Express Diagnostics Int'l, Inc. v. Tydings et al

Filing 270

ORDER Directing Plaintiff to File Individual Statement of Facts. Signed by Judge James Ware on November 18, 2008. (jwlc3, COURT STAFF) (Filed on 11/18/2008)

1 2 3 4 5 6 7 8 9 10 Express Diagnostics Int'l, Inc., v. Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION NO. C 06-01346 JW ORDER DIRECTING PLAINTIFF TO FILE INDIVIDUAL STATEMENT OF FACTS

United United States District Court

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For the Northern District of California

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Barry M. Tydings, et al., Defendants. /

On November 3, 2008, the Court issued an Order Directing Parties to File Joint Statement of Undisputed Facts in preparing for Defendants' various Motions for Summary Judgment current set for hearing on December 12, 2008. (hereafter, "Order," Docket Item No. 264.) In the Order, the Court gave the parties specific instructions with respect to the content and organization of the Joint Statement. The Court also set specific deadlines for each party to submit their individual positions with each other and file them with the Court. On November 12, 2008, Plaintiff filed an Objection to Defendants' Noncompliant Submission in Response to Court's Order. (Docket Item No. 268.) Attached to Plaintiff's Objection was Defendants' initial factual submission in response to the Court's Order. (Id., Ex. 1.) Having reviewed Plaintiff's Objection, the Court finds that Defendants have failed to comply with the Court's Order. Defendants provided neither the structure nor the content they were directed to produce with respect to the undisputed facts. What content Defendants did provide to Plaintiff, was given in a manner that rendered Plaintiff completely unable to comply with its respective

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responsibilities pursuant to the Court's Order. Finally, Defendants' factual statement was not filed with the Court, as was also required by the November 3 Order. Since the hearing on Defendants' motions is fast approaching, the Court finds that it needs to keep with the schedule as set forth in the November 3 Order in an effort to bring these motions to a close. Accordingly, the Court acknowledges Plaintiff's objection to Defendants' submission and will address Defendants' deficient response in due course. However, regardless of Defendants' action, the Court directs Plaintiff to prepare a Factual Statement, in which it will identify all facts relevant to the issue of "secondary meaning" of the alleged DrugCheck trademark. Plaintiff shall clearly identify which of those facts it contends are in dispute, and shall direct the Court to evidence in the record in support of each fact cited. Plaintiff is admonished to carefully limit the scope of its submission to the "secondary meaning" issue identified by the Court. Plaintiff shall file its Factual Statement with the Court no later than November 24, 2008 at 3:00 p.m. In light of Defendants' failure to conform with the Court's instructions, no further response from Defendants is required.

United States District Court

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For the Northern District of California

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Dated: November 18, 2008

JAMES WARE United States District Judge

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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: Joanna R. Mendoza [e-mail] Joseph Lawrence Strabala [e-mail] Martin H. Orlick [e-mail] Richard Allen Nebb [e-mail] William N. Woodson [e-mail]

Dated: November 18, 2008

Richard W. Wieking, Clerk By: /s/ JW Chambers Elizabeth Garcia Courtroom Deputy

United States District Court

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For the Northern District of California

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