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Bruce Foods Corp. v. SK Foods

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 6, 2009

BRUCE FOODS CORPORATION, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
SK FOODS, L.P., INGOMAR PACKING COMPANY, LLC, LOS GATOS TOMATO PRODUCTS, RANDALL LEE RAHAL, AND INTRAMARK USA, INC., DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

STIPULATION AND ORDER REGARDING RESPONSE TO COMPLAINT PENDING CONSOLIDATION OF RELATED CASES

Plaintiff Bruce Foods Corporation ("Plaintiff") and Defendants SK FOODS, L.P., INGOMAR PACKING COMPANY, LLC, LOS GATOS TOMATO PRODUCTS, RANDALL LEE RAHAL, and INTRAMARK USA, INC., ("Defendants"), by and through their counsel of record, hereby submit this Stipulation Regarding Response To Complaint Pending Consolidation of Related Cases.

WHEREAS Plaintiff filed a Complaint in the above-captioned case on or about January 5, 2009;

WHEREAS Plaintiff alleges price fixing of processed tomato products sold in the United States;

WHEREAS this is the first extension requested by Plaintiff and Defendants in this action;

WHEREAS other private plaintiffs have filed other complaints in the Eastern District of California based on the same or similar allegations and naming some or all of the same defendants (collectively "the Tomato Antitrust Cases");

WHEREAS the Plaintiff has filed a motion to consolidate all of the Tomato Antitrust Cases pursuant to Federal Rule of Civil Procedure 42(a);

WHEREAS the parties anticipate that the cases will be consolidated, and that with respect to the putative class actions, there will be a single master consolidated amended complaint;

WHEREAS the parties have agreed that an orderly schedule for any response to the pleadings, allowing for the consolidation of cases, would be more efficient for the parties and for the Court;

WHEREAS Plaintiff agrees that the deadline for Defendants to respond to the Complaint should be extended until the earlier of the following two dates: (1) thirty days (30) after the filing of a Consolidated Amended Complaint in the Tomato Antitrust Cases; or (2) thirty days (30) after Plaintiff provides written notice to Defendant that it does not intend to file a Consolidated Amended Complaint;

WHEREAS Defendants agrees that the defense counsel identified below will accept service on behalf of its client of all complaints in this matter, including any amended or consolidated complaints, and that Defendants shall not contest the sufficiency of process or service of process; provided, however, that this Stipulation does not constitute a waiver of any other defense, including but not limited to the defense of lack of personal or subject matter jurisdiction or improper venue; and

WHEREAS Plaintiff and Defendants agree that notwithstanding the above paragraphs, should any of the Defendants respond to a complaint in another of the Tomato Antitrust Cases prior to the date contemplated by this Stipulation, then Defendants shall make a simultaneous response to the complaint in the above-captioned matter and, should any of the Defendants respond or undertake to respond to discovery or otherwise engage in facilitation of case management in another of the Tomato Antitrust Cases prior to the date contemplated by this Stipulation, then Defendants shall engage in similar discovery or case management activity in this case.

THEREFORE, PLAINTIFF AND DEFENDANTS, BY AND THROUGH THEIR RESPECTIVE COUNSEL OF RECORD, HEREBY STIPULATE AS FOLLOWS:

1. The deadline for Defendant to respond to the Complaint shall be extended until the earlier of the following two dates: (1) thirty days (30) after the filing of a Consolidated Amended Complaint in the Tomato Antitrust Cases; or (2) thirty days (30) after Plaintiff provides written notice to Defendant that it does not intend to file a Consolidated Amended Complaint.

2. The defense counsel identified below shall accept service on behalf of their respective clients of all complaints in this matter, including any amended or consolidated complaints, and Defendants shall not contest the sufficiency of process or service of process; provided, however, that by entering into this Stipulation Defendants do not waive any other defense, including but not limited to the defense of lack of personal or subject matter jurisdiction or improper venue.

3. Plaintiff and Defendants agree that notwithstanding the above paragraphs, should any of the Defendants respond to a complaint in another of the Tomato Antitrust Cases prior to the date contemplated by this Stipulation, then the answering Defendants shall also make a simultaneous response to the complaint in the above-captioned matter and, should any of the Defendants respond or undertake to respond to discovery or otherwise engage in facilitation of case management in another of the Tomato Antitrust Cases prior to the date contemplated by this Stipulation, then such Defendants shall engage in similar discovery or case management activity in this case.

4. Plaintiff and Defendants further agree that any other defendant named in the complaint may subsequently agree to join in and be bound by this stipulation and order by providing Plaintiff's counsel with written notice of its intention to do so without further approval of the Court.

IT IS SO STIPULATED.

DATED: January 29, 2009

ROGER M. SCHRIMP (SBN 39379) CLINTON P. WALKER (SBN 151560) DAMRELL, NELSON, SCHRIMP, PALLIOS, PACHER & SILVA MICHAEL P. LEHMANN (SBN 77152) CHRISTOPHER L. LEBSOCK (SBN 184546) JON T. KING (SBN 205073) ARTHUR N. BAILEY (SBN 248460) HAUSFELD LLP Attorneys for Plaintiff Bruce Foods Corporation and the proposed Class

DATED: January 29, 2009

By: Brian P. Maschler (as authorized 1/29/09) BRIAN P. MASCHLER (SBN 111824) GORDON & REES, LLP Attorneys for Defendant SK Foods L.P.

DATED: January 29, 2009

By: George A. Nicoud III (as authorized 1/28/09) JOEL S. SANDERS (SBN 107234) GEORGE A. NICOUD III (SBN 106111) GIBSON, DUNN & CRUTCHER, LLP Attorneys for Defendant Los Gatos Tomato Products

DATED: January 28, 2009

By: Stephen Zovickian (as authorized 1/28/09) STEPHEN ZOVICKIAN (SBN 78697) BINGHAM MCCUTCHEN Attorneys for Defendant Ingomar Packing Co., Inc.

DATED: January 28, 2009

By: Rebekah R. Conroy (as authorized 1/28/09) REBEKAH R. CONROY (pro hac vice --pending) WALDER, HAYDEN & BROGAN, P.A. Attorneys for Defendants Randall Lee Rahal and Intramark USA, Inc.

IT IS SO ORDERED.

20090206

© 1992-2009 VersusLaw Inc.



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