Tuscany Investments LLC v. Daimler Trucks North America LLC et al

Filing 55

ORDER granting 46 First MOTION Relief From Case Management Order. Further Case Management Conference set for 5/6/2014 at 1:30 PM in Courtroom 2, 5th Floor, San Jose. Case Management Statement due by 4/29/2014. Motion Hearing set for 4/15/2014 is vacated. Motions to Appear by Phone terminated: 51 , 52 , 54 . Signed by Magistrate Judge Howard R. Lloyd on 4/14/2014. (hrllc1, COURT STAFF) (Filed on 4/14/2014)

*E-Filed: April 14, 2014*
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TERRY L. BAKER (SBN 214365)
820 Bay Avenue, Suite 230L
Capitola, CA 95010
Tel: [phone]
Fax: [phone]
[e-mail]

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Attorneys for Plaintiff
TUSCANY INVESTMENTS LLC

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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TUSCANY INVESTMENTS LLC,

Case No. C 13-04185 HRL

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Plaintiff,
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vs.
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DAIMLER TRUCKS NORTH AMERICA
LLC, a limited liability company;
WINNEBAGO INDUSTRIES, INC.;
LIPPERT COMPONENTS, INC.,

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NOTICE OF MOTION AND MOTION
FOR RELIEF FROM CASE
MANAGEMENT ORDER AND
[PROPOSED] ORDER (Re: Dkt. No. 46)
Date:
May 6, 2014
Time:
10:00 a.m.
Courtroom: 2

Defendants.

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TO ALL APPEARING DEFENDANTS AND THEIR ATTORNEYS OF
RECORD:
NOTICE IS HEREBY THAT on May 6, 2014, at 10:00 a.m., or as soon thereafter

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as may be heard by the above-entitled Court, located at 280 South First Street, San Jose

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California 95113, in the courtroom of the Honorable Howard R. Lloyd, plaintiff will and

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hereby does move the Court for relief from the case management order.

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This motion is made on the grounds that plaintiff recently obtained leave to file a

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First Amended Complaint (“FAC”) which added a new party, Lippert Components, Inc.

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(“LCI” ), to this action. LCI is an out of state defendant was served with the FAC by

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certified mail on March 27, 2014. As a result, LCI has not appeared, nor has it been

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defaulted. Currently, the fact discovery cutoff date is April 18, 2014, and is one day after

____________________________________________________________________________________
Tuscany Investments, LLC v. Daimler Trucks, et -1al.
Motion for Relief

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LCI’s time to respond to the FAC has run.

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This motion is based on this Notice of Motion and Motion, the Memorandum of

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Points and Authorities filed herewith, the pleadings and papers on file herein, and upon

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such other matters as may be presented to the Court at the time of the hearing.

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Dated:

March 30, 2014

Respectfully submitted,

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/s/ Terry L. Baker
TERRY L. BAKER
Attorney for Plaintiff

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POINTS AND AUTHORITIES
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Plaintiff brings this motion for relief from the case management order pursuant to
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Local Rule 16-2(d).
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I.

Issue to Be Decided

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The issue to be decided herein is whether plaintiff, and appearing defendants for
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that matter, should be relieved from the original case management order in this case.
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II.

Facts Relevant to This Motion

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This action arises out of plaintiff’s purchase of a recreational vehicle that was
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manufactured and warranted by defendants respectively. Plaintiff alleges that the vehicle
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has been, and is, defective. Defendants deny plaintiff’s allegations.
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Plaintiff originally brought this action against defendants Winnebago Industries
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and Daimler Trucks North America alleging violations of various warranty laws. At the
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Early Neutral Evaluation that occurred on March 3, 2014, plaintiff learned for the first
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time that some of the issues it alleges the vehicle experienced were potentially warranted
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by LCI separately, and not Winnebago or Daimler.
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As a result, the parties entered into a stipulation granting plaintiff leave to file the
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FAC and add LCI as a party. The Court issued an order granting plaintiff said leave and
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the FAC was filed on March 18, 2014. The Clerk issued a Summons as to LCI on March
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____________________________________________________________________________________
Tuscany Investments, LLC v. Daimler Trucks, et -2al.
Motion for Relief

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19, 2014, and service on LCI commenced shortly thereafter. LCI’s response date, if

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plaintiff’s counsel’s math is correct, is April 17, 2014. Currently, the fact discovery

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cutoff date is April 18, 2014.

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III.

Argument
Pursuant to L.R. 16-2(d), plaintiff and defendants request relief from the original

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case management order for the reasons set forth in the above statement of facts.

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Plaintiff’s counsel has conferred with counsel for Winnebago and Daimler and neither

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defendant opposes this request.
Plaintiff’s counsel apologizes to the Court in advance for not including in this

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motion a revised case management schedule. The reason is simply because there was not

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enough time given plaintiff’s counsel’s schedule to meet and confer on a revised plan.

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Additionally, because LCI has not appeared in the case, attempting to coordinate a revised

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case management schedule might result in a futile task.

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Plaintiff requests that the Court set a further case management conference

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sometime in early May so that LCI can appear and the parties can further discuss ADR

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options and visit settlement discussions.

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IV.

Conclusion
For the foregoing reasons, plaintiff respectfully requests that the Court grant this

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motion, relieve the parties from the case management order, and set a further case

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management conference some time in May of 2014.

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Dated:

March 30, 2014

Respectfully submitted,

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/s/ Terry L. Baker
TERRY L. BAKER
Attorney for Plaintiff

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____________________________________________________________________________________
Tuscany Investments, LLC v. Daimler Trucks, et -3al.
Motion for Relief

PROPOSED ORDER

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Good cause appearing, it is hereby ORDERED that plaintiff’s motion is

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GRANTED. All prior ordered dates are hereby vacated and a further case management

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conference will be held on __________________. The parties' joint case management
May 6, 2014 at 1:30 pm

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statement will be due April 29, 2014.
This matter is deemed suitable for hearing without oral argument. Accordingly, the hearing set
for April 15, 2015, is hereby vacated.

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April 14, 2014
Dated: __________________

_______________________________
UNITED STATES MAGISTRATE JUDGE
HOWARD R. LLOYD

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____________________________________________________________________________________
Tuscany Investments, LLC v. Daimler Trucks, et -4al.
Motion for Relief