UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, (SACRAMENTO DIVISION)
May 27, 2009
CYTOSPORT, INC., A CALIFORNIA CORPORATION, PLAINTIFF,
FLORIDA HEALTH DYNAMICS, LLC, A FLORIDA LIMITED LIABILITY COMPANY, DEFENDANT.
The opinion of the court was delivered by: Hon. Dennis L. Beck, Magistrate Judge
APPLICATION TO CONTINUE JOINT SCHEDULING CONFERENCE; ORDER CONTINUING JOINT SCHEDULING CONFERENCE
Date: June 2, 2009 Time: 9:00 a.m. Courtroom: Hon. Dennis L. Beck
By order dated March 5, 2009, this matter was re-scheduled for an Initial Scheduling Conference to be heard on June 2, 2009 at 9:00 a.m. That order was made upon Plaintiff's ex parte application dated March 3, 2009, in which we sought a continuance of the scheduling conference in order to conclude settlement negotiations and prepare dispositional documents. A proposed Settlement Agreement was sent to Florida Health Dynamics, LLC ("FHD") on January 29, 2009.
Some revisions were negotiated and a revised agreement was sent to FHD on February 23, 2009.
Clerk's default was entered against FHD on March 2, 2009; however, settlement negotiations continued. Since then, reminder emails have been sent to counsel for FHD on the following dates: March 4, 2009; March 6, 2009; March 16, 2009. On April 3, 2009, some minor revisions to the agreement were made (spelling corrections to names and changing dates, nothing substantive) in accordance with correspondence from counsel for FHD. A further revised agreement was sent again on April 8, 2009. Another reminder was sent on May 5, 2009 and May 8, 2009 and most recently on May 22, 2009. There were also telephone messages at various times throughout this period, and voice messages left for opposing counsel on March 2, 2009 and May 22, 2009, and approximately four more messages over the past three months.
Thus, we now seek an additional continuance of the scheduling conference in order to complete negotiation (and hopefully execution) of the settlement agreement. If executed, the agreement calls for dismissal of this action. In the absence of an executed settlement agreement, FHD's entitlement to relief from default may have to be decided by the Court.
While recognizing that we are (again) in arrears of the court-ordered schedule, we believe that these circumstances warrant an additional postponement of the Pretrial Scheduling Conference, and respectfully request that the Court order that the scheduling conference (currently set for June 2, 2009) be continued for approximately 30 days. We are hopeful that a voluntary dismissal will precede the new conference date.
DATED: May 26, 2009
Peter M. de Jonge
Gordon K. Hill Jed H. Hansen
THORPE NORTH & WESTERN, L.L.P. and Mark M. Bettilyon
RAY QUINNEY & NEBEKER P.C. and MILLSTONE, PETERSON & WATTS, LLP Attorneys at Law
GLENN W. PETERSON Attorneys for Plaintiff CytoSport, Inc.
I hereby attest that I have on file all holograph signatures for any signatures indicated by a "conformed" signature (/s/) within this e-filed document.
MILLSTONE PETERSON & WATTS, LLP
Glenn W. Peterson
Based upon the foregoing application, and good cause appearing, the Status (Pretrial Scheduling) Conference in this matter is continued to August 6, 2009 at 9:00 a.m. in Courtroom 9. If joint scheduling remains an issue at that time, a joint scheduling report shall be filed no later than seven (7) days prior to the conference date.
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