Kenny et al v. Carrier IQ, Inc et al

Filing 25

STIPULATION AND ORDER Granting Request to Continue Defendant's Time to Respond to Complaint by Carrier IQ, Inc. re 23 Stipulation. Signed by Judge Edward J. Davila on 12/21/2011. (ecg, COURT STAFF) (Filed on 12/21/2011)

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1 2 3 4 5 RODGER R. COLE (CSB No. 178865) rcole@fenwick.com MOLLY R. MELCHER (CSB No. 272950) mmelcher@fenwick.com FENWICK & WEST LLP Silicon Valley Center 801 California Street Mountain View, CA 94041 Telephone: 650.988.8500 Facsimile: 650.938.5200 6 7 8 9 10 TYLER G. NEWBY (CSB No. 205790) tnewby@fenwick.com 555 California Street, 12th Floor San Francisco, CA 94104 Telephone: 415.875.2300 Facsimile: 415.281.1350 Attorneys for Defendant Carrier IQ, Inc. 11 UNITED STATES DISTRICT COURT MOUNTAIN VIEW ATTORNEYS AT LAW F ENWICK & W EST LLP 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN JOSE DIVISION 14 15 16 17 PATRICK KENNY, an Arizona resident, JUSTIN SHARP, a California resident, JEREMY FEITELSON, an Iowa resident, and GREG FEITELSON, a Kentucky resident, on behalf of themselves and all others similarly situated, 18 19 20 21 22 23 Plaintiffs, Case No.: 11-CV-05774-EJD STIPULATION RE CONTINUANCE OF TIME FOR DEFENDANT TO RESPOND TO COMPLAINT AND [PROPOSED] ORDER EXTENDING TIME TO RESPOND TO COMPLAINT v. CARRIER IQ, a Delaware corporation; HTC CORPORATION, a Taiwanese company; HTC AMERICA, INC., a Washington corporation; and SAMSUNG ELECTRONICS CO., LTD., a Korean company, Defendants. 24 25 26 WHEREAS the above-referenced plaintiffs filed the above-captioned case; 27 WHEREAS the above-referenced plaintiffs allege violations of the Federal Wiretap Act 28 and other laws by the defendants in this case; STIP RE CONTINUANCE OF TIME FOR DEF. TO RESPOND TO COMPLAINT 11-CV-05774-EJD WHEREAS over 50 other complaints have been filed to-date in federal district courts 1 2 throughout the United States by plaintiffs purporting to bring class actions on behalf of cellular 3 telephone and other device users on whose devices software made by defendant Carrier IQ, Inc. is 4 or has been embedded (collectively, including the above-captioned matter, the “CIQ cases”); 5 WHEREAS, a motion is pending before the Judicial Panel on Multidistrict Litigation to 6 transfer the CIQ cases to this jurisdiction for coordinated and consolidated pretrial proceedings 7 pursuant to 28 U.S.C. Sec. 1407, responses to the motion supporting coordination or 8 consolidation have been filed, and plaintiffs and defendants anticipate that additional responses 9 will be filed; WHEREAS plaintiffs anticipate the possibility of one or more consolidated amended 10 11 complaints in the CIQ cases; WHEREAS plaintiffs and defendant Carrier IQ have agreed that an orderly schedule for MOUNTAIN VIEW ATTORNEYS AT LAW F ENWICK & W EST LLP 12 13 any response to the pleadings in the CIQ cases would be more efficient for the parties and for the 14 Court; 15 WHEREAS plaintiffs agree that the deadline for defendant Carrier IQ to answer, move, or 16 otherwise respond to their complaint shall be extended until the earliest of the following dates: (1) 17 forty-five days after the filing of a consolidated amended complaint in the CIQ cases; or (2) forty- 18 five days after plaintiffs provide written notice to defendants that plaintiffs do not intend to file a 19 consolidated amended complaint; or (3) as otherwise ordered by this Court or the MDL transferee 20 court; provided, however, that in the event that Carrier IQ should agree to an earlier response date 21 in any of these cases, Carrier IQ will respond to the complaint in the above-captioned action on 22 that earlier date; 23 WHEREAS plaintiffs further agree that this extension is available, without further 24 stipulation with counsel for plaintiffs, to all named defendants who notify plaintiffs in writing of 25 their intention to join this Stipulation; 26 WHEREAS this Stipulation does not constitute a waiver by Carrier IQ of any defense, 27 including but not limited to the defenses of lack of personal jurisdiction, subject matter 28 jurisdiction, improper venue, sufficiency of process or service of process; STIP RE CONTINUANCE OF TIME FOR DEF. TO RESPOND TO COMPLAINT 2 11-CV-05774-EJD 1 WHEREAS, with respect to any defendant joining the Stipulation, this Stipulation does 2 not constitute a waiver of any defense, including but not limited to the defenses of lack of 3 personal jurisdiction, subject matter jurisdiction, improper venue, sufficiency of process, or 4 service of process; and 5 WHEREAS, plaintiffs and defendant Carrier IQ, as well as any defendant joining this 6 Stipulation, agree that preservation of evidence in the CIQ cases is vital, that defendants have 7 received litigation hold letters, that they are complying with and will continue to comply with all 8 of their evidence preservation obligations under governing law, and that that the delay brought 9 about by this Stipulation should not result in the loss of any evidence, 10 Now, therefore, pursuant to Civil Local Rule 7-12, plaintiffs in the above-referenced case MOUNTAIN VIEW ATTORNEYS AT LAW and defendant Carrier IQ, by and through their respective counsel of record, hereby stipulate as 12 F ENWICK & W EST LLP 11 follows: 13 1. The deadline for Carrier IQ to answer, move, or otherwise respond to plaintiffs’ 14 complaint shall be extended until the earliest of the following dates: forty-five days after the filing 15 of a consolidated amended complaint in these cases; or forty-five days after plaintiffs provide 16 written notice to defendant Carrier IQ that plaintiffs do not intend to file a Consolidated Amended 17 Complaint; or as otherwise ordered by this Court or the MDL transferee court; provided, 18 however, that in the event that Carrier IQ should agree to an earlier response date in any of these 19 cases, except by court order, Carrier IQ will respond to the complaint in the above-captioned case 20 on that earlier date. 21 2. This extension is available, without further stipulation with counsel for plaintiffs, 22 to all named defendants who notify plaintiffs in writing of their intention to join this Stipulation; 23 3. This Stipulation does not constitute a waiver by Carrier IQ or any other named 24 defendant joining the Stipulation of any defense, including but not limited to the defenses of lack 25 of personal jurisdiction, subject matter jurisdiction, improper venue, sufficiency of process, or 26 service of process. 27 28 STIP RE CONTINUANCE OF TIME FOR DEF. TO RESPOND TO COMPLAINT 3 11-CV-05774-EJD 1 4. As a condition of entry into this Stipulation, defendant Carrier IQ and any other 2 defendant(s) joining this Stipulation, and the plaintiffs, agree that they are complying with and 3 will continue to comply with all evidentiary preservation obligations under governing law. 4 IT IS SO STIPULATED. 5 DATED: December 19, 2011 6 By /s/ Robert Lopez Steve W. Berman, pro hac vice Robert F. Lopez, pro hac vice Thomas E. Loeser (202724) HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 (206) 623-7292 7 8 9 10 11 14 SHANA E. SCARLETT (217895) 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 shanas@hbsslaw.com 15 Attorneys for Plaintiffs and the Proposed Class 16 FENWICK & WEST LLP MOUNTAIN VIEW ATTORNEYS AT LAW 12 F ENWICK & W EST LLP HAGENS BERMAN SOBOL SHAPIRO LLP 13 17 By /s/ Tyler G. Newby TYLER G. NEWBY (CSB No. 205790) 555 California Street, 12th Floor San Francisco, CA 94104 Ph: (415) 875-2300 Fax: (415) 281-1350 tnewby@fenwick.com 18 19 20 21 RODGER R. COLE (CSB No. 178865) MOLLY R. MELCHER (CSB No. 272950) FENWICK & WEST LLP 801 California Street Mountain View, CA 94041 Ph: (650) 988-8500 Fax: (650) 938-5200 rcole@fenwick.com 22 23 24 25 26 Attorneys for Defendant Carrier IQ, Inc. 27 28 STIP RE CONTINUANCE OF TIME FOR DEF. TO RESPOND TO COMPLAINT 4 11-CV-05774-EJD [PROPOSED] ORDER 1 2 Pursuant to stipulation, it is SO ORDERED. 3 4 Dated: December 21, 2011 5 Honorable Edward J. Davila United States District Judge 6 7 8 9 10 11 MOUNTAIN VIEW ATTORNEYS AT LAW F ENWICK & W EST LLP 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIP RE CONTINUANCE OF TIME FOR DEF. TO RESPOND TO COMPLAINT 5 11-CV-05774-EJD 1 CERTIFICATION 2 I, Tyler G. Newby, am the ECF User whose identification and password are being 3 used to file this STIPULATION AND [PROPOSED] ORDER RE: CONTINUANCE OF 4 TIME FOR DEFENDANT TO RESPOND TO COMPLAINT. In compliance with General 5 Order 45.X.B, I hereby attest that Robert Lopez has concurred in this filing. 6 7 DATED: December 19, 2011 8 9 10 By /s/ Tyler G. Newby TYLER G. NEWBY (CSB No. 205790) FENWICK & WEST LLP 555 California Street, 12th Floor San Francisco, CA 94104 Ph: (415) 875-2300 Fax: (415) 281-1350 tnewby@fenwick.com 11 MOUNTAIN VIEW ATTORNEYS AT LAW F ENWICK & W EST LLP 12 13 25143/00401/SF/5370735.1 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIP RE CONTINUANCE OF TIME FOR DEF. TO RESPOND TO COMPLAINT 6 11-CV-05774-EJD

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