Coatek, Inc v. ITEQ Corporation

Filing 62

STIPULATION AND ORDER AS MODIFIED BY THE COURT to Amend Deadlines Set Forth in Preliminary Pretrial Conference Scheduling Order re 60 Stipulation. Deadline for Filing Dispositive Motions due by 1/21/2011. Hearing on Dispositive Motions set for 2/28 /2011 09:00 AM in Courtroom 8, 4th Floor, San Jose before Hon. James Ware. Joint Pretrial Conference Statement, In Limine Motions, and Proposed Jury Instructions Due 3/28/2011 Final Pretrial Conference set for 4/25/2011 11:00 AM. Jury Selection set for 5/10/2011 09:00 AM before Hon. James Ware. Jury Trial set for 5/10/2011 01:00 PM - 04:00 PM; 5/11/2011 01:00 PM - 04:00 PM; Argue and Submit set for 5/12/2011 01:00 PM - 04:00 PM. Jury Deliberations set for 5/13/2011, 5/16/2011 - 5/19/2011. Signed by Judge James Ware on 12/29/2010. (ecg, COURT STAFF) (Filed on 12/29/2010)

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FENWICK & WEST LLP
A T T O R N E Y S A T LAW S A N FR A N C I S C O

MICHAEL A. SANDS (CSB NO. 178788) [e-mail] FENWICK & WEST LLP Silicon Valley Center 801 California Street Mountain View, CA 94041 Telephone: [phone] Facsimile: [phone] THOMAS R. KLINE, pro hac vice [e-mail] ANDREWS KURTH LLP 1350 I Street NW, Suite 1100 Washington, DC 20005 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant ITEQ CORPORATION

GREGORY CHARLES (CSB NO. 208583) [e-mail] CAMPEAU GOODSELL SMITH 440 North 1st Street, Suite 100 San Jose, California 95112 Telephone: [phone] Facsimile: [phone] Attorney for Plaintiff COATEK, INC.
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WAS:165764.4

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

C F D I S T I C T O 12/29/2010 R

COATEK, INC., Plaintiff, v. ITEQ CORPORATION, Defendant.

Case No. 09-03514 JW STIPULATION AND [PROPOSED] ORDER TO AMEND DEADLINES SET FORTH IN PRELIMINARY PRETRIAL CONFERENCE SCHEDULING ORDER

The parties jointly submit this Stipulation and [Proposed] Order to Amend Deadlines Set Forth in the Preliminary Pretrial Conference Scheduling Order to assist the Court in conforming the pretrial and trial schedule to recent developments in discovery.

STIPULATION & [PROPOSED] ORDER RE AMENDING SCHEDULING ORDER

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FENWICK & WEST LLP
A T T O R N E Y S A T LAW S A N FR A N C I S C O

On November 1, 2010, the Court, pursuant to the parties' joint submission, issued a Preliminary Pretrial Conference Scheduling Order [Dkt No. 51] ("Order") setting certain deadlines for pretrial and trial in this action. After that Order issued, ITEQ filed a Motion to Compel discovery from Coatek [Dkt No. 52]. Magistrate Judge Grewal granted ITEQ's Motion on December 15, 2010 as unopposed, and ordered Coatek to produce documents and answer ITEQ's interrogatories no later than January 7, 2011 [Dkt No. 59]. Neither party will be prejudiced by this extension of the schedule, nor will the schedule become unreasonably protracted. Only one claim remains to be resolved, on which ITEQ intends to seek resolution by summary judgment after Coatek completes its discovery. On March 3, 2010, the Court granted, in part, ITEQ's Motion to Dismiss Coatek's First Amended Complaint [Dkt No. 30], dismissing Coatek's First, Second and Third Causes of Action with prejudice [Dkt No. 35]. On October 20, 2010, the Court granted, in part, ITEQ's Motion for Summary Judgment on its Counterclaims [Dkt Nos. 37; 46]. As a result of the Court's prior orders on ITEQ's Motions, the sole remaining claim in the case is Coatek's Fourth Cause of Action against ITEQ for Breach of Contract. ITEQ plans to move for summary judgment on Coatek's last claim, which if granted would obviate the need for trial. Coatek may also move for summary judgment. Accordingly, the parties propose adding to the schedule a deadline for filing dispositive motions and a hearing date on any such motion. Finally, as the parties informed the Court in its December 10 Stipulation to continue the close of discovery [Dkt No. 58], they remain hopeful that their settlement discussions may end the case. As a result of the January 7, 2011 deadline for Coatek's discovery, ITEQ's intent to seek summary judgment on the single remaining claim if settlement discussions fail to resolve the case, and the parties' ongoing settlement discussions, scheduling adjustments are required to the Order. THEREFORE, the parties ask that the Court ORDER that the "Trial Schedule" section of the November 1, 2010 Preliminary Pretrial Conference Scheduling Order [Dkt No. 51] be replaced in its entirety, and read as follows:

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WAS:165764.4

STIPULATION & [PROPOSED] ORDER RE AMENDING SCHEDULING ORDER

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FENWICK & WEST LLP
A T T O R N E Y S A T LAW S A N FR A N C I S C O

TRIAL SCHEDULE Deadline for Filing Dispositive Motions Hearing on Dispositive Motions Final Pretrial Conference at 11 a.m. (¶ 4) (~ 14 days before Jury Selection) Joint Pretrial Conference Statement, In Limine Motions, and Proposed Jury Instructions Due (~30 days before Final Pretrial Conference) Once the in limine binders are lodged with the Court (¶3(b)), the Court will determine whether a hearing is necessary for the motions in advance of the Final Pretrial Conference and set the hearing accordingly. Jury Selection Jury Trial Date and Sessions1 Session 1 Session 2 Argue & Submit Jury Deliberations May 10, 2011 at 9 a.m. May 10, 2011 at 1 p.m. - 4 p.m. May 11, 2011 at 1 p.m. - 4 p.m. May 12, 2011 at 1 p.m. May 13, 2011 and May 16 17-19, 2011, as needed January 21, 2011 February 28, 2011 at 9 a.m. April 25, 2011

March 28, 2011

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Pursuant to Civil L.R. 6-2, Defendant ITEQ has filed a concurrent, supporting declaration with this Stipulation. The parties request that if it would be helpful, the Court schedule a telephonic conference to discuss the proposed new schedule.

/// Jury trials are held in afternoon sessions from 1:00pm to 4:00pm, Tuesdays through Fridays unless the Court otherwise specifies. At the Final Pretrial Conference, the Court reserves the right to fold the afternoon sessions into morning sessions (9:00 a.m. - 12:00 p.m.) thus creating full days for trial. The final trial schedule will be confirmed at the Final Pretrial Conference.
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STIPULATION & [PROPOSED] ORDER RE AMENDING SCHEDULING ORDER

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FENWICK & WEST LLP
A T T O R N E Y S A T LAW S A N FR A N C I S C O

SO STIPULATED: Dated: December 22, 2010 FENWICK & WEST LLP By: /s/ Michael A. Sands Michael A. Sands (CSB NO. 178788)

ANDREWS KURTH LLP Thomas R. Kline Attorneys for ITEQ Corporation By: /s/ Gregory Charles Gregory Charles (CSB No. 208583)

Attorney for Coatek, Inc.

PURSUANT TO STIPULATION, IT IS SO ORDERED.
29 Dated: December __, 2010

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The Honorable James Ware United States District Court Judge

ATTORNEY ATTESTATION Pursuant to General Order 45, I hereby attest that that concurrence in the filing of this document has been obtained from the signatory indicated by a "conformed" signature (/s/) within this e-filed document. /s/ Michael A. Sands Michael A. Sands

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