Massey v. Carrier IQ, Inc

Filing 7

STIPULATION AND ORDER RE 6 (MODIFIED BY THE COURT). Signed by Magistrate Judge Howard R. Lloyd on 1/9/12. (hrllc1, COURT STAFF) (Filed on 1/9/2012)

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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 ** E-filed January 9, 2012 ** 6 7 8 9 10 11 TYLER G. NEWBY (CSB No. 205790) tnewby@fenwick.com JENNIFER J. JOHNSON (CSB No. 252897) jjjohnson@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. MOUNTAIN VIEW ATTORNEYS AT LAW F ENWICK & W EST LLP 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 SAN JOSE DIVISION 15 16 17 DANIEL MASSEY, individually and on behalf of all others similarly situated, 18 Plaintiffs, 19 20 21 v. CARRIER IQ, a Delaware corporation, Case No.: CV-11-06279 STIPULATION RE CONTINUANCE OF TIME FOR DEFENDANT TO RESPOND TO COMPLAINT AND [PROPOSED] ORDER EXTENDING TIME TO RESPOND TO COMPLAINT (MODIFIED BY THE COURT) Defendant. 22 23 24 25 26 27 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 28 STIP RE CONTINUANCE OF TIME FOR DEF. TO RESPOND TO COMPLAINT CV-11-06279 1 telephone and other device users on whose devices software made by defendant Carrier IQ, Inc. is 2 or has been embedded (collectively, including the above-captioned matter, the “CIQ cases”); 3 WHEREAS, a motion is pending before the Judicial Panel on Multidistrict Litigation to 4 transfer the CIQ cases to this jurisdiction for coordinated and consolidated pretrial proceedings 5 pursuant to 28 U.S.C. Sec. 1407, responses to the motion supporting coordination or 6 consolidation have been filed, and plaintiffs and defendants anticipate that additional responses 7 will be filed; WHEREAS plaintiffs anticipate the possibility of one or more consolidated amended 8 9 complaints in the CIQ cases; WHEREAS plaintiffs and defendant Carrier IQ have agreed that an orderly schedule for 10 MOUNTAIN VIEW ATTORNEYS AT LAW any response to the pleadings in the CIQ cases would be more efficient for the parties and for the 12 F ENWICK & W EST LLP 11 Court; 13 WHEREAS plaintiffs agree that the deadline for defendant Carrier IQ to answer, move, or 14 otherwise respond to their complaint shall be extended until the earliest of the following dates: (1) 15 forty-five days after the filing of a consolidated amended complaint in the CIQ cases; or (2) forty- 16 five days after plaintiffs provide written notice to defendants that plaintiffs do not intend to file a 17 consolidated amended complaint; or (3) as otherwise ordered by this Court or the MDL transferee 18 court; provided, however, that in the event that Carrier IQ should agree to an earlier response date 19 in any of these cases, Carrier IQ will respond to the complaint in the above-captioned action on 20 that earlier date; 21 WHEREAS plaintiffs further agree that this extension is available, without further 22 stipulation with counsel for plaintiffs, to all named defendants who notify plaintiffs in writing of and the court their intention to join this Stipulation; 23 24 WHEREAS this Stipulation does not constitute a waiver by Carrier IQ of any defense, 25 including but not limited to the defenses of lack of personal jurisdiction, subject matter 26 jurisdiction, improper venue, sufficiency of process or service of process; 27 28 WHEREAS, with respect to any defendant joining the Stipulation, this Stipulation does not constitute a waiver of any defense, including but not limited to the defenses of lack of STIP RE CONTINUANCE OF TIME FOR DEF. TO RESPOND TO COMPLAINT 2 CV-11-06279 1 personal jurisdiction, subject matter jurisdiction, improper venue, sufficiency of process, or 2 service of process; and 3 WHEREAS, plaintiffs and defendant Carrier IQ, as well as any defendant joining this 4 Stipulation, agree that preservation of evidence in the CIQ cases is vital, that defendants have 5 received litigation hold letters, that they are complying with and will continue to comply with all 6 of their evidence preservation obligations under governing law, and that that the delay brought 7 about by this Stipulation should not result in the loss of any evidence, 8 9 10 11 Now, therefore, pursuant to Civil Local Rule 7-12, plaintiffs in the above-referenced case and defendant Carrier IQ, by and through their respective counsel of record, hereby stipulate as follows: 1. The deadline for Carrier IQ to answer, move, or otherwise respond to plaintiffs’ MOUNTAIN VIEW ATTORNEYS AT LAW F ENWICK & W EST LLP 12 complaint shall be extended until the earliest of the following dates: forty-five days after the filing 13 of a consolidated amended complaint in these cases; or forty-five days after plaintiffs provide 14 written notice to defendant Carrier IQ that plaintiffs do not intend to file a Consolidated Amended 15 Complaint; or as otherwise ordered by this Court or the MDL transferee court; provided, 16 however, that in the event that Carrier IQ should agree to an earlier response date in any of these 17 cases, except by court order, Carrier IQ will respond to the complaint in the above-captioned case 18 on that earlier date. 19 2. This extension is available, without further stipulation with counsel for plaintiffs, 20 to all named defendants who notify plaintiffs in writing of their intention to join this Stipulation; 21 3. This Stipulation does not constitute a waiver by Carrier IQ or any other named 22 defendant joining the Stipulation of any defense, including but not limited to the defenses of lack 23 of personal jurisdiction, subject matter jurisdiction, improper venue, sufficiency of process, or 24 service of process. 25 4. As a condition of entry into this Stipulation, defendant Carrier IQ and any other 26 defendant(s) joining this Stipulation, and the plaintiffs, agree that they are complying with and 27 will continue to comply with all evidentiary preservation obligations under governing law. 28 STIP RE CONTINUANCE OF TIME FOR DEF. TO RESPOND TO COMPLAINT 3 CV-11-06279 1 IT IS SO STIPULATED. 2 DATED: December 29, 2011 3 By /s/ Paul R. Kiesel Paul R. Kiesel (119854) KIESEL BOUCHER LARSON LLP 8648 Wilshire Boulevard Beverly Hills, CA 90211 Ph: (310) 854-4444 Fax: (310) 854-0812 kiesel@kbla.com 4 5 6 7 8 HORWITZ, HORWITZ & PARADIS 570 Seventh Avenue, 20th Floor New York, NY 10018 Ph: (212) 986-4500 Fax: (212) 986-4501 9 10 11 Attorneys for Plaintiff MOUNTAIN VIEW ATTORNEYS AT LAW 12 F ENWICK & W EST LLP KIESEL BOUCHER LARSON LLP FENWICK & WEST LLP 13 By /s/ Tyler G. Newby Tyler G. Newby (CSB No. 205790) tnewby@fenwick.com Jennifer J. Johnson (CSB No. 252897) jjjohnson@fenwick.com 555 California Street, 12th Floor San Francisco, CA 94104 Ph: (415) 875-2300 Fax: (415) 281-1350 14 15 16 17 18 19 24 Rodger R. Cole (CSB NO. 178865) rcole@fenwick.com Molly R. Melcher (CSB NO. 272950) mmelcher@fenwick.com Silicon Valley Center 801 California Street Mountain View, CA 94041 Ph: 650.988.8500 Fax: 650.938.5200 25 Attorneys for Defendant Carrier IQ, Inc. 20 21 22 23 26 27 28 STIP RE CONTINUANCE OF TIME FOR DEF. TO RESPOND TO COMPLAINT 4 CV-11-06279 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 Paul R. Kiesel has concurred in this filing. 6 DATED: December 29, 2011 7 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/5371763.1 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 5 CV-11-06279 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 11 TYLER G. NEWBY (CSB No. 205790) tnewby@fenwick.com JENNIFER J. JOHNSON (CSB No. 252897) jjjohnson@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. MOUNTAIN VIEW ATTORNEYS AT LAW F ENWICK & W EST LLP 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 SAN JOSE DIVISION 15 16 17 DANIEL MASSEY, individually and on behalf of all others similarly situated, 18 Plaintiffs, 19 20 21 v. CARRIER IQ, a Delaware corporation, Case No.: CV-11-06279 [PROPOSED] ORDER GRANTING STIPULATION RE CONTINUANCE OF TIME FOR DEFENDANT TO RESPOND TO COMPLAINT AND [PROPOSED] ORDER EXTENDING TIME TO RESPOND TO COMPLAINT Defendant. 22 23 Pursuant to stipulation, it is SO ORDERED. 24 25 Dated: January 9, 2012 26 Honorable Edward J. Davila United States District Judge Howard R. Lloyd United States Magistrate Judge 27 28 [PROPOSED] ORDER CV-11-06279

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