Shumate 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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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

** E-filed January 9, 2012 **

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TYLER G. NEWBY (CSB No. 205790)
[e-mail]
JENNIFER J. JOHNSON (CSB No. 252897)
[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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ATTORNEYS AT LAW

F ENWICK & W EST LLP

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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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EDWARD SHUMATE, individually and on
behalf of all others similarly situated,
Plaintiffs,

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v.
CARRIER IQ, a Delaware corporation,

Case No.: CV-11-06281
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.

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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

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

CV-11-06281

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telephone and other device users on whose devices software made by defendant Carrier IQ, Inc. is

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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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ATTORNEYS AT LAW

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

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F ENWICK & W EST LLP

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Court;

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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
and the court
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
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

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CV-11-06281

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

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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
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’

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F ENWICK & W EST LLP

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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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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-11-06281

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IT IS SO STIPULATED.

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DATED: December 29, 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)
[e-mail]
Jennifer J. Johnson (CSB No. 252897)
[e-mail]
555 California Street, 12th Floor
San Francisco, CA 94104
Ph: [phone]
Fax: [phone]

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Rodger R. Cole (CSB NO. 178865)
[e-mail]
Molly R. Melcher (CSB NO. 272950)
[e-mail]
Silicon Valley Center
801 California Street
Mountain View, CA 94041
Ph: 650.988.8500
Fax: [phone]

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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-11-06281

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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 29, 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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MOUNTAIN VIEW

ATTORNEYS AT LAW

F ENWICK & W EST LLP

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25143/00401/SF/5371770.1

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

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CV-11-06281

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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]
JENNIFER J. JOHNSON (CSB No. 252897)
[e-mail]
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
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

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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EDWARD SHUMATE, individually and on
behalf of all others similarly situated,
Plaintiffs,

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v.
CARRIER IQ, a Delaware corporation,

Case No.: CV-11-06281
[PROPOSED] ORDER GRANTING
STIPULATION RE CONTINUANCE
OF TIME FOR DEFENDANT TO
RESPOND TO COMPLAINT AND
[PROPOSED] ORDER EXTENDING
TIME TO RESPOND TO COMPLAINT

Defendant.

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Pursuant to stipulation, it is SO ORDERED.

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Dated: January 9, 2012

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Honorable Edward J. Davila
United States District Judge
Howard R. Lloyd
United States Magistrate Judge

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[PROPOSED] ORDER

CV-11-06281