Longaker v. Boston Scientific Corporation

Filing 24

STIPULATION AND ORDER ALLOWING DEFENDANT TO WITHDRAW PENDING MOTION TO DISMISS; FILE A NEW MOTION TO DISMISS; AND CONTINUE THE CASE MANAGEMENT CONFERENCE. (approving 23 ). Signed by Judge Jeremy Fogel on 6/17/2011. (jflc2, COURT STAFF) (Filed on 6/17/2011)

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NELSON LAW GROUP
ROBERT S. NELSON, State Bar No. 220984
DANIELLE L. TIZOL, State Bar No. 259702
900 Cherry Avenue, Suite 300
San Bruno, CA 94066
Tel: [phone]
Fax: [phone]
E-mail:[e-mail]

**E-Filed 6/17/2011**

Attorneys for Plaintiff
DAVID LONGAKER

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MORGAN, LEWIS & BOCKIUS LLP
CECILY A. WATERMAN, Bar No. 063502
ADELMISE ROSEMÉ WARNER, Bar No. 215385
One Market, Spear Street Tower
San Francisco, CA 94105-1126
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

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Attorneys for Defendant
BOSTON SCIENTIFIC CORPORATION

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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DAVID LONGAKER,
Plaintiff,

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vs.

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BOSTON SCIENTIFIC CORPORATION,
Defendant.

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Case No. CV 11-01827 JF
STIPULATION AND -----------------[PROPOSED]
ORDER ALLOWING DEFENDANT
TO WITHDRAW PENDING MOTION
TO DISMISS; FILE A NEW MOTION
TO DISMISS; AND CONTINUE THE
CASE MANAGEMENT
CONFERENCE

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Date:
Time:
Div.:
Judge:

June 17, 2011
9:00 a.m.
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Hon. Jeremy Fogel

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Filed:

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Trial:

March 9, 2011 (removed April
14, 2011)
None set

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

DB2/ 22501416.1

STIP. AND [PROP.] ORDER ALLOWING
DEF. TO WITHDRAW MOTION TO
DISMISS; FILE A NEW MOTION; AND
CONTINUE CMC CV 11-01827 JF

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Plaintiff David Longaker (“Plaintiff”) and Defendant Boston Scientific Corporation

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(“Defendant”), by and through their attorneys of record, hereby submit this Stipulation and

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[Proposed] Order requesting that the Court allow Defendant to withdraw the pending motion to

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dismiss, with the June 17, 2011 hearing date, and file a new motion to dismiss with a new hearing

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date and briefing schedule. The parties also request that the Court continue the July 8, 2011 Case

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Management Conference, pending the Court’s decision on Defendant’s motion to dismiss.

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WHEREAS, on April 27, 2011, Defendant Boston Scientific filed a motion to dismiss the
complaint in its entirety;

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WHEREAS, the hearing on Defendant’s motion is currently set for Friday, June 17, 2011;

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WHEREAS, in opposition to Defendant’s motion, Plaintiff filed a declaration in which he

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made certain factual allegations relative to a petition in bankruptcy previously unknown to

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Defendant when Defendant filed its motion;

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WHEREAS, Defendant has conducted additional factual and legal research to ascertain

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whether, based on Plaintiff’s declaration, there are additional bases for Defendant to move to

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dismiss this action;

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WHEREAS, based on factual and legal research conducted by Defendant, Defendant
believes that it has additional bases to request dismissal of this action;
WHEREAS, rather than having hearing on two separate motions to dismiss, Defendant

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believes, and Plaintiff agrees, that it would be more efficient for Defendant to withdraw the

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current motion and file a new motion to assert the additional bases for dismissing the action, and

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to allow Plaintiff an opportunity to respond; and

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WHEREAS, in light of impending new motion to dismiss, and for reasons of efficiency

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and judicial economy, the parties also request that the Court continue the July 8, 2011 Case

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Management Conference pending a decision by the Court on Defendant’s motion to dismiss.

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

DB2/ 22501277.1

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STIP. AND [PROP.] ORDER ALLOWING
DEF. TO WITHDRAW MOTION TO
DISMISS; FILE A NEW MOTION; AND
CONTINUE CMC CV 11-01827 JF

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NOW THEREFORE, the parties agree and stipulate as follows:

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1.

That the June 17, 2011 hearing on Defendant’s motion be taken off calendar;

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2.

Defendant will file a new motion to dismiss to assert the additional bases it

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believes warrant dismissal of the action;

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3.

The parties request a new hearing date of July 29, 2011;

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4.

Based on the proposed July 29 hearing date, the parties request and agree to a

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briefing schedule as follows:

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a.

Defendant has until June 24, 2011 to file the new motion;

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b.

Plaintiff’s opposition, if any, shall be due no later than July 8;

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c.

Defendant’s reply, if any, shall be due no later than July 15, 2011.

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5.

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The July 8, 2011 Case Management Conference be taken off calendar, pending the
Court’s decision on Defendant’s motion to dismiss.

IT IS SO STIPULATED.

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Dated: June 16, 2011

NELSON LAW GROUP
Robert S. Nelson
Danielle L. Tizol

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By: /s/ Robert S. Nelson
Robert S. Nelson
Attorneys for Plaintiff
DAVID LONGAKER

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Dated: June 16, 2011

MORGAN, LEWIS & BOCKIUS LLP
Adelmise Rosemé Warner
Cecily A. Waterman

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By:/s/ Adelmise R. Warner
Adelmise Rosemé Warner
Attorneys for Defendant
BOSTON SCIENTIFIC CORPORATION

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

DB2/ 22501416.1

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STIP. AND [PROP.] ORDER ALLOWING
DEF. TO WITHDRAW MOTION TO
DISMISS; FILE A NEW MOTION; AND
CONTINUE CMC CV 11-01827 JF

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------------------- ORDER
[PROPOSED]

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BASED ON THE STIPULATION OF THE PARTIES, THE COURT HEREBY

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ORDERS AS FOLLOWS:

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1.

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calendar;

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2.

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The June 17, 2011 hearing on Defendant’s motion to dismiss is hereby taken off

Defendant has until June 24, 2011 to file the new motion to assert the additional

bases described in the parties’ stipulation;

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3.

Plaintiff’s opposition, if any, to the motion shall be filed no later than July 8;

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4.

Defendant’s reply, if any, shall be filed no later than July 15, 2011;

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5.

The hearing on the motion to dismiss is set for July 29, 2011;

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6.

The July 8, 2011 Case Management Conference is taken off calendar, pending the
Court’s decision on Defendant’s motion to dismiss.

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IT IS SO ORDERED.

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Dated:

6/17/2011

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HON. JEREMY FOGEL
United States District Court Judge

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

DB2/ 22501277.1

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STIP. AND [PROP.] ORDER ALLOWING
DEF. TO WITHDRAW MOTION TO
DISMISS; FILE A NEW MOTION; AND
CONTINUE CMC CV 11-01827 JF