Sylvester et al v. Menu Foods, Inc. et al

Filing 16

Sylvester et al v. Menu Foods, Inc. et al

Doc. 16 Att. 4

Case 1:07-cv-00409-ACK-KSC

Document 16-5

Filed 08/24/2007

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII VALERIE SYLVESTER; DAVID PANG; ANDREW GARCIA; RUTH CAMARGO; CHRIS HUBBARD; STACEY COLLINS; RANDALL BANDMANN; KELLY ENGLE; PAM GOULD; and ERIK CORAL-SANDS, ) ) ) ) ) ) ) ) Plaintiffs, ) ) 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. CV 07-00409 ACK-KSC (Non-Vehicle Tort) DECLARATION OF CHAD P. LOVE

DECLARATION OF CHAD P. LOVE The undersigned hereby declares that: 1. I am an attorney licensed to practice law before all the Courts in

the State of Hawaii and the United States District Court, District of Hawaii; I am one of the attorneys representing Defendants MENU FOODS, INC.,

Dockets.Justia.com

Case 1:07-cv-00409-ACK-KSC

Document 16-5

Filed 08/24/2007

Page 2 of 5

MENU FOODS HOLDINGS, INC., and MENU FOODS INCOME FUND in the above-captioned proceeding and am competent to testify as to the matters stated herein and make this declaration upon personal knowledge except and unless stated to be upon information and belief. 2. On August 2, 2007, an Order was filed by the Court granting

Menu Foods, Inc., and Menu Foods Holdings, Inc., a 30 day extension to answer the First Amended Complaint, making their Answer due on September 4, 2007. 3. In accordance with LR 6.2 (which requires counsel to attempt

to obtain an additional extension before requesting an additional extension from this Court), I wrote to Plaintiffs' counsel on August 23, 2007, attempting to secure a Stipulation agreeing to a solution of various preliminary procedural issues in exchange for an extension of time to answer the First Amended Complaint. Plaintiffs' counsel responded to my email today, August 24, 2007, stating that because of problems with and relating to her office building, she will not be able to respond to our proposed Stipulation until early next week. 4. Because the deadline to answer the First Amended Complaint is

soon approaching (September 4, 2007), we are filing this Application. If

-2-

Case 1:07-cv-00409-ACK-KSC

Document 16-5

Filed 08/24/2007

Page 3 of 5

Plaintiffs agree to our stipulation regarding additional time to answer, we will promptly notify the Court and withdraw this Application. 5. This lawsuit involves claims arising out of the recent pet food

recall. Upon information and belief, there are over 100 such lawsuits filed in Federal Courts around the country. On June 19, 2007, the Judicial Panel on Multidistrict Litigation ("JPML") assigned the pet food recall cases to the District of New Jersey. 6. Attached as Exhibit A is the "Notice of Conditional Transfer

Order (CTO-4), filed 08/20/07" by the JPML. Pursuant to this "Conditional Transfer Order" ("CTO"), the JPML conditionally transferred the aboveentitled action (together with another case), to the United States District Court for the District of New Jersey. Plaintiffs have until September 4, 2007, in which to object to the CTO or the case will be transferred to the MDL. Should Plaintiffs file an objection to the CTO, they must file a motion to vacate the CTO within 15 days of the filing of their objection -making the deadline to file such a motion September 19, 2007. 7. Attached as Exhibit B is a true and accurate copy of the

"Transfer Order" filed by the JPML on June 19, 2007, in the matter designated as MDL No. 1850, "In Re Pet Food Products Liability Litigation." and attached as Exhibit C is a true and accurate copy of a letter

-3-

Case 1:07-cv-00409-ACK-KSC

Document 16-5

Filed 08/24/2007

Page 4 of 5

from the JPML, dated August 20, 2007, re MDL No. 1850, "In Re Pet Food Products Liability Litigation", transmitting Exhibits A, B and C hereto to "Involved counsel", including Plaintiffs' counsel. 8. The requested sixty (60) day extension to November 3, 2007,

would enable the Court to hear and rule on the Motion to Stay and, hopefully, allow sufficient time for the CTO to be determined. 9. The requested sixty (60) day extension will also promote

judicial economy by avoiding the filing and serving of pleadings while the JPML and MDL proceed; in the alternative, the requested extension will allow Menu Foods, Inc., and Menu Foods Holdings, Inc., time to apply for a further extension or enlargement by stipulation or duly noticed motion, if one should be necessary. 10. Accordingly, Menu Foods, Inc., and Menu Foods Holdings,

Inc., file this ex parte Application and request that they be granted a sixty (60) day extension of time to answer (or otherwise respond) to the First Amended Complaint because (a) the deadline to Answer or otherwise respond is Tuesday, September 4, 2007; (b) I have been unable to obtain Plaintiffs' agreement to an extension of time; (c) the JPML has filed a CTO which might likely transfer this case to the MDL action; (d) there will be no

-4-

Case 1:07-cv-00409-ACK-KSC

Document 16-5

Filed 08/24/2007

Page 5 of 5

prejudice to Plaintiffs to extend the answer/response date; and (e) there is insufficient time to file a duly noticed Motion under LR 6.2(b). DATED: Honolulu, Hawaii, August 24, 2007 .

_______/s/ Chad P. Love CHAD P. LOVE

-5-