Ortiz v. Menu Foods, Inc. et al

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NOTICE by Yvonne Ortiz of Filing Opposition to Conditional Transfer Order (CTO-2) with Judicial Panel on MDL; Exh 1; COS Yvonne Ortiz. (Grande, Thomas)

Ortiz v. Menu Foods, Inc. et al

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THOMAS R. GRANDE 3954 Of Counsel Davis Levin Livingston Grande 851 Fort Street, Suite 400 Honolulu, Hawai`i 96813 Telephone: [phone] Facsimile: [phone] Email: [e-mail] EMILY A. GARDNER 6891 Attorney at Law Dillingham Transportation Building 735 Bishop Street, Suite 402 Honolulu, Hawai`i 96813 Telephone: [phone] Facsimile: (808)-540-0201 Email: [e-mail] Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII ) ) ) ) Plaintiff, ) ) v. ) ) MENU FOODS, INC., a New Jersey ) ) Corporation; MENU FOODS ) HOLDINGS, INC., a Delaware Corporation, MENU FOODS INCOME ) ) FUND, an unincorporated Canadian ) business; DOE ENTITIES and ) INDIVIDUALS 1- 100, ) Defendants. YVONNE ORTIZ, individually and on behalf of all other similarly situated persons, Civil No. CV07-00323 DAE LEK (Class Action) PLAINTIFF'S NOTICE OF FILING OPPOSITION TO CONDITIONAL TRANSFER ORDER (CTO-2) WITH JUDICIAL PANEL ON MULTIDISTRICT LITIGATION; EXHIBIT "1"; CERTIFICATE OF SERVICE

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PLAINTIFF'S NOTICE OF FILING OPPOSITION TO CONDITIONAL TRANSFER ORDER (CTO-2) WITH JUDICIAL PANEL ON MULTIDISTRICT LITIGATION Plaintiff Yvonne Ortiz has filed an Opposition to Conditional Transfer Order (CTO-2) with the Judicial Panel on Multidistrict Litigation, objecting to the transfer of the this case as a "tag-along action" pursuant to Rule 7.4(c) of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation (JPML). Exhibit "1". NOTICE OF OPPOSITION STAYS SERVICE AND EXECUTION OF CONDITIONAL TRANSFER ORDER TO TRANSFEREE COURT Under JPML Rule 7.4(c), upon the receipt of the notice of opposition "the Clerk of the Panel shall not transmit said [conditional transfer] order to the clerk of the transferee district court until further order of the Panel." Because "[c]onditional transfer orders do not become effective unless and until they are filed with the clerk of the transferee district court," Rule 7.4(e), filing the notice of opposition "stays execution of the [conditional transfer] order." Fu's Garden Restaurant v. Archer-Daniels-Midland Company, 2000 WL 635440, *1 (N.D. Cal. 2000). TRANSFEREE COURT RETAINS JURISDICTION TO DECIDE REMAND AND STAY Under JPML Rule 1.5, this Court retains jurisdiction to decide the pending motions to remand and stay: The pendency of a motion, order to show cause, conditional transfer order or conditional remand order before the Panel concerning transfer or remand of an action pursuant to 28 U.S.C. §1407 does not
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affect or suspend orders and pretrial proceedings in the district court in which the action is pending and does not in any way limit the pretrial jurisdiction of that court. A transfer or remand pursuant to 28 U.S.C. §1407 shall be effective when the transfer or remand order is filed in the office of the clerk of the district court of the transferee district. When a notice of opposition to conditional transfer order is filed, the transferee court "retains jurisdiction to decide [a pending motion to remand]." Fu's Garden Restaurant v. Archer-Daniels-Midland Company, 2000 WL 635440, *1 (N.D. Cal. 2000). Faulk v. Owens-Corning, Fiberglass Corp., 48 F.Supp. 2d 653, 657 n.2 (E.D. Texas Beaumont Division 1999). PROCEDURE IN MDL AFTER NOTICE OF OPPOSITION FILED Pursuant to JPML Rule 7.4(d), "[w]ithin fifteen days of the filing of its notice of opposition, the party opposing transfer shall file a motion to vacate the conditional transfer order and brief in support thereof. The Chairman of the Panel shall set the motion for the next appropriate hearing session of the Panel." The briefing schedule for the motion is set by the clerk of the Panel. JPML Rule 7.4(c). DATED: Honolulu, Hawaii, August 16, 2007. /s/ Thomas R. Grande THOMAS R. GRANDE EMILY A. GARDNER Attorneys for Plaintiffs

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Exh. 1

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Exh. 1

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Exh. 1

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII YVONNE ORTIZ, individually and on behalf of all other similarly situated persons, Plaintiff, v. MENU FOODS, INC., a New Jersey Corporation; MENU FOODS HOLDINGS, INC., a Delaware Corporation, MENU FOODS INCOME FUND, an unincorporated Canadian business; DOE ENTITIES and INDIVIDUALS 1- 100, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. CV07-00323 DAE LEK (Class Action) CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE I hereby certify that, on the dates and by the methods of service noted below, a true and correct copy of the foregoing was served on the following at their last known addresses: Served Electronically through CM/ECF Chad P. Love Barbara J. Kirschenbaum [e-mail] [e-mail] August 16, 2007 August 16, 2007

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DATED: Honolulu, Hawaii, August 16, 2007. /s/ Thomas R. Grande THOMAS R. GRANDE EMILY A. GARDNER Attorneys for Plaintiffs

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