eBay Inc. v. Digital Point Solutions, Inc. et al

Filing 226

CASE MANAGEMENT STATEMENT JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER filed by eBay Inc.. (Eberhart, David) (Filed on 7/30/2010)

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DAVID R. EBERHART (S.B. #195474) [e-mail] SHARON M. BUNZEL (S.B. #181609) [e-mail] NORA M. PUCKETT (S.B. #248743) [e-mail] O'MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff eBay Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION EBAY INC., Plaintiff, v. DIGITAL POINT SOLUTIONS, INC., SHAWN HOGAN, KESSLER'S FLYING CIRCUS, THUNDERWOOD HOLDINGS, INC., TODD DUNNING, DUNNING ENTERPRISE, INC., BRIAN DUNNING, BRIANDUNNING.COM, and DOES 120, Defendants. Case No. C 08-4052 JF PVT JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER Conference Date: August 6, 2010 Time: 10:30 a.m. Judge: Hon. Jeremy Fogel

JOINT CASE MANAGEMENT STMT. AND [PROPOSED] ORDER - C 08-4052 JF PVT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 IV. III. II.

This Case Management Statement and Proposed Order is jointly submitted by plaintiff eBay Inc. and defendants Digital Point Solutions, Inc., Shawn Hogan, Thunderwood Holdings, Inc., Brian Dunning, Briandunning.com, and Kessler's Flying Circus, and those parties request that the Court adopt it as its Case Management Order in this case. Those parties, through undersigned counsel, have met and conferred on the matters contained herein. eBay was unsuccessful in its attempts to contact the remaining defendants, who are proceeding Pro Se, prior to filing this Case Management Statement and Proposed Order. I. JURISDICTION AND SERVICE There have been no changes since the previous Joint Case Management Statement. FACTS There have been no changes since the previous Joint Case Management Statement. LEGAL ISSUES There have been no changes since the previous Joint Case Management Statement. PENDING AND ANTICIPATED MOTIONS On June 24, 2010, Defendants Shawn Hogan and Brian Dunning were indicted.

17 United States v. Hogan, CR 10-0495 JF (N.D. Cal. June 24, 2010); United States v. 18 Dunning, CR 10-0494 JF (N.D. Cal. June 24, 2010). The indictments were based on the 19 same alleged cookie stuffing scheme at issue in this civil action. On June 29, 2010, the 20 United States filed a Notice of Related Case stating that defendants Shawn Hogan and 21 Brian Dunning in the instant action were alleged to have engaged in the same cookie 22 stuffing scheme that is the subject of the indictments. On July 7, 2010, the Court issued an 23 order finding that the instant civil action and the aforementioned criminal cases are related. 24 On July 20, 2010, Defendants Thunderwood Holdings, Inc., Brian Dunning,

25 BrianDunning.com, and Kessler's Flying Circus filed a motion to stay this civil action as 26 against those Defendants pending resolution of the indictment and attendant criminal 27 proceeding against defendant Brian Dunning. Footnote 2 of that motion indicated that the 28 other defendants were not in agreement regarding the propriety of a stay. On July 21,
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1 2010, this Court set a case management conference for August 6, 2010 at 10:30 a.m. 2 On July 27, 2010, all parties jointly stipulated and moved that this civil action be

3 stayed in its entirety as to all parties until further ordered by the Court. The parties further 4 stipulated and moved that the Court vacate the existing case management dates, including, 5 but not limited to, the fact and expert discovery cut-off dates, the pretrial conference date, 6 and the jury trial date. The parties also stipulated and moved that a further case 7 management conference be set for February 11, 2011, approximately six months from the 8 date of the stipulation, or as otherwise convenient for the Court. That joint stipulation and 9 motion remain pending as of the filing of this Case Management Conference Statement. 10 Defendants Thunderwood Holdings, Inc., Brian Dunning, BrianDunning.com, and 11 Kessler's Flying Circus will withdraw their pending motion to stay once the Court signs the 12 joint stipulation and order staying the case. 13 14 15 16 17 18 19 20 VII. VI. V. AMENDMENT OF PLEADINGS There have been no changes since the previous Joint Case Management Statement. EVIDENCE PRESERVATION There have been no changes since the previous Joint Case Management Statement. DISCLOSURES There have been no changes since the previous Joint Case Management Statement. VIII. DISCOVERY PLAN As discussed in section IV above, in light of the indictments of defendants Shawn

21 Hogan and Brian Dunning, all parties jointly stipulated and moved that this civil action be 22 stayed in its entirety as to all parties until further ordered by the Court. Should the Court 23 grant the requested stay, all currently pending discovery obligations and disputes will be 24 held in abeyance until the lifting of the stay by this Court and the parties will revisit the 25 discovery schedule at that time. 26 27 28
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IX.

RELATED CASES There have been no changes since the previous Joint Case Management Statement.

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X.

RELIEF There have been no changes since the previous Joint Case Management Statement.

XI.

SETTLEMENT AND ADR There have been no changes since the previous Joint Case Management Statement.

XII.

MAGISTRATE JUDGE There have been no changes since the previous Joint Case Management Statement.

XIII. OTHER REFERENCES There have been no changes since the previous Joint Case Management Statement. XIV. NARROWING OF ISSUES There have been no changes since the previous Joint Case Management Statement. XV. EXPEDITED SCHEDULE There have been no changes since the previous Joint Case Management Statement. XVI. SCHEDULING As discussed in section IV above, the parties have stipulated and moved that a

15 further case management conference be set for February 11, 2011, approximately six 16 months from the date of the stipulation, or as otherwise convenient for the Court. 17 18 19 20 21 22 23 24 25 26 27 28 XVII. TRIAL There have been no changes since the previous Joint Case Management Statement. XVIII. DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS

There have been no changes since the previous Joint Case Management Statement. Dated: July 30, 2010 DAVID R. EBERHART SHARON M. BUNZEL NORA M. PUCKETT O'MELVENY & MYERS LLP

By: /s/ David R. Eberhart David R. Eberhart Attorneys for Plaintiff eBay Inc.
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Dated: July 30, 2010

SEYAMACK KOURETCHIAN COAST LAW GROUP, LLP

By: /s/ Ross Campbell Ross Campbell Attorneys for Defendants Digital Point Solutions, Inc. and Shawn Hogan Dated: July 30, 2010 LEO J. PRESIADO RUS, MILIBAND & SMITH, A PROFESSIONAL CORPORATION

By: /s/ Leo J. Presiado Leo J. Presiado Attorneys for Defendants Thunderwood Holdings, Inc., Brian Dunning and BrianDunning.com Dated: July 30, 2010 PATRICK K. MCCLELLAN LAW OFFICE OF PATRICK K. MCCLELLAN

By: /s/ Patrick K. McClellan Patrick K. McClellan Attorney for Defendant Kessler's Flying Circus ATTESTATION Pursuant to General Order No. 45 X(B), I hereby attest that concurrence in the filing of this document has been obtained from each of the above-listed signatories.

By:__/s/ David R. Eberhart________ David R. Eberhart

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CASE MANAGEMENT ORDER The Case Management Statement and Proposed Order are hereby adopted by this Court as the Case Management Order for the case, and the parties are ordered to comply with this Order. This action is stayed in its entirety as to all parties until further order by the Court. The Court hereby vacates all existing case management dates. A further case management conference will be held on February 11, 2011 at ______. IT IS SO ORDERED.

Dated: ____________________

The Honorable Jeremy Fogel United States District Court Judge Northern District of California

SF1:799814

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