Steiner v. Carrier IQ, Inc

Filing 10

STIPULATION AND ORDER GRANTING CONTINUANCE OF TIME FOR DEFENDANT TO RESPOND TO COMPLAINT as to Carrier IQ, Inc re 9 Stipulation. Signed by Judge Edward J. Davila on 12/21/2011. (ecg, COURT STAFF) (Filed on 12/21/2011)

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RODGER R. COLE (CSB No. 178865)
[e-mail]
MOLLY R. MELCHER (CSB No. 272950)
[e-mail]
FENWICK & WEST LLP
Silicon Valley Center
801 California Street
Mountain View, CA 94041
Telephone: [phone]
Facsimile: 650.938.5200

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TYLER G. NEWBY (CSB No. 205790)
[e-mail]
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: 415.281.1350
Attorneys for Defendant
Carrier IQ, Inc.

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UNITED STATES DISTRICT COURT

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ATTORNEYS AT LAW

F ENWICK & W EST LLP

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ERIC STEINER, individually and on behalf of
all others similarly situated,

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Plaintiffs,

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v.

Case No.: CV-11-05802
STIPULATION RE CONTINUANCE
OF TIME FOR DEFENDANT TO
RESPOND TO COMPLAINT AND
[PROPOSED] ORDER EXTENDING
TIME TO RESPOND TO COMPLAINT

CARRIER IQ, a Delaware corporation,
Defendant.

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WHEREAS the above-referenced plaintiffs filed the above-captioned case;
WHEREAS the above-referenced plaintiffs allege violations of the Federal Wiretap Act
and other laws by the defendants in this case;
WHEREAS over 50 other complaints have been filed to-date in federal district courts
throughout the United States by plaintiffs purporting to bring class actions on behalf of cellular
telephone and other device users on whose devices software made by defendant Carrier IQ, Inc. is

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STIP RE CONTINUANCE OF TIME FOR
DEF. TO RESPOND TO COMPLAINT

CV-11-05802

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or has been embedded (collectively, including the above-captioned matter, the “CIQ cases”);

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WHEREAS, a motion is pending before the Judicial Panel on Multidistrict Litigation to

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transfer the CIQ cases to this jurisdiction for coordinated and consolidated pretrial proceedings

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pursuant to 28 U.S.C. Sec. 1407, responses to the motion supporting coordination or

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consolidation have been filed, and plaintiffs and defendants anticipate that additional responses

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will be filed;
WHEREAS plaintiffs anticipate the possibility of one or more consolidated amended

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complaints in the CIQ cases;
WHEREAS plaintiffs and defendant Carrier IQ have agreed that an orderly schedule for

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any response to the pleadings in the CIQ cases would be more efficient for the parties and for the

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Court;

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F ENWICK & W EST LLP

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WHEREAS plaintiffs agree that the deadline for defendant Carrier IQ to answer, move, or

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otherwise respond to their complaint shall be extended until the earliest of the following dates: (1)

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forty-five days after the filing of a consolidated amended complaint in the CIQ cases; or (2) forty-

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five days after plaintiffs provide written notice to defendants that plaintiffs do not intend to file a

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consolidated amended complaint; or (3) as otherwise ordered by this Court or the MDL transferee

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court; provided, however, that in the event that Carrier IQ should agree to an earlier response date

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in any of these cases, Carrier IQ will respond to the complaint in the above-captioned action on

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that earlier date;

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WHEREAS plaintiffs further agree that this extension is available, without further

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stipulation with counsel for plaintiffs, to all named defendants who notify plaintiffs in writing of

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their intention to join this Stipulation;

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WHEREAS this Stipulation does not constitute a waiver by Carrier IQ of any defense,

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including but not limited to the defenses of lack of personal jurisdiction, subject matter

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jurisdiction, improper venue, sufficiency of process or service of process;

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WHEREAS, with respect to any defendant joining the Stipulation, this Stipulation does

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not constitute a waiver of any defense, including but not limited to the defenses of lack of

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personal jurisdiction, subject matter jurisdiction, improper venue, sufficiency of process, or
STIP RE CONTINUANCE OF TIME FOR
DEF. TO RESPOND TO COMPLAINT

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CV-11-05802

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service of process; and

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WHEREAS, plaintiffs and defendant Carrier IQ, as well as any defendant joining this

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Stipulation, agree that preservation of evidence in the CIQ cases is vital, that defendants have

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received litigation hold letters, that they are complying with and will continue to comply with all

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of their evidence preservation obligations under governing law, and that that the delay brought

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about by this Stipulation should not result in the loss of any evidence,

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Now, therefore, pursuant to Civil Local Rule 7-12, plaintiffs in the above-referenced case

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and defendant Carrier IQ, by and through their respective counsel of record, hereby stipulate as

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follows:

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1. The deadline for Carrier IQ to answer, move, or otherwise respond to plaintiffs’

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complaint shall be extended until the earliest of the following dates: forty-five days after the filing

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F ENWICK & W EST LLP

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of a consolidated amended complaint in these cases; or forty-five days after plaintiffs provide

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written notice to defendant Carrier IQ that plaintiffs do not intend to file a Consolidated Amended

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Complaint; or as otherwise ordered by this Court or the MDL transferee court; provided,

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however, that in the event that Carrier IQ should agree to an earlier response date in any of these

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cases, except by court order, Carrier IQ will respond to the complaint in the above-captioned case

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on that earlier date.

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2. This extension is available, without further stipulation with counsel for plaintiffs,

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to all named defendants who notify plaintiffs in writing of their intention to join this Stipulation;

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3. This Stipulation does not constitute a waiver by Carrier IQ or any other named

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defendant joining the Stipulation of any defense, including but not limited to the defenses of lack

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of personal jurisdiction, subject matter jurisdiction, improper venue, sufficiency of process, or

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service of process.

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4. As a condition of entry into this Stipulation, defendant Carrier IQ and any other

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defendant(s) joining this Stipulation, and the plaintiffs, agree that they are complying with and

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will continue to comply with all evidentiary preservation obligations under governing law.

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STIP RE CONTINUANCE OF TIME FOR
DEF. TO RESPOND TO COMPLAINT

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CV-11-05802

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IT IS SO STIPULATED.

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DATED: December 20, 2011

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By /s/ Paul R. Kiesel
Paul R. Kiesel (119854)
KIESEL BOUCHER LARSON LLP
8648 Wilshire Boulevard
Beverly Hills, CA 90211
Ph: [phone]
Fax: [phone]
[e-mail]

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HORWITZ, HORWITZ & PARADIS
570 Seventh Avenue, 20th Floor
New York, NY 10018
Ph: [phone]
Fax: [phone]

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Attorneys for Plaintiff

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ATTORNEYS AT LAW

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F ENWICK & W EST LLP

KIESEL BOUCHER LARSON LLP

FENWICK & WEST LLP

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By /s/ Tyler G. Newby
TYLER G. NEWBY (CSB No. 205790)
555 California Street, 12th Floor
San Francisco, CA 94104
Ph: [phone]
Fax: [phone]
[e-mail]

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RODGER R. COLE (CSB No. 178865)
MOLLY R. MELCHER (CSB No. 272950)
FENWICK & WEST LLP
801 California Street
Mountain View, CA 94041
Ph: [phone]
Fax: [phone]
[e-mail]

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Attorneys for Defendant Carrier IQ, Inc.

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STIP RE CONTINUANCE OF TIME FOR
DEF. TO RESPOND TO COMPLAINT

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CV-11-05802

[PROPOSED] ORDER

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Pursuant to stipulation, it is SO ORDERED.

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Dated: December 21, 2011

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Honorable Edward J. Davila
United States District Judge

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F ENWICK & W EST LLP

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STIP RE CONTINUANCE OF TIME FOR
DEF. TO RESPOND TO COMPLAINT

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CV-11-05802

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CERTIFICATION

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I, Tyler G. Newby, am the ECF User whose identification and password are being

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used to file this STIPULATION AND [PROPOSED] ORDER RE: CONTINUANCE OF

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TIME FOR DEFENDANT TO RESPOND TO COMPLAINT. In compliance with General

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Order 45.X.B, I hereby attest that Paul R. Kiesel has concurred in this filing.

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DATED: December 20, 2011

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By /s/ Tyler G. Newby
TYLER G. NEWBY (CSB No. 205790)
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Ph: [phone]
Fax: [phone]
[e-mail]

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ATTORNEYS AT LAW

F ENWICK & W EST LLP

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25143/00401/SF/5370821.1

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STIP RE CONTINUANCE OF TIME FOR
DEF. TO RESPOND TO COMPLAINT

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CV-11-05802