Fiori et al v. Dell, Inc, et al

Filing 177

STIPULATION AND ORDER Granting Request to file Conditional Third Amended Complaint re 171 Stipulation. Signed by Judge James Ware on 11/12/2010. (ecg, COURT STAFF) (Filed on 11/12/2010)

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Fiori et al v. Dell, Inc, et al Doc. 177 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 BRIAN R. STRANGE (SBN 103252) lacounsel@earthlink.net GRETCHEN CARPENTER (SBN 180525) gcarpenter@strangeandcarpenter.com STRANGE & CARPENTER 12100 Wilshire Blvd., Suite 1900 Los Angeles, CA 90025 Telephone: 310-207-5055 Fax: 310-826-3210 RANDALL S. ROTHSCHILD (SBN 101301) randy.rothschild@verizon.net RANDALL S. ROTHSCHILD, A PC 12100 Wilshire Blvd., Suite 800 Los Angeles, CA 90025 Telephone: 310-806-9245 Fax: 310-988-2723 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION VIVIAN FIORI ARIZA and ROGGIE TRUJILLO, on behalf of themselves and all others similarly situated, Plaintiffs, vs. Case No. 09 CV 01518 JW STIPULATION TO PERMIT PLAINTIFFS TO FILE CONDITIONAL THIRD AMENDED COMPLAINT; [PROPOSED] ORDER CLASS ACTION Assigned to the Honorable James Ware, Courtroom DELL INC., a corporation; BANCTEC, 8 INC., a corporation; WORLDWIDE TECHSERVICES, LLC, an entity; DELL Action filed on April 7, 2009 CATALOG SALES, L.P., an entity; DELL PRODUCTS, L.P., an entity; DELL MARKETING L.P., an entity; DELL MARKETING L.P., LLC, an entity; DELL MARKETING G.P., LLC, an entity; DELL USA, L.P., an entity; and DOES 1 Through 10, Defendants. STIPULATION TO PERMIT PLAINTIFFS TO FILE THIRD AMENDED COMPLAINT; [PROPOSED] ORDER Case No. 09-CV-01518JW Dockets.Justia.com 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 WHEREAS, Plaintiffs Vivian Fiori Ariza and Roggie Trujillo ("Plaintiffs"), on the one hand, and Defendants Dell Inc., Dell Catalog Sales, L.P., Dell Products, L.P., Dell Marketing L.P., Dell Marketing L.P., LLC, Dell Marketing G.P., LLC, Dell USA L.P. (collectively, "Dell" or "Dell Defendants"); Defendant BancTec, Inc. ("BancTec"); and Defendant Worldwide TechServices, LLC, f/k/a QualxServ, LLC ("Worldwide") (collectively, "Defendants"), on the other hand, have reached a proposed settlement and compromise of the disputes between them and other similarly situated individuals in the Action, which is embodied in the Settlement Agreement filed with the Court; WHEREAS, on November 8, 2007, Plaintiffs' counsel filed a putative class action on behalf of Pamela Newport against Defendants in Arizona Superior Court, Pima County, styled Newport v. Dell Inc. et al., Case No. C20076533, which action was subsequently removed by Dell to the United States District Court for the District of Arizona on February 1, 2008, thereby commencing the federal case styled Newport v. Dell Inc. et al., No. 4:08-CV-0096-CKJ; WHEREAS, Plaintiffs' counsel and Defendants' counsel mediated Plaintiffs' and Ms. Newport's claims with Antonio Piazza on July 12, 2010 in an all-day mediation, and participated in additional mediation conferences that were held telephonically with Mr. Piazza on October 6 and 11, 2010; WHEREAS, the parties reached an agreement to settle all the claims of Plaintiffs and Ms. Newport and their respective cases against all of the Defendants; WHEREAS, on April 23, 2010, the Newport court stayed the case on the parties' joint stipulation; STIPULATION TO PERMIT PLAINTIFFS TO FILE THIRD AMENDED COMPLAINT; [PROPOSED] ORDER Case No. 09-CV-01518JW 2 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 WHEREAS, on July 29, 2004, Pamela F. Alvarez, through Plaintiffs' counsel, filed a putative class action in the Superior Court of the State of California, County of Mendocino, styled as Alvarez v. Dell Inc., Case No. SCUK CVG 0492921; WHEREAS, Robert Dean and Raul Reyes are currently named as the putative class representatives in the Alvarez action; WHEREAS, Plaintiffs' counsel and Dell Defendants' counsel mediated the Alvarez action with Justice Edward A. Panelli on September 28, 2010 in an all-day mediation, and the parties reached a proposed settlement that resolved in principle all the claims asserted in the Alvarez action as well as the "next business day" claims of Arizona residents; WHEREAS, the parties have thus reached a global class action settlement of these three cases, to be presented to this Court for approval; WHEREAS, pursuant to the Settlement Agreement being filed with the Court concurrently with this stipulation, Plaintiffs Ariza and Trujillo seek leave to conditionally amend the pleadings to add Ms. Newport and Messrs. Dean and Reyes as representative plaintiffs, to encompass all claims asserted in the Newport and Alvarez actions at any time (including amending the proposed class definition to include the residents of California and Arizona), and to amend the proposed class definition to include the residents of Arizona who fit the settlement class definition in this Action; WHEREAS, Plaintiffs are lodging their proposed Conditional Third Amended Complaint with the Court concurrently with this stipulation; WHEREAS, the Parties agree that Defendants' time to respond to the Conditional Third Amended Complaint shall be stayed; STIPULATION TO PERMIT PLAINTIFFS TO FILE THIRD AMENDED COMPLAINT; [PROPOSED] ORDER Case No. 09-CV-01518JW 3 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 WHEREAS, no prejudice will result from the leave requested herein; and WHEREAS, good cause exists for granting leave to amend in order to effect a global settlement of this action, the Newport action, and the Alvarez action. NOW, THEREFORE, the parties hereby stipulate, subject to Court approval, to permit Plaintiffs to conditionally file the Third Amended Complaint. If the proposed settlement is not finally approved or if the settlement does not occur for any reason, this Order shall be become null and void and the parties will revert to their respective positions prior to settlement, and the parties in this action (i.e., Plaintiffs Vivian Fiori and Roggie Trujillo and Defendants Dell, BancTec and Worldwide), the Newport action (i.e., Plaintiff Pamela Newport and Defendants Dell and BancTec), and the Alvarez action (i.e., Plaintiffs Robert Dean and Raul Reyes and the Dell Defendants) shall have all claims and defenses that they had or were asserting as of the date of the mediations at which the parties agreed to settle each action. IT IS SO STIPULATED. DATED: November 8, 2010 Respectfully Submitted, STRANGE & CARPENTER By: ____/s/_Gretchen Carpenter______ Brian R. Strange Gretchen Carpenter Attorneys for Plaintiffs DATED: November 8, 2010 REEVES & BRIGHTWELL, LLP By: ____/s/__Paul Schlaud___________ Paul Schlaud Attorneys for Dell Defendants DATED: November 8, 2010 ROBERTS RASPE & BLANTON, LLP By: ____/s/__Michael Blanton________ Michael Blanton Attorneys for Defendants Banctec, Inc. and Worldwide TechServices, LLC STIPULATION TO PERMIT PLAINTIFFS TO FILE THIRD AMENDED COMPLAINT; [PROPOSED] ORDER Case No. 09-CV-01518JW 4 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 PURSUANT TO STIPULATION THE ABOVE-REFERENCED LEAVE TO AMEND GRANTED. IS SO ORDERED: November 12 DATED: ____________________, 2010 Hon. James Ware United States District Court Judge FILER'S ATTESTATION Pursuant to General Order No. 45, Section X(B) regarding signatures, I, Gretchen Carpenter, attest that concurrence in the filing of this document has been obtained from Paul Schlaud and Michael Blanton. By: __/s/ Gretchen Carpenter_________ Gretchen Carpenter STIPULATION TO PERMIT PLAINTIFFS TO FILE THIRD AMENDED COMPLAINT; [PROPOSED] ORDER Case No. 09-CV-01518JW 5

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