Noll v. eBay, Inc et al

Filing 86

ORDER GRANTING 85 STIPULATION WITH PROPOSED ORDER REGARDING DISMISSAL OF RELATED CASE filed by Richard Noll, Rhythm Motor Sports, LLC, eBay, Inc. The Parties agree and request that the Court enter an order that the running of any ap plicable statute of limitations shall be considered tolled as of no later than July 10, 2012. This stipulation is without prejudice to the Parties' respective positions regarding whether the statutes of limitations governing Rhythm's claims were tolled prior to July 10, 2012, or whether the assertion of Rhythm's claims relates back to a date prior to July 10, 2012, and the Parties expressly reserve their rights regarding such issues. Any issues regarding the tolling of limitations or the relation back of Rhythm's claims prior to July 10, 2012, shall be subsequently presented to the Court by the Parties when such a determination becomes necessary and appropriate. Signed by Judge Edward J. Davila on 9/24/2012. (ecg, COURT STAFF) (Filed on 9/24/2012)

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KEITH R. VERGES ([e-mail])
PARKER D. YOUNG ([e-mail])
RAYMOND E. WALKER ([e-mail]
FIGARI & DAVENPORT, L.L.P.
901 Main Street, Suite 3400
Dallas, Texas 75202
Tel: [phone]
Fax: [phone]
(Admitted Pro Hac Vice)
SHAWN T. LEUTHOLD
([e-mail])
LAW OFFICE OF SHAWN T. LEUTHOLD
1671 The Alameda #303
San Jose, California 95126
Tel: [phone]
Fax: [phone]

VERA BROOKS
([e-mail])
THOMPSON & BROOKS
412 E. Madison Street, Suite 900
Tampa, Florida 33602
Tel: [phone]
Fax: [phone]
(Admitted Pro Hac Vice)

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ATTORNEYS FOR PLAINTIFF
RICHARD NOLL

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IN THE UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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RICHARD NOLL, Individually and on
behalf of all others similarly situated,
Plaintiff,

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v.

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EBAY INC.,

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Defendant.

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CASE NO. 5:11-CV-04585-EJD
XXXXXXXX
STIPULATION AND [PROPOSED]
ORDER REGARDING DISMISSAL OF
RELATED CASE
Judge:
Courtroom:
Trial Date:

Hon. Edward J. Davila
4, 5th Floor
Not yet set

This Stipulation is entered into pursuant to Local Rule 7-12, by and between Plaintiffs
Richard Noll (“Noll”) and Rhythm Motor Sports, LLC (“Rhythm”) and Defendant eBay Inc.
(“eBay”) (collectively, the “Parties”), by and through the respective undersigned counsel.

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STIPULATION AND [PROPOSED] ORDER REGARDING DISMISSAL OF RELATED CASE
CASE NO. 5:11-CV-04585-EJD

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WHEREAS, on July 10, 2012, Rhythm filed its Notice of Motion and Motion to

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Intervene, for Joinder and/or for Substitution Pro Tanto (“Motion to Intervene”) [Doc. No. 69]

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and simultaneously filed a separate lawsuit against eBay styled Rhythm Motor Sports, LLC v.

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eBay Inc., Cause No. CV12-03601 PJH, in the United States District Court for the Northern

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District of California (the “Separate Rhythm Lawsuit”);
WHEREAS, on September 4, 2012, the Court entered an Order [Doc. No. 83] granting
the Motion to Intervene;

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WHEREAS, on September 18, 2012, Rhythm filed its Original Class Action Complaint

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in Intervention herein asserting the same claims that Rhythm has asserted in the Separate

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Rhythm Lawsuit;

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WHEREAS, the Parties agree that, for purposes of judicial economy and efficiency,
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Rhythm’s claims should be litigated in this Action, rather than the Separate Rhythm Lawsuit;

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WHEREAS, although the Parties disagree as to whether Rhythm’s claims and the claims

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of the class it proposes to represent relate back to a date prior to July 10, 2012, for purposes of

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the applicable statutes of limitations, the Parties nevertheless agree that all applicable statutes of

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limitations governing such claims were fully and properly tolled as of the filing of the Separate

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Rhythm Lawsuit on July 10, 2012;

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WHEREAS, the Parties agree that if Rhythm voluntarily dismisses the Separate Rhythm
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Lawsuit, Rhythm’s ability to pursue its claims in this case should be the same as if it were

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asserting those claims within the Separate Rhythm Lawsuit and that the statutes of limitations

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governing Rhythm’s claims and the claims of the class asserted herein should therefore be

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deemed to have been tolled effective no later than July 10, 2012;

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STIPULATION AND [PROPOSED] ORDER REGARDING DISMISSAL OF RELATED CASE
CASE NO. 5:11-CV-04585-EJD

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WHEREAS, in order to facilitate the dismissal of the Separate Rhythm Lawsuit, the

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Parties wish to set forth their agreement regarding the applicability of any statute of limitations

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defenses to Rhythm’s claims:

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NOW THEREFORE, for purposes of any statute of limitations defense that may be

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asserted with respect to the claims asserted by Rhythm or the class it proposes to represent

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herein, the Parties agree and request that the Court enter an order that the running of any

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applicable statute of limitations shall be considered tolled as of no later than July 10, 2012. This

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stipulation is without prejudice to the Parties’ respective positions regarding whether the statutes

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of limitations governing Rhythm’s claims were tolled prior to July 10, 2012, or whether the

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assertion of Rhythm’s claims relates back to a date prior to July 10, 2012, and the Parties

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expressly reserve their rights regarding such issues.

Any issues regarding the tolling of

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limitations or the relation back of Rhythm’s claims prior to July 10, 2012, shall be subsequently

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presented to the Court by the Parties when such a determination becomes necessary and

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appropriate.

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IT IS SO STIPULATED.
Dated: September 20, 2012.

FIGARI & DAVENPORT, LLP
/s/ Keith R. Verges
Keith R. Verges
Attorneys for Plaintiff RICHARD NOLL

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Dated: September 20, 2012.

COOLEY LLP
/s/ Whitty Somvichian
Whitty Somvichian
Attorneys for Defendant EBAY INC.

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STIPULATION AND [PROPOSED] ORDER REGARDING DISMISSAL OF RELATED CASE
CASE NO. 5:11-CV-04585-EJD

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Additional attorneys:

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FIGARI & DAVENPORT, L.L.P.
Parker D. Young ([e-mail])
Raymond E. Walker ([e-mail]
901 Main Street, Suite 3400
Dallas, Texas 75202
Tel: [phone]
Fax: [phone]
(Admitted Pro Hac Vice)

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LAW OFFICE OF SHAWN T. LEUTHOLD
Shawn T. Leuthold ([e-mail])
1671 The Alameda #303
San Jose, California 95126
Telephone: [phone]
Facsimile: [phone]

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THOMPSON & BROOKS
Vera Brooks ([e-mail])
412 E. Madison Street, Suite 900
Tampa, Florida 33602
Telephone: [phone]
Facsimile: [phone]
(Admitted Pro Hac Vice)

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PURSUANT TO STIPULATION IT IS SO ORDERED:

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9/24/2012
Dated:________________________

____________________________________
UNITED STATES DISTRICT JUDGE

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STIPULATION AND [PROPOSED] ORDER REGARDING DISMISSAL OF RELATED CASE
CASE NO. 5:11-CV-04585-EJD

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FILER’S ATTESTATION:

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Pursuant to General Order No. 45, 5X(B) regarding signatures, I attest under penalty of

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perjury that the concurrence in the filing of this document has been obtained from its signatories.

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/s/ Keith R. Verges
Keith R. Verges
Attorneys for Plaintiffs RICHARD NOLL and
RHYTHM MOTOR SPORTS LLC

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CERTIFICATE OF SERVICE
I hereby certify that all counsel of record will be served with a copy of this document via
the Court’s CM/ECF system pursuant to the local rules of this Court on this 20th day of

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September, 2012.
/s/ Keith R. Verges
Keith R. Verges
Attorneys for Plaintiffs RICHARD NOLL and
RHYTHM MOTOR SPORTS, LLC

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STIPULATION AND [PROPOSED] ORDER REGARDING DISMISSAL OF RELATED CASE
CASE NO. 5:11-CV-04585-EJD

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