Werdebaugh-v-Blue Diamond Growers

Filing 37

Order by Hon. Lucy H. Koh granting 36 Stipulation.(lhklc1, COURT STAFF) (Filed on 5/13/2013)

Case5:12-cv-02724-LHK Document36 Filed05/10/13 Page1 of 4

1 HANSON BRIDGETT LLP
LAWRENCE M. CIRELLI, SBN 114710
2 [e-mail]
MEGAN OLIVER THOMPSON, SBN 256654
3 [e-mail]
GEOFFREY R. PITTMAN, SBN 253876
4 [e-mail]
425 Market Street, 26th Floor
5 San Francisco, California 94105
Telephone: [phone]
6 Facsimile:
[phone]
7 Attorneys for Defendant Blue Diamond
Growers
8
PRATT & ASSOCIATES
9 BEN F. PIERCE GORE, SBN 128515
[e-mail]
10 1871 The Alameda, Suite 425
San Jose, California 95126
11 Telephone: [phone]
Facsimile:
[phone]
12
LOVELACE LAW FIRM, P.A.
13 DEWITT M. LOVELACE (admitted pro hac vice)
[e-mail]
14 12870 U.S. Hwy 98 West, Suite 200
Miramar Beach, Florida 32550
15 Telephone: [phone]
Facsimile:
[phone]
16
Attorneys for Plaintiff Chris Werdebaugh
17
18
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

21
22 CHRIS WERDEBAUGH, individually and
on behalf of other similarly situated,
23
Plaintiff,
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v.
25
BLUE DIAMOND GROWERS,
26
Defendant.
27

CASE NO. 5:12-cv-02724 LHK
STIPULATION AND [PROPOSED]
ORDER REGARDING AMENDED
COMPLAINT AND DISMISSAL WITH
PREJUDICE OF SONG-BEVERLY ACT
AND MAGNUSON-MOSS ACT CLAIMS
Judge: Hon. Lucy H. Koh

28
5129435.1

4:12-cv-02724 LHK
-1STIPULATION AND [PROPOSED] ORDER REGARDING AMENDED COMPLAINT AND DISMISSAL
WITH PREJUDICE OF SONG-BEVERLY ACT AND MAGNUSON-MOSS ACT CLAIMS

Case5:12-cv-02724-LHK Document36 Filed05/10/13 Page2 of 4

1

Pursuant to the Court's Minute and Case Management Order dated May 1, 2013,

2 the parties hereby stipulate and agree as follows:
3

WHEREAS, Blue Diamond contends that Plaintiff's Complaint is deficient in

4 several respects and should be dismissed in its entirety;
5

WHEREAS, pursuant to the May 1, 2013 Minute and Case Management Order,

6 the Court ordered the parties to meet and confer to discuss Blue Diamond's concerns
7 regarding the sufficiency of the allegations in the Complaint and further ordered Blue
8 Diamond to identify deficiencies in the Complaint that Plaintiffs will attempt to cure in an
9 amended complaint;
10

WHEREAS, the parties have so met and conferred as required by the Court's May

11 1, 2013 Order;
12

WHEREAS, without waiving its alternative arguments for dismissal of each and

13 every cause of action in the Complaint, Blue Diamond contends that Plaintiff's first,
14 second, third, fourth, fifth, and sixth causes of action fail to meet the pleading requirement
15 of Federal Rule of Civil Procedure 8(a), as well as the heightened pleading requirement
16 of Federal Rule of Civil Procedure 9(b). Accordingly, Blue Diamond identifies the
17 following deficiencies in the allegations related to these causes of action:
18



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The Complaint fails to specify which Blue Diamond products are at issue in
this case, i.e., which products, if any, were purchased by Plaintiff and when.



The Complaint fails to specify which allegedly unlawful representations

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appeared on the particular Blue Diamond products allegedly purchased by

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Plaintiff.

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

The Complaint fails to specify the particular state or federal regulations that

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Blue Diamond allegedly violated with respect to specific Blue Diamond

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products.

26



The Complaint fails to specify how Blue Diamond allegedly violated

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28
5129435.1

particular state or federal regulations with respect to specific Blue Diamond
products.
4:12-cv-02724 LHK
-2STIPULATION AND [PROPOSED] ORDER REGARDING AMENDED COMPLAINT AND DISMISSAL
WITH PREJUDICE OF SONG-BEVERLY ACT AND MAGNUSON-MOSS ACT CLAIMS

Case5:12-cv-02724-LHK Document36 Filed05/10/13 Page3 of 4

1



The Complaint fails to clearly specify the particular statements Plaintiff

2

relied upon when purchasing the identified Blue Diamond products and

3

when Plaintiff so relied.

4



5
6

The Complaint fails to sufficiently identify which particular Blue Diamond
statements are allegedly likely to deceive reasonable consumers.



The allegations referring generically to "Misbranded Food Products" are

7

insufficient to specifically identify either the products at issue or the

8

particular state or federal regulations allegedly violated.

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10

THEREFORE, the parties hereby stipulate and agree as follows:
1.

Plaintiff agrees to attempt to cure the above-identified deficiencies in the

11 Complaint with an amended complaint to be filed by May 24, 2013.
12

2.

Plaintiff agrees to dismiss with prejudice both the eighth cause of action for

13 violation of the Song-Beverly Act and the ninth cause of action for violation of the
14 Magnuson-Moss Act.
15

IT IS SO STIPULATED.

16

PRATT & ASSOCIATES

17
DATED: May 10, 2013
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19
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By: /S/ Ben F. Pierce Gore
Ben F. Pierce Gore
Attorneys for Plaintiff Chris Werdebaugh

HANSON BRIDGETT LLP

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22 DATED: May 10, 2013
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By: /S/ Megan Oliver Thompson
Megan Oliver Thompson
Attorneys for Defendant Blue Diamond Growers

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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5129435.1

DATED: May 13, 2013
Hon. Lucy H. Koh
United States District/Magistrate Judge
4:12-cv-02724 LHK
-3STIPULATION AND [PROPOSED] ORDER REGARDING AMENDED COMPLAINT AND DISMISSAL
WITH PREJUDICE OF SONG-BEVERLY ACT AND MAGNUSON-MOSS ACT CLAIMS