Agnir v. The Gryphon Solutions, LLC et al

Filing 38

ORDER by Judge Lucy H. Koh finding as moot 36 Stipulation; granting 37 Stipulation; terminating 20 Motion to Strike ; terminating 21 Motion to Dismiss (lhklc2, COURT STAFF) (Filed on 2/21/2013)

Case5:12-cv-04470-LHK Document37 Filed02/20/13 Page1 of 4
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DARRYL J. HOROWITT #100898
KEITH M. WHITE #188536
COLEMAN & HOROWITT, LLP
Attorneys at Law
499 West Shaw, Suite 116
Fresno, California 93704
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants,
THE GRYPHON SOLUTIONS, LLC;
MICHAEL CHARLES BRKICH;
JAY MICHAEL TENENBAUM; and
IAN NATHAN WILLENS

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA - SAN JOSE DIVISION

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ELIZABETH PALISOC AGNIR,
Plaintiff,

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CASE NO. 5:12-CV-04470-LHK
AMENDED STIPULATION AND
ORDER GRANTING LEAVE TO
FILE FIRST AMENDED
COMPLAINT AND WITHDRAWING
DEFENDANTS’ MOTION TO
DISMISS AND MOTION TO STRIKE

v.
THE GRYPHON SOLUTIONS, LLC a
California Limited Liability Company;
MICHAEL CHARLES BRKICH,
individually an in his official capacity; JAY
MICHAEL TENENBAUM, individually
and in his official capacity; IAN NATHAN
WILLENS, individually and in his official
capacity,

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Defendants.

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THE PARTIES HEREBY STIPULATE AND AGREE AS FOLLOWS:

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1.

On August 24, 2012, Plaintiff filed her Complaint (Doc. 1) in this case alleging

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violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and the Rosenthal

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Fair Debt Collection Practices Act, Cal. Civil Code § 1788 et seq. Plaintiff’s Complaint also

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seeks actual damages, statutory damages, declaratory and injunctive relief, attorney’s fees, and

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cost pursuant to Cal. Civil Code §§ 1798.92-1798.97.

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2.

On September 24, 2012, Defendants filed their Motion to Dismiss for Failure to

State a Claim Upon Which Relief Can be Granted. (Doc. 16).

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AMENDED STIPULATION AND ORDER
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GRANTING LEAVE TO FILE FIRST AMENDED COMPLAINT

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3.

On September 25, 2012, Defendants filed their Motion to Strike (Doc. 17).

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4.

Defendants motions were originally set for hearing on January 31, 2013, at 1:30

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p.m. before the Honorable Lucy H. Koh.
5.

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The parties previously requested a modified the briefing schedule requiring briefs

to be filed as follows:

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a.

Plaintiff’s opposition briefs shall be filed on or before October 23, 2012.

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b.

Defendants’ reply briefs shall be filed on or before November 6, 2012.

6.

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Plaintiff filed her Opposition to the Motion to Dismiss (Doc. 32-1) and

Opposition to the Motion to Dismiss (Doc. 26) on October 22, 2012.
7.

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Since that Stipulation and Order modifying the briefing schedule, and the filing of

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Plaintiff’s oppositions, new counsel for Defendants have been substituted in place of former

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counsel and the Court continued the hearing dates for both motions sua sponte to April 18, 2013

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at 1:30 p.m.
8.

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In the course of preparing reply memorandums in support of Defendants’ motions,

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Defendants’ new counsel identified an alternative basis on which to dismiss Plaintiff’s claims

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that was not advanced in the moving papers.
9.

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Counsel discussed several methods of addressing the issue and the timeliness of

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the contemplated reply memorandums while preserving the rights of the parties and concluded

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that the most efficient manner to fairly address the issue is to allow Plaintiff to amend her

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complaint under Federal Rules of Civil Procedure 15(a)(2), then allow Defendants to respond to

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the First Amended Complaint.
10.

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serve her First Amended Complaint.
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Plaintiff shall file and serve her First Amended Complaint on or before March 4,

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As authorized by Federal Rule of Civil Procedure 15(a)(2), Plaintiff may file and

Defendants shall be allowed fourteen (14) calendar days from the date of service

2013.

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of the First Amended Complaint in which to file their responsive pleadings. Any opposition and

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///

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reply memorandums shall be filed and served as required by the Federal Rules of Civil

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Procedure.

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13.

Defendants’ response to the First Amended Complaint may include a motion to

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strike based on California Code of Civil Procedure section 425.16, the “anti-SLAPP” statute, if

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Defendants deem it warranted. Plaintiff waives any objection related to the timeliness of any

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anti-SLAPP motion as long as it is made within 14 days of service of the First Amended

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Complaint as discussed below.

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14.

Plaintiff’s amendment will be viewed for all purposes related to Defendants’

original Section 425.16 motion, as if it were timely made pursuant to Rule 15(a)(1)(B) after the

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filing of Defendants’ original responsive pleadings. By this stipulation, Defendants have not

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waived any rights they may have under any statute.

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15.

Defendants’ motion to strike and motion to dismiss currently set for hearing on

April 18, 2013, at 1:30 p.m. are withdrawn and the hearing date vacated.
IT IS SO STIPULATED.

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CONSUMER LAW CENTER, INC.

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Dated: February 20, 2013

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/s/ Fred W. Schwinn
By:________________________________
FRED W. SCHWINN
Attorneys for Plaintiff,
ELIZABETH PALISOC AGNIR

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COLEMAN & HOROWITT, LLP

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Dated: February 20, 2013

/s/ Keith M. White
By:________________________________
KEITH M. WHITE
Attorneys for Defendants,
THE GRYPHON SOLUTIONS, LLC;
MICHAEL CHARLES BRKICH; JAY
MICHAEL TENENBAUM; and IAN
NATHAN WILLENS

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Case5:12-cv-04470-LHK Document37 Filed02/20/13 Page4 of 4
ORDER

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The Court, having reviewed the stipulation of the parties and finding that good cause

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exists, it is hereby ORDERED:
1.

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Plaintiff shall file and serve her First Amended Complaint on or before March 4,

2.

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Defendants shall be allowed fourteen (14) calendar days from the date of service

2013.

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of the First Amended Complaint in which to file their responsive pleadings. Any opposition and

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reply memorandums shall be filed and served as required by the Federal Rules of Civil

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Procedure.

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3.

Defendants’ response to the First Amended Complaint may include a motion to

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strike based on California Code of Civil Procedure section 425.16, the “anti-SLAPP” statute, if

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Defendants deem it warranted. Plaintiff waives any objection related to the timeliness of any

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anti-SLAPP motion as long as it is made within 14 days of service of the First Amended

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Complaint as discussed below.

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4.

Plaintiff’s amendment will be viewed for all purposes related to Defendants’

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original Section 425.16 motion, as if it were timely made pursuant to Rule 15(a)(1)(B) after the

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filing of Defendants’ original responsive pleadings. By this stipulation, Defendants have not

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waived any rights they may have under any statute.

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5.

Defendants’ motion to strike and motion to dismiss currently set for hearing on

April 18, 2013, at 1:30 p.m. are withdrawn and the hearing date vacated.

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February 21, 2013
Dated: ___________________

____________________________________
UNITED STATES DISTRICT JUDGE

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AMENDED STIPULATION AND ORDER
2/20/13 ~ 2:59 pm

GRANTING LEAVE TO FILE FIRST AMENDED COMPLAINT