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

Filing 228

STIPULATION AND ORDER STAYING CIVIL ACTION re 224 . Case Management Conference set for 2/11/2011 10:30 AM in Courtroom 3, 5th Floor, San Jose. The trial dates are vacated. Signed by Judge Jeremy Fogel on 7/30/10. (dlm, COURT STAFF) (Filed on 8/3/2010)

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

Doc. 228

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Seyamack Kouretchian (State Bar No. 171741) [e-mail] Ross M. Campbell (State Bar No. 234827) [e-mail] COAST LAW GROUP, LLP 1140 S. Coast Hwy. 101 Encinitas, California 92024 Tel: [phone] Fax: [phone] Attorneys for Defendants, SHAWN HOGAN and DIGITAL POINT SOLUTIONS, 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 1-20, ) ) Defendants. ) ) ) Case No. CV 08-04052 JF PVT STIPULATION, MOTION FOR ADMINISTRATIVE RELIEF, AND [PROPOSED] ------------------ ORDER STAYING CIVIL ACTION Judge: Hon. Jeremy Fogel Dept.: Courtroom 3

THE PARTIES TO THE ABOVE-ENTITLED ACTION HEREBY STIPULATE TO AND MOVE FOR THE FOLLOWING RELIEF PURSUANT TO CIVIL LOCAL RULE 711: 1. Plaintiff alleges that Defendants, as participants in eBay's affiliate marketing

program, engaged in cookie stuffing intended to defraud Plaintiff. 2. Defendants previously moved to stay this action under Keating v. Office of Thrift

Supervision (9th Cir. 1995) 45 F.3d 322, pending the resolution of parallel criminal investigations undertaken by the United States Attorney's Office and Federal Bureau of Investigation.
Case No. CV 08-04052 JF PVT

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3.

On February 25, 2010, the Court issued an Order denying, without prejudice,

Defendants' motions to stay this civil action. The primary basis for the denial of the motions was that no indictment had been returned as to any Defendant. During the hearing on Defendants' motions to stay, the Court stated that "[i]f there's an indictment, then we have to recalibrate the entire case." (1/29/10 Tr. 18.) 4. Defendants Shawn Hogan and Brian Dunning were indicted on June 24, 2010.

United States v. Hogan, CR 10-0495 JF (N.D. Cal. June 24, 2010); United States v. Dunning, CR 10-0494 JF (N.D. Cal. June 24, 2010). The indictments are based on the same alleged cookie stuffing scheme at issue in this civil action. 5. On June 29, 2010, the United States filed a Notice of Related Case stating that

defendants Shawn Hogan and Brian Dunning in the instant action are alleged to have engaged in the same cookie stuffing scheme that is the subject of the indictments. On July 7, 2010, the Court issued an order finding that the instant civil action and the aforementioned criminal cases are related. 6. Based on the foregoing, all parties to this action hereby stipulate and move that

this civil action be stayed in its entirety as to all parties until further order by the Court. 7. The parties further stipulate and move that the Court vacate the existing case

management dates, including but not limited to the fact and expert discovery cut-off dates, the pretrial conference date, and the jury trial date. The parties also stipulate and move that a further case management conference be set for February 11, 2011, approximately six months from the date of this stipulation, or as otherwise convenient for the Court.

IT IS SO STIPULATED. DATED: July 28, 2010

DAVID R. EBERHART SHARON M. BUNZEL NORA PUCKETT O'MELVENY & MYERS LLP By: /s/ David R. Eberhart David R. Eberhart Attorneys for Plaintiff EBAY, INC. -2Case No. CV 08-04052 JF PVT

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DATED: July 28, 2010

SEYAMACK KOURETCHIAN ROSS M. CAMPBELL COAST LAW GROUP LLP By: /s/ Ross M. Campbell Ross M. Campbell Attorneys for Defendants SHAWN HOGAN and DIGITAL POINT SOLUTIONS, INC.

DATED: July 28, 2010

LEO J. PRESIADO RUS, MILIBAND & SMITH By: /s/ Leo J. Presiado Leo J. Presiado Attorneys for Defendants THUNDERWOOD HOLDINGS, INC., BRIAN DUNNING and BRIANDUNNING.COM

DATED: July 28, 2010

PATRICK K. MCCLELLAN LAW OFFICE OF PATRICK K. MCCLELLAN By: /s/ Patrick K. McClellan Patrick K. McClellan Attorneys for Defendant KESSLER's FLYING CIRCUS

DATED: July 28, 2010

TODD DUNNING /s/ Todd Dunning Pro Se

DATED: July 28, 2010

DUNNING ENTERPRISE, INC. By: /s/ Todd Dunning

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ORDER Pursuant to the foregoing stipulation and motion, and good cause appearing therefor, IT IS HEREBY ORDERED that 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 10:30 am management conference will be held on February 11, 2011 at ______. IT IS SO ORDERED. 7/30/10 Dated: ____________________ _______________________________________ The Honorable Jeremy Fogel United States District Court Judge Northern District of California

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Case No. CV 08-04052 JF PVT