TIBCO Software Inc., v. FEI Company

Filing 41

ORDER GRANTING 40 STIPULATION TO STAY LITIGATION. Signed by Judge Edward J. Davila on 12/1/2017. (ejdlc2S, COURT STAFF) (Filed on 12/1/2017)

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RICHARD S.J. HUNG (SBN: 197425)
[e-mail]
SABRINA A. LARSON (SBN: 291661)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, CA 94105-2482
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff TIBCO SOFTWARE INC.

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KIMBERLY D. HOWATT (SBN: 196921)
[e-mail]
GORDON & REES LLP
101 W. Broadway, Suite 2000
San Diego, CA 92101
Telephone: [phone]
Facsimile: [phone]

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Gordon & Rees LLP
101 W. Broadway Suite 2000
San Diego, CA 92101

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ADAM M. TSCHOP (SBN: 209767)
[e-mail]
THERMO FISHER SCIENTIFIC INC.
5823 Newton Drive
Carlsbad, CA 92008
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant FEI COMPANY

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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TIBCO SOFTWARE INC.

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CASE NO. 17-CV-00696-EJD
Plaintiff,

Defendant.

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Dept.: Courtroom 4
Judge: Hon. Edward J. Davila

v.

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JOINT STIPULATION, MOTION,
AND [PROPOSED] ORDER FOR
STAY OF LITIGATION PENDING
FINALIZATION OF SETTLEMENT
AGREEMENT

FEI COMPANY,

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Complaint Filed: Feb. 10, 2017
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-1JOINT STIPULATION, MOTION, AND [PROPOSED] ORDER FOR STAY OF LITIGATION
PENDING FINALIZATION OF SETTLEMENT AGREEMENT

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Plaintiff TIBCO SOFTWARE INC. (“Plaintiff”) and defendant FEI COMPANY

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(“Defendant”) hereby stipulate and jointly move this Court for an order staying the above-

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captioned litigation for a period of sixty (60) days to allow for the parties to finalize, perform,

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and complete their settlement agreement.

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I.

FACTUAL BACKGROUND

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Plaintiff commenced this lawsuit by the filing of its initial complaint on February 10,

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2017. (Doc. 1.) Plaintiff’s amended pleading, which is the operative complaint in this case, was

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filed on May 2, 2017. (Doc. 25.) Defendant answered the amended complaint on May 16, 2017,

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and filed an amended answer on June 16, 2017. (Docs. 26, 34.)

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The parties filed their joint case management statement on June 8, 2017. (Doc. 32.) On

Gordon & Rees LLP
101 W. Broadway Suite 2000
San Diego, CA 92101

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June 12, 2017, this Court issued its Case Management Order, establishing the schedule for

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discovery, motions, and pre-trial matters in this case. (Doc. 33.) On November 22, 2017, this

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Court granted the parties’ request for an extension of certain discovery and motion-filing

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deadline, which order did not affect the originally-set joint trial setting conference statement and

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trial setting conference dates. (Doc. 39.)

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The parties participated in a court-sponsored ADR session with Mr. Mark LeHocky

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pursuant to Civ.L.R. 16-8 on July 13, 2017. (Doc. 35.) During the litigation proceedings, the

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parties resumed the settlement discussions, and on or about November 30, 2017, successfully

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reached an agreement for the resolution of this matter.

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The terms of the parties’ settlement agreement provide for certain performance to occur

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by or before the first part of January 2018, after which time they will submit a joint motion for

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the dismissal of the case, in its entirety. The parties fully anticipate and expect that such

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performance shall timely occur; however, if such is not accomplished, the parties would, in such

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circumstance, notify this Court and submit a proposed modified scheduling order to resume the

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litigation proceedings. This approach would avoid the need for a new lawsuit relative to the

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parties’ dispute, and the corresponding expenditure of judicial resources and litigant expense

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should the case unexpectedly resume.

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The parties are in agreement on this matter, and thus submit this stipulation, motion, and
-2JOINT STIPULATION, MOTION, AND [PROPOSED] ORDER FOR STAY OF LITIGATION
PENDING FINALIZATION OF SETTLEMENT AGREEMENT

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proposed order jointly.

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II.

AUTHORITY FOR MOTION

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“[T]he power to stay proceedings is incidental to the power inherent in every court to

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control the disposition of the causes on its docket with economy of time and effort for itself, for

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counsel, and for litigants.” Landis v. North American Co., 299 U.S. 248, 254-55 (1936). “How

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this can best be done calls for the exercise of judgment, which must weigh competing interests

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and maintain even balance. Id., citing Kansas City Southern Ry. v. United States, 282 U.S. 760,

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763 (1931) and Enelow v. New York Life Ins. Co., 293 U.S. 379, 382 (1935).

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In this case, the requested stay serves the interests of economy of time and effort for this
Court and for the litigants (as well as their counsel), because it allows for the completion of an

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Gordon & Rees LLP
101 W. Broadway Suite 2000
San Diego, CA 92101

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agreement for the resolution of all settlement of all claims, defenses, and issues in the above-

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captioned case. As Plaintiff and Defendant are in agreement on the stay request, it would not

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cause either party any undue hardship. The requested stay period of sixty (60) days is moderate

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and not excessive, such that, if it was to become necessary, this 2017-filed case would still be

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subject to an expedient trial. Further, it would avoid the need for the filing of a second lawsuit,

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starting the litigation proceedings anew, should the settlement agreement not be performed as

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projected (though such is not expected by the parties to occur).

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Accordingly, good cause exists for this Court’s entry of an order staying the proceedings
in this above-captioned matter for a period of sixty (60) days, i.e., until January 29, 2018.

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III.

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Based on the foregoing, the Parties jointly request that this Court stay this litigation for a

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period of sixty (60) days, i.e., until January 29, 2018, to allow for the parties to finalize, perform,

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and complete their settlement agreement.

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Dated: December 1, 2017

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CONCLUSION

MORRISON & FOERSTER LLP
By:

/s/ Sabrina A. Larson
Sabrina A. Larson
Attorneys for Plaintiff
TIBCO SOFTWARE INC.

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-3JOINT STIPULATION, MOTION, AND [PROPOSED] ORDER FOR STAY OF LITIGATION
PENDING FINALIZATION OF SETTLEMENT AGREEMENT

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Dated: December 1, 2017

GORDON & REES LLP
By:

/s/ Kimberly D. Howatt
Kimberly D. Howatt
Attorneys for Defendant
FEI COMPANY

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Gordon & Rees LLP
101 W. Broadway Suite 2000
San Diego, CA 92101

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-4JOINT STIPULATION, MOTION, AND [PROPOSED] ORDER FOR STAY OF LITIGATION
PENDING FINALIZATION OF SETTLEMENT AGREEMENT

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[PROPOSED] ORDER

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Therefore, good cause appearing and to allow for the parties to finalize, perform, and

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complete their settlement agreement, the above-captioned case, in its entirety, is stayed for a

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period of sixty (60) days, i.e., until January 29, 2018.

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December 1, 2017
Dated:____________________

______________________________
Hon. Edward J. Davila
United States District Judge

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Gordon & Rees LLP
101 W. Broadway Suite 2000
San Diego, CA 92101

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-5JOINT STIPULATION, MOTION, AND [PROPOSED] ORDER FOR STAY OF LITIGATION
PENDING FINALIZATION OF SETTLEMENT AGREEMENT

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ATTESTATION

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I, Kimberly D. Howatt, am the ECF user whose ID and password are being used to file

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this Joint Stipulation, Motion, and [Proposed] Order for Stay of Litigation Pending Finalization

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of Settlement Agreement. In compliance with Civ. L.R. 5-1(i)(3), I hereby attest that Sabrina A.

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Larson has concurred in this filing.

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Gordon & Rees LLP
101 W. Broadway Suite 2000
San Diego, CA 92101

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Dated: December 1, 2017

GORDON & REES LLP
By:

/s/ Kimberly D. Howatt
Kimberly D. Howatt
Attorneys for Defendant
FEI COMPANY

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-6JOINT STIPULATION, MOTION, AND [PROPOSED] ORDER FOR STAY OF LITIGATION
PENDING FINALIZATION OF SETTLEMENT AGREEMENT

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CERTIFICATE OF SERVICE

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I hereby certify that on December 1, 2017, a copy of the foregoing document was filed

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electronically with the Clerk of the Court using the Court’s CM/ECF electronic filing system,

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which will send an electronic copy of this filing to all counsel of record.

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_________________________
Sylvia Durazo

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Gordon & Rees LLP
101 W. Broadway Suite 2000
San Diego, CA 92101

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1132960/35829917v.1

-7JOINT STIPULATION, MOTION, AND [PROPOSED] ORDER FOR STAY OF LITIGATION
PENDING FINALIZATION OF SETTLEMENT AGREEMENT