Duke et al v. Bank of America, N.A. et al

Filing 31

Order Granting 30 Stipulation to Vacate Motion to Dismiss; Continue Case Management Conference; Stay Discovery. Signed by Hon. Edward J. Davila on 10/10/2012.(ecg, COURT STAFF) (Filed on 10/10/2012)

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Marc A. Lackner (SBN 111753)
Email: [e-mail]
David S. Reidy (SBN 225904)
Email: [e-mail]
Matthew J. Brady (SBN 254333)
Email: [e-mail]
REED SMITH LLP
101 Second Street, Suite 1800
San Francisco, CA 94105-3659
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendants
FIA Card Services, N.A.,
Bank of America, N.A., and
Bank of America Corporation

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REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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CAROL DUKE AND JACK POSTER, ON
BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED,

Case No. 5:12-cv-04009-EJD

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Plaintiffs,
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vs.
BANK OF AMERICA, N.A.; BANK OF
AMERICA CORPORATION; AND FIA CARD
SERVICES, N.A.,

STIPULATED REQUEST AND
XXXXXXX
[PROPOSED] ORDER VACATING
MOTION TO DISMISS, CONTINUING
INITIAL CASE MANAGEMENT
CONFERENCE, AND STAYING
DISCOVERY
[CIVIL L.R. 7-12; 16-2(E)]

Defendants.

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Case No. 5:12-cv-04009-EJD

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STIPULATION AND [PROPOSED] ORDER

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Pursuant to Local Rules 7-12 and 16-2(e), Plaintiffs Carol Duke and Jack Poster, on behalf of

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themselves and all others similarly situated (“Plaintiffs”) and Defendants FIA Card Services, N.A.,

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Bank of America, N.A. and Bank of America Corporation (“Defendants”) (collectively, the

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“Parties”) hereby stipulate and agree to the following:
RECITALS

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1.

WHEREAS, on May 16, 2011, plaintiff Stephenie Rose, on behalf of herself and all

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others similarly situated filed a class action complaint for damages and injunctive relief pursuant to

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47 U.S.C. section 227 et seq. against defendant FIA Card Services, N.A. and Bank of America

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Corporation (Dkt. No. 1) (the “Rose Case”);

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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2.

WHEREAS, on August 31, 2011, plaintiffs Sandra Ramirez and Scott Fowler, on

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behalf of themselves and all others similarly situated, filed a class action complaint for damages and

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injunctive relief pursuant to 47 U.S.C. section 227 et seq. against defendant Bank of America, N.A.,

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in the United States District Court, Southern District of California, Case No. 11cv2008-LAB (KSC)

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(Dkt. No. 1) (the “Ramirez Case”);

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3.

WHEREAS, on July 30, 2012, Plaintiffs, on behalf of themselves and all others

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similarly situated, filed a class action complaint for damages and injunctive relief pursuant to 47

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U.S.C. section 227 et seq. against Defendants (Dkt. No. 1) (the “Duke Case”);

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4.

WHEREAS, on August 31, 2012, the Court in Ramirez issued an Order consolidating

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Southern District Case Nos. 11cv3040-LAB (KSC) (the “Johnson Case”) and 12cv1662-LAB (KSC)

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(the “Makin Case”) with the Ramirez Case (Dkt. No. 34) (collectively, the “Ramirez Consolidated

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Cases”);

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5.

WHEREAS, on August 31, 2012, Defendants filed a motion to dismiss this Action

pursuant to the first-to-file rule, or in the alternative, to stay the action (Dkt. No. 11);
6.

WHEREAS, on September 14, 2012, Judge Henderson issued an Order of Referral,

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referring the Duke Case to this Court to consider whether it should be related to the Rose Case (Dkt.

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No. 21);

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Case No. 5:12-cv-04009-EJD

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STIPULATION AND [PROPOSED] ORDER

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WHEREAS, on September 25, 2012, this Court issued a Related Case Order, finding

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that the Duke Case and Rose Case are related and ordering that the cases be reassigned to him (Dkt.

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No. 26);
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WHEREAS, on September 26, 2012, following reassignment of the Duke Case to

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Judge Davila, the case management conference and Defendants’ motion to dismiss were reset for

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hearing on November 9, 2012 (Dkt. No. 27);
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WHEREAS, the parties in the Rose case have been ordered to mediation and have

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agreed to mediate before the Honorable Edward A. Infante (Ret.) on October 23, 2012, and the

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parties have agreed to mediate all claims in the Rose, Duke and Ramirez Consolidated Cases at that

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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mediation.
NOW, THEREFORE, in consideration of the foregoing the Parties, by and through their

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respective counsel of record, hereby STIPULATE as follows:


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taken off calendar without prejudice;

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

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That Defendants’ motion to dismiss currently scheduled for November 9, 2012 be

That the case management conference be continued to a date and time following

October 23, to allow the parties to engage in mediation and report to the Court; and


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That all discovery in this Action be stayed , except insofar as the parties request

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informal discovery in order to engage in meaningful settlement negotiations, and all

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discovery deadlines be vacated pending further Order of this Court.
IT IS SO STIPULATED.

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DATED: October 8, 2012.

REED SMITH LLP

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By

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/s/ David S. Reidy
David S. Reidy
Attorneys for Defendants
FIA Card Services, N.A.,
Bank of America, N.A., and
Bank of America Corporation

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Case No. 5:12-cv-04009-EJD

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STIPULATION AND [PROPOSED] ORDER

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DATED: October 8, 2012.

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LIEFF CABRASER HEIMANN & BERNSTEIN LLP
By

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/s/ Jonathan David Selbin
Jonathan David Selbin
Attorneys for Plaintiffs
Carol Duke and Jack Poster

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DATED: October 8, 2012.

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By

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REED SMITH LLP

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A limited liability partnership formed in the State of Delaware

MEYER WILSON CO., LPA
/s/ Matthew Ryan Wilson
Matthew Ryan Wilson
Attorneys for Plaintiffs
Carol Duke and Jack Poster

*Filer’s Attestation: Pursuant to Civil L.R. 5-1(i)(3)
regarding signatures, David S. Reidy hereby attests
that concurrence in the filing of this document has
been obtained.

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Case No. 5:12-cv-04009-EJD

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STIPULATION AND [PROPOSED] ORDER

[PROPOSED] ORDER
XXXXXXXX

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Pursuant to the above Stipulation, Defendants’ motion to dismiss is hereby taken off calendar
without prejudice. Docket Item No. 11 is TERMINATED.
The November 9, 2012 case management conference is CONTINUED to

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10:00
December 7,
_________________, 2012 at _______AM/PM. The Parties shall file a joint statement advising the

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November 30
Court of the status of mediation and settlement discussions no later than ____________, 2012.

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Discovery in this action is hereby STAYED and all discovery deadlines are hereby
VACATED pending further order from this court.

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REED SMITH LLP

A limited liability partnership formed in the State of Delaware

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SO ORDERED:

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10/10
DATED: ___________, 2012.
__________________________________________
Hon. Edward J. Davila
United States District Court Judge

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Case No. 5:12-cv-04009-EJD

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STIPULATION AND [PROPOSED] ORDER