 8, 2016

COOLEY LLP

7
8

/s/ Shannon M. Eagan
Shannon M. Eagan (212830)

9

Attorneys for Plaintiff CYTOKINETICS, INC.

10
11

Dated: July 8, 2016

12
13

CALFEE HALTER & GRISWOLD LLP
Admitted Pro Hac Vice
Kimberly Moses (Ohio No. 0029601)
WILSON, ELSER, MOSKOWITZ, EDELMAN &
DICKER LLP

14
15

/s/ Frances J. Torrence
Frances J. Torrence (154653)

16
17

Attorneys for New Party Plaintiff DATATRAK
INTERNATIONAL, INC.

18
19

Dated: July 8, 2016

COBLENTZ PATCH DUFFY & BASS LLP

20
/s/ Rees F. Morgan ________________________
Rees F. Morgan (229899)

21
22
23
24
25
26

Attorneys for Defendant PHARM-OLAM
INTERNATIONAL, LTD.
ORDER
Pursuant to the above stipulation, this case is DISMISSED with prejudice. The Clerk shall
Pursuant to the above stipulation, this case is DISMISSED. The Clerk shall close the file.
close the file.
11th
IT IS SO ORDERED, this _____ day of July, 2016.
Dated:

July 11, 2016
JEFFREY S. WHITE
United States District Judge

27
133620764 v1

28
COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO

3.

STIPULATION OF DISMISSAL
CASE NO. 4:14-CV-05256-JSW