Millar et al v. City of Sunnyvale et al

Filing 34

STIPULATION AND ORDER AS MODIFIED BY THE COURT re 33 Stipulation. The Motion to Dismiss remains on calendar as scheduled for 2/14/2011 at 9:00 AM. The Court will set a case management conference in its Order addressing the pending Motion to Dismiss. Signed by Judge James Ware on 12/21/2010. (ecg, COURT STAFF) (Filed on 12/21/2010)

Millar et al v. City of Sunnyvale et al

Doc. 34

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Gregory M. Fox, State Bar No. 070876 Arlene C. Helfrich, State Bar No. 096461 BERTRAND, FOX & ELLIOT The Waterfront Building 2749 Hyde Street San Francisco, California 94109 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants CITY OF SUNNYVALE, DEVON KLEIN, CARL RUSHMEYER and KELLY FITZGERALD

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C F D IS T IC T O R 12/21/2010

) ) ) ) Plaintiffs, ) vs. ) ) CITY OF SUNNYVALE, DEVON KLEIN, CARL RUSHMEYER, KELLY FITZGERALD, ) ) and DOES 1 to 20, ) ) Defendants. ) ) ) ) BRUCE MILLAR, PATRICIA MILLAR, and DAVID MILLAR,

Case No.: CV10-0827 JW STIPULATION AND [PROPOSED] ORDER TO VACATE DISCOVERY SCHEDULE, CONTINUE HEARING DATE OF DEFENDANTS' MOTION TO DISMISS AND REQUEST FOR CMC DATE FOLLOWING RULING ON MOTION TO DISMISS

The parties, through undersigned counsel, stipulate as follows, and request that the Court enter its Order implementing this stipulation. 1. The Court's June 3, 2010 Scheduling Order sets the Close of All Discovery as March 7, 2011. The Order requires disclosure of experts 63 days before close of discovery, or, on January 3, 2011. 2. The Court granted defendants' motion to dismiss with leave to amend on June 22, 2010, and, pursuant to stipulation, plaintiffs had until September 30, 2010 to file amend their complaint, and defendants had twenty days thereafter to file their response. 3. Plaintiffs filed their First Amended Complaint on September 30, 2010. Defendants filed
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STIPULATION AND [PROPOSED] ORDER VACATING DISCOVERY DATES AND CONTINUING MOTION TO DISMISS Dockets.Justia.com

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their second Motion to Dismiss in response, scheduling the hearing date for the earliest available date at that time, which was February 14, 2011. Thus, this second Motion to Dismiss is still pending. 4. At this point there is no operative complaint, which compromises the parties' ability to

pursue focused discovery or retain appropriate expert assistance. The parties believe that setting the discovery schedule prior to the confirmation of an operative complaint is premature and therefore stipulate that the current dates set for expert disclosure and close of all discovery as set forth in the June 3, 2010 Scheduling Order be vacated. 5. Plaintiffs have requested that the defendants' Motion to Dismiss be continued to the next

available date in April, 2011, and defendants have no objection to this request. Plaintiffs have requested that further efforts at mediation be pursued and Defendants have not yet had a chance to respond to said request due to their lead counsel's heavy trial schedule and other matters. 6. The parties request that a Case Management Conference be scheduled to follow the date

which the Court sets as the date for defendants' Answer, if and when the Court so orders, at which time, the discovery schedule can be reconsidered.

Dated: December 16, 2010

LAW OFFICES OF NICHOLAS DAMER

By:

/s/ Nicholas Damer Attorney for Plaintiffs

Dated: December 16, 2010

BERTRAND, FOX & ELLIOT

By:

/s/ Gregory M. Fox Arlene C. Helfrich Attorney for Defendants CITY OF SUNNYVALE, DEVON KLEIN, CAROL RUSHMEYER and KELLY FITZGERALD
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STIPULATION AND [PROPOSED] ORDER VACATING DISCOVERY DATES AND CONTINUING MOTION TO DISMISS

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ATTORNEY ATTESTATION I hereby attest that I have on file all holograph signatures for any signatures indicated by a conformed signature ("/s/") within this E-filed document. /s/ Gregory M. Fox ORDER Good cause appearing, it is ordered that the above Stipulation is approved and that: 1) The discovery deadlines set forth in the Court's Scheduling Order of June 3, 2010 are hereby vacated; 2) The hearing on defendants' Motion to Dismiss is remains onfrom February 14, 2011 at continued to 9:00 AM. April __, 2011. 3) The Court will set a new Case management Conference date in its Order addressing the pending Motion to dismiss. December 21, 2010 Dated: _________________________ JAMES WARE United States District Court Judge

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STIPULATION AND [PROPOSED] ORDER VACATING DISCOVERY DATES AND CONTINUING MOTION TO DISMISS