Zudel v. Thumbplay, Inc et al

Filing 54

STIPULATION AND ORDER Granting Request to Stay Litigation as to M-Qube re 48 Stipulation. Stayed as to Defendant M-Qube through 3/1/2010. Signed by Judge James Ware on 11/13/2009. (ecg, COURT STAFF) (Filed on 11/13/2009)

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

UNIT ED

David C. Parisi (SBN 162248) [e-mail] PARISI & HAVENS, LLP 15233 Valleyheart Drive Sherman Oaks, California 91403 Tel: [phone] Fax: [phone] Attorneys for Plaintiff RUDOLF ZIJDEL and the putative class Ronald L. Johnston (SBN 057418) [e-mail] Angel L. Tang (SBN 205396) [e-mail] ARNOLD & PORTER LLP 777 South Figuerora Street, 44th Floor Los Angeles, California 90017-5844 Tel: [phone] Fax: [phone] James L. Cooper (pro hac vice to be submitted) [e-mail] ARNOLD & PORTER LLP 555 Twelfth Street, N.W. Washington, D.C. 20004-1206 Tel: [phone] Fax: [phone] Attorneys for Defendant M-QUBE, INC.

S

S DISTRICT TE C TA

ER

N

D IS T IC T R

OF

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION RUDOLF ZIJDEL, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. THUMBPLAY, INC., a Delaware corporation; M-QUBE, INC., a Delaware corporation, Defendants. Case No. 1-09-CV-03252 (JW) STIPULATION TO STAY LITIGATION AS TO DEFENDANT M-QUBE, INC., PENDING FINAL APPROVAL OF CLASS ACTION SETTLEMENT [AND PROPOSED ORDER]

STIPULATION TO STAY LITIGATION

A

C

LI

FO

mes Wa Judge Ja

re

R NIA

OO IT IS S

RDERE

D

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

Plaintiff RUDOLF ZIJDEL ("Plaintiff" or "Zijdel") and Defendant M-QUBE, INC. ("Defendant" or "m-Qube") (Zijdel and m-Qube are collectively the "Parties"), hereby stipulate and respectfully request that the Court stay this litigation as to Defendant m-Qube, including any responsive pleadings, discovery or any pending motions, until March 1, 2010. In support of this Stipulation, the Parties state as follows: WHEREAS, on June 10, 2009, Plaintiff filed a putative class action complaint against Defendants in the Superior Court of the State of California, Santa Clara County, seeking damages and injunctive relief related to Defendants' alleged imposition of unauthorized mobile content charges on the cell phone bills of certain T-Mobile subscribers; WHEREAS, on July 16, 2009, Thumbplay removed the case to this Court pursuant to the Class Action Fairness Act of 2005 Pub. L. No. 109-2, 119 Stat. 4 (codified in various sections of 28 U.S.C.) ("CAFA"); WHEREAS, on August 17, 2009, Plaintiff moved to remand the case back to the Santa Clara Superior Court. Plaintiff's motion to remand is currently set for hearing on November 16, 2009; WHEREAS, Plaintiff and Defendant m-Qube have entered into a nationwide class action settlement resolving all claims against m-Qube related to the alleged imposition of unauthorized mobile content charges on the cell phone bills of wireless subscribers. (See "Stipulation of Class Action Settlement," a true and accurate copy of which is attached hereto as Exhibit A.) Judge Stewart L. Palmer of the Circuit Court of Cook County, Illinois, granted preliminary approval to the class action settlement on November 3, 2009 in the case entitled Edward Parone, et al. v. mQube, Inc., et al., No. 08 CH 15834 (Circuit Court of Cook County, Illinois). Judge Palmer has set the Final Fairness Hearing for February 24, 2010. (See "Court Order Granting Preliminary Approval of the Class Action Settlement, a true and accurate copy of which is attached hereto as Exhibit B.) WHEREAS, if final approval is entered in the Parone action referenced above, all claims in this action asserted against m-Qube will be released and m-Qube will be dismissed from this action with prejudice. 2
STIPULATION TO STAY LITIGATION

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

WHEREAS, the Parties seek this stay this litigation as to m-Qube only in order to allow the above-referenced settlement to continue without the Parties incurring additional fees and costs related to this litigation. WHEREAS, the Parties request that the Court stay this litigation as to Defendant m-Qube, including any responsive pleadings, discovery or any pending motions, until March 1, 2010, or such other date as the Court may determine, at which time the Parties will apprise the Court as to the status of the pending class action settlement in the Parone action. NOW, THEREFORE, the Parties hereby stipulate and agree that, with the Court's approval: 1. This litigation, including any responsive pleadings, discovery and all pending

motions, shall be stayed as to Defendant m-Qube, Inc., only until further order of the Court. 2. Plaintiff and defendant m-Qube will advise the Court of the final disposition of the

class action settlement in the Parone action referenced above by March 1, 2010.

Dated: November 4, 2009

PARISI & HAVENS, LLP

By: ____s/David C. Parisi____________________ David C. Parisi Attorney for Plaintiff Rudolf Zijdel Dated: November 4, 2009 ARNOLD & PORTER LLP

By: _____s/Ronald L. Johnston________________ Ronald L. Johnston Attorney for Defendant m-Qube, Inc. IT IS SO ORDERED.

Dated: November 13, 2009

__________________________________________ HONORABLE JAMES WARE UNITED STATES DISTRICT JUDGE 3
STIPULATION TO STAY LITIGATION