Cullen v. Netflix, Inc.

Filing 36

STIPULATION AND ORDER AS MODIFIED BY THE COURT CONTINUING MOTION HEARING AND CASE MANAGEMENT CONFERENCE re 34 Stipulation. Set/Reset Deadlines as to: 31 MOTION to Dismiss Second Amended Complaint : Motion Hearing set for 1/6/2012 09:00 AM in Courtroom 1, 5th Floor, San Jose before Hon. Edward J. Davila. Case Management Conference set for 1/6/2012 10:00 AM in Courtroom 1, 5th Floor, San Jose. Signed by Judge Edward J. Davila on 11/23/2011. (ecg, COURT STAFF) (Filed on 11/23/2011)

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Attorneys for Defendant
NETFLIX, INC.

UNIT
ED

DONALD CULLEN and
the Putative Class

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

ERED
O ORD D
IT IS S
DIFIE
AS MO

NO

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DONALD CULLEN, on behalf of himself and
all others similarly situated,

Case No.

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J u d ge E

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a rd J . D

avila

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ISTRIC
ES D
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Attorneys for Plaintiff T

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FO

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GREGORY S. WESTON (No. 239944)
JACK FITZGERALD (No. 257370)
MELANIE PERSINGER (No. 275423)
THE WESTON FIRM
1405 Morena Boulevard, Suite 201
San Diego, California 92110
Telephone: [phone]
Facsimile:
480.247.4553
Email:
[e-mail]
[e-mail]
[e-mail]

LI

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DAVID F. MCDOWELL (No. 125806)
JACOB M. HARPER (No. 259463)
MORRISON & FOERSTER LLP
555 West Fifth Street, Suite 3500
Los Angeles, California 90013-1024
Telephone: [phone]
Facsimile:
213.892.5454
Email:
[e-mail]
[e-mail]

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5:11-cv-01199-EJD

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Plaintiff,

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STIPULATION TO CONTINUE CASE
MANAGEMENT CONFERENCE AND
HEARING ON DEFENDANT’S
MOTION TO DISMISS THE SECOND
AMENDED COMPLAINT BY ONE
WEEK; DECLARATION OF DAVID F.
McDOWELL

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[L. R. 6-2, 7-12]

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Current Date:

December 2, 2011

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Proposed Date:
Time:
Judge:
Courtroom:

December 9, 2011
10:00 a.m.
Hon. Edward J. Davila
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v.
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NETFLIX, INC.,
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Defendant.

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CULLEN V. NETFLIX, INC., CASE NO. 5:11-cv-01199-EJD

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STIP. TO CONTINUE MTD HEARING AND CMC

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STIPULATION AND [PROPOSED] ORDER

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Plaintiff Donald Cullen (“Plaintiff”) and defendant Netflix, Inc. (“Defendant”) (together,

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the “Parties”) hereby submit the following stipulated request to continue the case management

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conference and hearing on Defendant’s Motion to Dismiss the Second Amended Complaint by

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one week from December 2, 2011 to December 9, 2011:

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WHEREAS —

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1.

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On September 5, 2011, Plaintiff filed his Second Amended Complaint (Dkt.

No. 26);

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2.

On October 5, 2011, Defendant filed its Motion to Dismiss the Second Amended

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Complaint (Dky. No. 31), with the hearing noticed for December 2, 2011 per prior stipulation and

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order (Dkt. No. 24);

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3.

Because of an unavoidable court-ordered mandatory settlement conference in

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another case in the Southern District of Ohio, counsel for Netflix will be unable to attend the

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hearing and case management conference currently scheduled in this matter for December 2,

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2011. As explained more fully in the attached Declaration of David F. McDowell, counsel for

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Netflix has attempted to change, but cannot, the date of the conflicting settlement conference;

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4.

The Parties respectfully request a modest one-week continuance of the conference

hearing date to December 9, 2011;

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5.

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this matter.

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Netflix has not previously requested a continuance of any hearing or conference in

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CULLEN V. NETFLIX, INC., CASE NO. 5:11-cv-01199-EJD

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STIP. TO CONTINUE MTD HEARING AND CMC

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WHEREFORE, THE PARTIES HEREBY STIPULATE that the case management

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conference and hearing on Netflix’s Motion to Dismiss the Second Amended Complaint be

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continued by one week from December 2, 2011, to December 9, 2011.

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IT IS SO STIPULATED:

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DAVID F. MCDOWELL
JACOB M. HARPER
MORRISON & FOERSTER LLP

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By:

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Dated:

November 21, 2011

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Dated:

November 21, 2011

/s/ David F. McDowell
David F. McDowell
Attorneys for Defendant
NETFLIX, INC.

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GREGORY S. WESTON
JACK FITZGERALD

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By:

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/s/ Jack Fitzgerald
Jack Fitzgerald
Attorneys for Plaintiff
DONALD CULLEN

IT IS SO ORDERED
The Hearing and Case Management Conference are continued to January 6, 2012 at 9:00 AM
IT AM respectively.
and 10:00IS SO ORDERED:
Dated:
November __, 2011
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By:
Hon. Edward J. Davila
UNITED STATES DISTRICT JUDGE

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CULLEN V. NETFLIX, INC., CASE NO. 5:11-cv-01199-EJD

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STIP. TO CONTINUE MTD HEARING AND CMC

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DECLARATION OF DAVID F. McDOWELL
I, David F. McDowell, state and declare:

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1.

I am a partner with Morrison & Foerster LLP, counsel of record for defendant

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Netflix, Inc. (“Defendant”) in the above captioned matter, and am a member in good standing of

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the State Bar of California. I submit this declaration in support of the parties’ Stipulation to

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Continue the Case Management Conference and Defendant’s Motion to Dismiss the Second

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Amended Complaint by One Week. I have personal knowledge of the statements set forth below,

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which are true and correct to the best of my knowledge, and I could and would testify to them.

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2.

I have been ordered to engage in a mandatory settlement conference in Ehlers v.

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Restoration Hardware, Inc., S.D. Ohio Case No. 2:10-cv-01147, by December 5, 2011. Because

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of the number of parties and individuals involved, it has been extraordinarily difficult to schedule

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a date for this conference, and the only date available for the other parties and counsel to comply

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with the Court’s deadline is December 2, 2011. That date, however, creates a direct conflict with

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the case management conference and motion to dismiss hearing in this matter.

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3.

continuance of the Court’s December 5 deadline.

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I have been unable to reschedule the mandatory settlement conference or obtain a

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Counsel for plaintiff Donald Cullen (“Plaintiff”) has agreed to continue the case

management conference and hearing in this matter to December 9, 2011.

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5.

I respectfully request, therefore, a modest one-week continuance from December

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2, 2011, to December 9, 2011, for the scheduled case management conference and hearing on

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Defendant’s motion to dismiss. I request this continuance in the interests of justice and believe

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this modest continuance would not unduly delay this matter.

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6.

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I declare under penalty of perjury that, to the best of my knowledge, the foregoing

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Counsel has not previously sought a continuance of any hearing in this matter.

statements are true and correct. Executed on November 21, 2011, in Los Angeles, California.

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/s/ David F. McDowell
David F. McDowell
1149784

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CULLEN V. NETFLIX, INC., CASE NO. 5:11-cv-01199-EJD

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STIP. TO CONTINUE MTD HEARING AND CMC