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Eclectic Properties East, LLC v. Marcus & Millichap Co.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


September 1, 2009

ECLECTIC PROPERTIES EAST, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, RISOLA FAMILY LP II, A FLORIDA LIMITED PARTNERSHIP, CECA 3000, LP, A NEVADA LIMITED PARTNERSHIP, CHEATHAM PROPERTIES, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, SUCCESSOR IN THE INTEREST OF ENTERPRISES I LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AMNON DANUS AND RIVKA DANUS, FRED ENGELBERG, LINDA FARRELL, JOSEPH W. AMIRKHAS, JOSEPH W. AMIRKHAS, AS TRUSTEE UNDER THE AMIRKHAS TRUST, DATED DATE COMP. JANUARY 14, 2000, JUSTUS L. AHREND AND SUSAN W. AHREND, TRUSTEES OF THE JUSTUS AND SUSAN AHREND TRUST, DATED DECEMBER 6, 1990, KEVORK BELIKIAN AND SYLVIA S. BELIKIAN, TRUSTEES UNDER THE KEVORK BELIKIAN AND SYLVIA S. BELIKIAN LIVING TRUST, DATED JULY 10, 2000, MANI ETEMAD AND SUSAN KHOSHNOOD, TRUSTEES OF THE MANI ETEMAD AND SUSAN KHOSHNOOD 2001 REVOCABLE TRUST, EUGENIA GAGNON, TRUSTEE OF THE GENIE DEBS REVOCABLE TRUST, DATED OCTOBER 10, 1995, THOMAS H. LINDEN AND SYLVIA E. LINDEN, TRUSTEES OF THE THOMAS H. LINDEN AND SYLVIA E. LINDEN FAMILY TRUST, DATED SEPTEMBER 19, 2000, JOHANNES MODERBACHER AND EILEEN STARR MODERBACHER, AS TRUSTEES OF THE MODERBACHER FAMILY TRUST, ESTABLISHED BY DECLARATION OF TRUST, DATED FEBRUARY 1, 2006, RICHARD W. SIEBERT AND DEBRA M. SIEBERT, TRUSTEES OF THE SIEBERT FAMILY TRUST U/D/T, DATED JANUARY 13, 2003, ALLEN ERNEST HOM, TRUSTEE FOR THE ALLEN ERNEST HOM TRUST, DATED AUGUST 19, 1992, AND LINDA J. CALL, TRUSTEE FOR THE LINDA JEANNE CALL FAMILY TRUST, DATED SEPTEMBER 12, 2002, PLAINTIFFS,
v.
THE MARCUS & MILLICHAP COMPANY, A CALIFORNIA CORPORATION, MARCUS & MILLICHAP REAL ESTATE INVESTMENT SERVICES INC., A CALIFORNIA CORPORATION, MARCUS & MILLICHAP REAL ESTATE INVESTMENT BROKERAGE COMPANY, A CALIFORNIA CORPORATION, SOVEREIGN INVESTMENT COMPANY, A CALIFORNIA CORPORATION, SOVEREIGN SCRANTON LLC, A DELAWARE LIMITED LIABILITY COMPANY, SOVEREIGN CC, LLC, A DELAWARE LIMITED LIABILITY COMPANY, SOVEREIGN JF, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, PAUL A. MORABITO, INDIVIDUALLY AND AS THE ALTER EGO OF EUREKA PETROLEUM INC., A NEW YORK CORPORATION, TIBAROM INC., A DELAWARE CORPORATION, TIBAROM NY LLC, A NEVADA LIMITED LIABILITY COMPANY, TIBAROM PA LLC, A NEVADA LIMITED LIABILITY COMPANY, SCRANTON LUBE, LLC, A DELAWARE LIMITED LIABILITY COMPANY, NY SEVEN LUBE, LLC, A DELAWARE LIMITED LIABILITY, NEW YORK LUBE NUMBER 3, LLC, A DELAWARE LIMITED LIABILITY COMPANY, ROCHESTER LUBE, LLC, A DELAWARE LIMITED LIABILITY COMPANY, BARUK MANAGEMENT, INC., A CALIFORNIA CORPORATION, EUREKA PETROLEUM INC., A NEW YORK CORPORATION, TIBAROM INC., A DELAWARE CORPORATION, TIBAROM NY LLC, A NEVADA LIMITED LIABILITY COMPANY, TIBAROM PA LLC, A NEVADA LIMITED LIABILITY COMPANY, SCRANTON LUBE, LLC, A DELAWARE LIMITED LIABILITY COMPANY, NY SEVEN LUBE, LLC, A DELAWARE LIMITED LIABILITY, NEW YORK LUBE NUMBER 3, LLC, A DELAWARE LIMITED LIABILITY COMPANY, ROCHESTER LUBE, LLC, A DELAWARE LIMITED LIABILITY COMPANY, BARUK MANAGEMENT, INC., A CALIFORNIA CORPORATION, JACK WAELTI, INDIVIDUALLY AND AS THE ALTER-EGO OF THE QSR GROUP ONE, LLC, A FLORIDA LIMITED LIABILITY COMPANY, THE QSR GROUP, LLC, A FLORIDA LIMITED LIABILITY COMPANY, AND THE QSR GROUP II, LLC, A FLORIDA LIMITED LIABILITY COMPANY A/K/A THE QSR GROUP TWO, LLC, THE QSR GROUP ONE, LLC, A FLORIDA LIMITED LIABILITY COMPANY, THE QSR GROUP, LLC, A FLORIDA LIMITED LIABILITY COMPANY, AND THE QSR GROUP II, LLC, A FLORIDA LIMITED LIABILITY COMPANY A/K/A THE QSR GROUP TWO, LLC, PGP VALUATION, INC., AN OREGON CORPORATION, GLEN D. KUNOFSKY, MARCUS MUIRHEAD, ALEXANDER MICKLE, SEAN PERKIN, DONALD EMAS, ANDREW LESHER, STEWART WESTON, BRICE HEAD, DAIZY GOMEZ, AND BRET KING, DEFENDANTS.

The opinion of the court was delivered by: Honorable Ronald M. Whyte United States District Judge

STIPULATED MISCELLANEOUS ADMINISTRATIVE REQUEST TO EXCEED THE PAGE LIMITS ON DEFENDANTS' REPLIES IN SUPPORT OF MOTIONS TO DISMISS; Dept: 6 Judge: Ronald M. Whyte Filed: February 4, 2009

STIPULATION

WHEREAS, on February 9, 2009, the plaintiffs filed the Complaint in this action; and

WHEREAS, plaintiffs' Complaint is 174 pages long, contains 624 paragraphs, and names 31 separate defendants; and various defendants' arguments for dismissal into a reasonable number of motions, thereby reducing the burden on the Court and all parties; and filed with the Court, defendants asked plaintiffs to agree to reasonable extensions of the page limits in this Court's Civil Local Rules, and plaintiffs agree to defendants' requested extensions; and plaintiffs' consolidated opposition brief; and agreed page extensions; and to dismiss on May 11, 2009, and plaintiffs filed their consolidated opposition brief on July 17, 2009; and

WHEREAS, defendants' reply briefs in support of their motions to dismiss are due to be filed no later than September 2, 2009; and the page limits on their replies, and plaintiffs have again agreed to those extensions;

WHEREAS, defendants elected to file motions to dismiss, but wished to consolidate the

WHEREAS, in order to achieve this consolidation and reduce the number of documents

WHEREAS, defendants reciprocally agreed to grant plaintiffs a page extension on

WHEREAS, pursuant to stipulation and proposed order, this Court approved the parties'

WHEREAS, pursuant to those stipulated page extensions, defendants filed their motions

WHEREAS, defendants again have asked plaintiffs to agree to reasonable extensions of

THEREFORE, the parties to this suit hereby stipulate and agree as follows:

1. Defendants The Marcus & Millichap Company, Sovereign Investment Company, Sovereign Scranton LLC, Sovereign CC LLC, and Sovereign JF LLC (collectively the "TMMC and Sovereign Defendants") will file, on September 2, 2009, one consolidated reply memorandum of no more than 25 pages;

2. Defendants Marcus & Millichap Real Estate Investment Services, Marcus & Millichap Real Estate Investment Brokerage Company, Marcus Muirhead, Sean Perkin, Donald Emas, Andrew Lesher, Stewart Weston, Brice Head, and Bret King (collectively the "REIS Defendants") will file, on September 2, 2009, (a) one consolidated reply memorandum of no more than 20 pages; and (b) one consolidated joinder in the TMMC and Sovereign Defendants' reply memorandum;

3. Defendant PGP Valuation, Inc. will file, on September 2, 2009, one reply memorandum of no more than 20 pages; and

4. Defendants Paul A. Morabito and Baruk Management, Inc. (collectively the "Morabito Defendants") will file, on September 2, 2009, one consolidated reply memorandum of no more than 25 pages.

IT IS SO STIPULATED.

Dated: August 31, 2009 KEKER & VAN NEST, LLP

DAN JACKSON Attorneys for Defendants

THE MARCUS & MILLICHAP COMPANY, SOVEREIGN INVESTMENT COMPANY, SOVEREIGN SCRANTON LLC, SOVEREIGN CC, LLC, and SOVEREIGN JF, LLC

Dated: August 31, 2009

OVERLAND BORENSTEIN SCHEPER & KIM LLP

By: Concurrence obtained General Order 45B.X

DAVID C. SCHEPER

Attorneys for Defendants MARCUS & MILLICHAP REAL ESTATE INVESTMENT SERVICES INC., MARCUS & MILLICHAP REAL ESTATE INVESTMENT BROKERAGE COMPANY, MARCUS MUIRHEAD, SEAN PERKIN, DONALD EMAS, ANDREW LESHER, STEWART WESTON, BRICE HEAD, and BRET KING

Dated: August 31, 2009

JEFFER MANGELS BUTLER & MARMARO LLP

By: Concurrence obtained General Order 45B.X

PAUL L. WARNER Attorneys for Defendants

PAUL A. MORABITO and BARUK MANAGEMENT, INC.

Dated: August 31, 2009

MANNING & MARDER, KASS, ELLROD, RAMIREZ LLP

By: Concurrence obtained General Order 45B.X

MICHAEL L. SMITH Attorneys for Defendant

PGP VALUATION, INC.

Dated: August 31, 2009

COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP

By: Concurrence obtained General Order 45B.X

DAVID J. GEORGE Attorneys for Plaintiffs (listed on Caption pages)

[PROPOSED] ORDER

Pursuant to the stipulation of the parties, it is hereby ordered that:

1. The TMMC and Sovereign Defendants are given leave to file, on September 2, 2009, one consolidated reply memorandum of no more than 25 pages;

2. The REIS Defendants are given leave to file, on September 2, 2009, one consolidated reply memorandum of no more than 20 pages and one consolidated joinder in the TMMC and Sovereign Defendants' reply memorandum;

3. Defendant PGP Valuation, Inc. is given leave to file, on September 2, 2009, one reply memorandum of no more than 20 pages; and

4. The Morabito Defendants are given leave to file, on September 2, 2009, one consolidated reply memorandum of no more than 25 pages.

IT IS SO ORDERED.

20090901

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