NVIDIA Corporation v. Carlyle Fortran Trust et al

Filing 319

STIPULATION AND ORDER AS MODIFIED BY THE COURT VACATING 7/19/2010 CASE MANAGEMENT CONFERENCE; REFERRING CASE to Private ADR re (34 in 5:09-cv-02478-JW) Stipulation, (318 in 5:05-cv-00427-JW) Stipulation. Mediation deadline set for 8/30/2010. ***CMC Deadlines terminated. Signed by Judge James Ware on 7/15/2010. (ecg, COURT STAFF) (Filed on 7/15/2010)

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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 DLA PIPER LLP (US) LO S A N G E L E S DLA PIPER LLP (US) Betty M. Shumener (SBN 137220) Henry H. Oh (SBN 187127) 550 S. Hope Street, Suite 2300 Los Angeles, California 90071-2678 Telephone: 213 330-7700 Facsimile: 213 330-7701 E-mail: henry.oh@dlapiper.com Attorneys for Plaintiff CARLYLE FORTRAN TRUST ORRICK, HERRINGTON & SUTCLIFFE LLP ROBERT P. VARIAN (STATE BAR NO. 107459) KAREN JOHNSON-MCKEWAN (STATE BAR NO. 121570) JAMES N. KRAMER (STATE BAR NO. 154709) JUSTIN M. LICHTERMAN (STATE BAR NO. 225734) 405 Howard Street San Francisco, CA 94105 Telephone: 415-773-5700 Facsimile: 415-773-5759 Attorneys for Defendants NVIDIA CORPORATION, NVIDIA US INVESTMENT COMPANY, INC., JEN-HSUN HUANG, JAMES C. GAITHER, A. BROOKE SEAWELL, WILLIAM J. MILLER, TENCH COXE, MARK A. STEVENS, HARVEY C. JONES, CHRISTINE B. HOBERG UNIT ED S S DISTRICT TE C TA ER N F D IS T IC T O R UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION In re: 3DFX INTERACTIVE, INC., a California corporation, Debtor. Case No. 05-00427 JW (Related to Case No. 09-02478 JW) JOINT STIPULATION AND [PROPOSED] ORDER RE MEDIATION AND CASE MANAGEMENT Judge: CARLYLE FORTRAN TRUST, Plaintiff, vs. NVIDIA CORPORATION, et al., Defendants. JOINT STIPULATION AND [PROPOSED] ORDER RE MEDIATION AND CASE MANAGEMENT WEST\22071220 3 -1Case No. 05-427JW Hon. James Ware A C 7/15/2010 LI FO m Judge Ja es Ware R NIA D RDERE IS SO O FIED IT DI AS MO RT U O NO RT H 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 DLA PIPER LLP (US) LO S A N G E L E S STIPULATION WHEREAS on March 11, 2009, plaintiff Carlyle Fortran Trust ("Carlyle") filed a Motion For Order Establishing Trustee's Abandonment of the Carlyle Claims Against nVidia Defendants ("Motion for Abandonment") with the Bankruptcy Court seeking the Trustee's abandonment of certain claims alleged in Carlyle's Complaint in Case No. 05-00427 JW; WHEREAS on May 21, 2009, the Bankruptcy Court entered an Order denying Carlyle's Motion for Abandonment without prejudice; WHEREAS on May 29, 2009, Carlyle filed a Notice of Appeal and Motion for Leave to Appeal the Bankruptcy Court's Order denying Carlyle's Motion for Abandonment without prejudice; WHEREAS on June 17, 2010, the Court entered an Order Reversing Bankruptcy Court Order; Granting Motion For Abandonment Of Claims ("Order") in which the Court reversed the Bankruptcy Court's Order denying Carlyle's Motion for Abandonment without prejudice; WHEREAS on July 8, 2010, defendants NVIDIA Corporation, et al. ("NVIDIA Defendants") filed a Petition for Certification of the Order for interlocutory appeal under 28 U.S.C. 1292(b) ("Petition for Certification") set for hearing before the Court on November 22, 2010; WHEREAS Carlyle proposed to NVIDIA Defendants that the parties participate in private mediation; WHEREAS NVIDIA Defendants are agreeable to Carlyle's proposal provided that any litigation and discovery in Carlyle's action (Case No. 05-00427 JW) are stayed pending mediation, while the Petition for Certification filed by NVIDIA Defendants remains on calendar for hearing before the Court on November 22, 2010; WHEREAS Carlyle is agreeable to NVIDIA Defendants' proposal; NOW THEREFORE, the parties hereby stipulate and agree as follows: 1. The parties shall participate in mediation before a private mediator, which shall be JOINT STIPULATION AND [PROPOSED] ORDER RE MEDIATION AND CASE MANAGEMENT WEST\22071220 3 -2Case No. 05-427JW 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 DLA PIPER LLP (US) LO S A N G E L E S completed on or before August 30, 2010. 2. Any litigation and discovery in Carlyle's action (Case No. 05-00427 JW) shall be stayed pending mediation. 3. The Petition for Certification shall remain on calendar for hearing on November 22, 2010. Carlyle's Opposition to the Petition for Certification shall be due on October 22, 2010 November 1, 2010 and NVIDIA Defendants' Reply shall be due on November 5, 2010. 8, 4. In the event mediation is unsuccessful, litigation and discovery in Carlyle's action (Case No. 05-00427 JW) may resume. However, the NVIDIA Defendants do not hereby waive the right to seek a stay of such proceedings pending resolution of the Petition for Certification and Carlyle does not hereby waive the right to oppose such a request for a stay. Within 10 days after mediation, the parties shall submit a joint statement reporting to the Court whether mediation was successful or unsuccessful. 5. The parties agree that the Case Management Conference currently scheduled for July 19, 2010 at 10:00 a.m. should be taken off calendar pending mediation. SO STIPULATED. Dated: July 14, 2010 DLA PIPER LLP (US) By: /s/ Henry H. Oh Henry H. Oh Attorneys for Plaintiff CARLYLE FORTRAN TRUST Dated: July 14, 2010 ORRICK HERRINGTON & SUTCLIFFE LLP By: /s/ Karen Johnson-McKewan Karen Johnson-McKewan Attorneys for Defendants NVIDIA CORPORATION, ET AL. JOINT STIPULATION AND [PROPOSED] ORDER RE MEDIATION AND CASE MANAGEMENT WEST\22071220 3 -3Case No. 05-427JW 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 DLA PIPER LLP (US) LO S A N G E L E S ORDER AS MODIFIED ORDER Pursuant to the stipulation, and GOOD CAUSE appearing therefore, the Court hereby orders as follows: 1. The parties shall participate in mediation before a private mediator. The parties shall complete such mediation on or before August 30, 2010. 2. Any litigation and discovery in Carlyle's action (Case No. 05-00427JW) shall be stayed pending mediation. 3. The Petition for Certification filed by NVIDIA Defendants in Case No. 09- 02478JW shall remain on calendar for hearing on November 22, 2010. Carlyle's Opposition to October 22, 2010 the Petition for Certification is due on November 1, 2010 and NVIDIA Defendants' Reply is due on November 8, 2010. November 5, 2010. 4. The Case Management Conference currently scheduled in Carlyle Fortran Trust v. NVIDIA Corp., Case No. 05-00427 and in In re 3dfx Interactive, Inc., Case No. 09-02478, for July 19, 2010 at 10:00 a.m. is hereby vacated. 5. In the event the mediation is unsuccessful, litigation and discovery in Carlyle's action (Case No. 05-00427JW) may resume, though the NVIDIA Defendants may seek an order from this Court staying proceedings pending resolution of the Petition for Certification and Carlyle may oppose such a request for a stay. Within 10 days after mediation, the parties shall submit a joint case management statement reporting to the Court whether mediation was successful or unsuccessful. The Court will hold a Case Management Conference on [September 20, 2010] _________________________ at _________ a.m. in the event mediation is unsuccessful. IT IS SO ORDERED Dated: July 15, 2010 United States District Court Judge JOINT STIPULATION AND [PROPOSED] ORDER RE MEDIATION AND CASE MANAGEMENT WEST\22071220 3 -4Case No. 05-427JW

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