Ortiz v. Menu Foods, Inc. et al

Filing 30

MOTION for Leave to File to File a Reply to 28 "Plaintiffs' Response to Its Objections to the Findings and Recommendation to Grant in Part and Deny in Part Plaintiffs' Motion for Remand and Order Denying Defendants'Motion to Stay as Moot, filed 8/21/07", filed 09/14/07 by Menu Foods Holdings, Inc.. (Attachments: # 1 Memorandum in Support of Motion# 2 Exhibit 1# 3 Certificate of Service)(Love, Chad) Modified on 9/24/2007 to include link to correlate to plaintiff's response (doc 28) and include link to F&R: doc 23 (afc).

Ortiz v. Menu Foods, Inc. et al

Doc. 30 Att. 1

Case 1:07-cv-00323-DAE-LEK

Document 30-2

Filed 09/21/2007

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII YVONNE ORTIZ, Individually and ) on behalf of all other similarly ) situated persons, ) ) Plaintiff, ) ) vs. ) ) 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) MEMORANDUM IN SUPPORT OF MOTION

MEMORANDUM IN SUPPORT OF MOTION Pursuant to Local Rule 74.2, Defendant Menu Foods Holdings Inc. ("Menu Foods") respectfully requests for leave to file the attached (Exhibit 1) Reply to Plaintiffs' Response to Menu Foods' Objections. The proposed reply is very brief (5 pages) and Menu Foods believes that it will assist the Court in resolving the matter before it because it (a) addresses a new argument made by

NEWY1\8147583.3

Dockets.Justia.com

Case 1:07-cv-00323-DAE-LEK

Document 30-2

Filed 09/21/2007

Page 2 of 3

Plaintiffs that reaches the core issues of this matter, and (b) clarifies the standard of review, which has been challenged by Plaintiffs. Plaintiffs Raise a New Argument. In Plaintiffs' Response to Menu Foods' Objections, Plaintiffs contend that arguments made by Menu Foods in the motion to vacate the conditional transfer order pending before the JPML in another action entitled, Picus v. Walmart, et al, (USDC Nevada), supports Plaintiffs' motion to remand. Plaintiffs are mistaken. However, because they never discussed Picus in their remand papers submitted to Judge Kobayashi, Menu Foods has had no opportunity to respond. In the attached Reply, Menu Foods briefly responds to this new argument, explains the dissimilarities between the case, and demonstrates that in Picus, the district court stayed all proceeding pending the determination by the JPML, the very relief sought by Defendants here. Plaintiffs Dispute the Applicable Standard of Review. The applicable standard of review is critical to a fair resolution of this matter. Surprisingly, Plaintiffs dispute the applicability of LR 74.2, specifically its de novo standard of review, to this Court's review of Magistrate Judge Kobayashi's Findings and Recommendation. Because of its significance, the Reply briefly addresses this issue.

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Case 1:07-cv-00323-DAE-LEK

Document 30-2

Filed 09/21/2007

Page 3 of 3

For the above reasons, Menu Foods respectfully requests that the Court grant Menu Foods leave to file the attached Reply Memorandum. DATED: Honolulu, Hawaii, September 21, 2007 .

_______/s/ Chad P. Love____ CHAD P. LOVE BARBARA J. KIRSCHENBAUM Attorneys for Defendants Menu Foods Holdings, Inc., Menu Foods, Inc., and Menu Foods Income Fund

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