UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION
June 7, 2011
NANSEE PARKER AND PHONG PHAM, ON BEHALF OF THEMSELVES AND THOSE SIMILARLY SITUATED, PLAINTIFFS,
DISH NETWORK L.L.C.,
The opinion of the court was delivered by: Phyllis J. Hamilton Judge
STIPULATED REQUEST SEEKING: (1)RELIEF FROM THE ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE; (2) A REVISED CASE MANAGEMENT CONFERENCE HEARING DATE AND RELATED DATES; AND (3) ENTRY OF A BRIEFING SCHEDULE FOR DISH'S PENDING MOTIONS; AND [PROPOSED] [Civil L.R. 7-11, 7-12 and 16-2(d)]
Pursuant to Civil L.R. 7-12 and 16-2(d), the parties jointly seek relief from the Court's March 25, 2011 Order Setting Initial Case Management Conference and ADR Deadlines, and 22 respectfully request that the Court enter the following stipulation, which extends the Case Management Conference from July 7, 2011 to October 20, 2011, at 2:00 p.m., and all related 24 deadlines as set forth below.
Since shortly after this litigation began, the parties have been working to implement an informal, streamlined discovery plan that contemplates an early exchange of information, followed 27 by a mediation. The parties intend to use the mediation to test the merits of the case, the legal and 28 factual issues regarding the class claims, as well as DISH's pending motions to dismiss and transfer, by advocating their views in an adversarial fashion before Randall W. Wulff in late July.
The parties' shared goal is to determine whether an early resolution is possible, which will both 3 significantly reduce the costs and fees for the parties and conserve judicial resources. To focus 4 their efforts on this process, the parties jointly request that the Court extend the scheduled July 7,2011, Case Management Conference to October 20, 2011, at 2:00 p.m. and continue all related 6 events and deadlines under the Federal and Local Rules in accordance with the new hearing date.
The parties also ask that the Court adopt the briefing schedule proposed below for DISH's Motion to Transfer Venue, pursuant to 14 U.S.C. section 1404(a), and Motion to Dismiss and Strike, pursuant to Rules 9, 12(b)(6) and (f) of the Federal Rules of Civil Procedure. management conference be held on or about June 9, 2011, so that the parties can respond to any 12 questions or concerns that the Court may have, if any, about this proposal. on the following stipulation (the "Stipulation") between the parties:
Alternatively, should the Court deem it useful, the parties suggest that an early case.
This stipulated request for relief from the Case Management Conference deadline is based.
WHEREAS, Plaintiffs filed their Complaint against Defendant DISH Network L.L.C.
("DISH"), DISH Network Corporation, and EchoStar Technologies L.L.C. on March 25, 2011 (Dkt. No. 1);
WHEREAS, the Court scheduled the Case Management Conference for July 7, 2011 (Dkt.No. 10); 21
WHEREAS, Plaintiffs served the Complaint on each of the defendants between April 7,2011 and April 15, 2011 (Dkt. Nos. 11, 20, 24); 23 the parties began having informal discussions to explore the possibility of conducting informal 25 discovery, through a streamlined exchange of documents and information for the purpose of 26 conducting an early mediation; face meetings, telephone conferences and email communications, about the implementation of the WHEREAS, shortly after the action was filed and the Complaint was served, counsel for WHEREAS, since then, the parties have engaged in frequent discussions, in both face-to-informal discovery and early resolution process, and other procedural and substantive issues 2 related to the litigation; streamlined the case, including that: (a) Plaintiffs dismissed two of the Defendants -- DISH WHEREAS, as a result of those conversations, certain issues have been resolved that have Network Corporation and EchoStar Technologies L.L.C. (Dkt. No. 32), and (b) the parties 6 stipulated to the request by Plaintiffs' counsel that they be appointed interim class counsel under Federal Rule of Civil Procedure 23(g)(3), which was granted by the Court on May 12, 2011 (Dkt. Nos. 29, 33); of mediation with Randy Wulff on July 26 and 27, 2011; and scope of the informal discovery and document exchange, which will continue during the coming weeks;
WHEREAS, the parties agreed to mediate the matter, and have already scheduled two days WHEREAS, the parties have worked together and are close to finalizing the parameters WHEREAS, on May 20, 2011, DISH filed a Motion to Transfer Venue, pursuant to 14 U.S.C. section 1404(a) ("Motion to Transfer"), and Motion to Dismiss and Strike, pursuant to Federal Rules of Civil Procedures 9, 12(b)(6) and (f) ("Motion to Dismiss") (Dkt. Nos. 36, 37); 17 and, 19 resolution of the case, DISH agreed to set the hearing for the Motion to Transfer and Motion to WHEREAS, to ensure that the parties focus their efforts on informal discovery and early Dismiss to September 14, 2011, namely more than a month and a half from the date of the 21 mediation.
NOW, THEREFORE, IT IS HEREBY STIPULATED, by and between plaintiffs Nansee Parker and Phong Pham and defendant DISH Network LLC, by and through their respective undersigned counsel, and subject to the Court's approval, that: Pursuant to the parties' diligent and good faith efforts to conduct informal discovery and 26 resolve this matter through early mediation, the parties hereby stipulate to the following:
1. Except as set forth in Paragraph 2 below, all formal discovery as well as any other obligations contemplated under the Federal Rules of Civil Procedure, the Civil Local Rules of this Court, or the Court's Standing Orders, including initial disclosures under Rule 16 and developing a Rule 26(f) Case Management Statement and related Discovery Plan, are stayed until the earlier of (i) October 6, 2011, or (ii) two weeks before the rescheduled Case Management Conference;
2. On or before September 23, 2011, the parties shall: Meet and confer re: initial disclosures, early settlement, ADR process selection,and discovery plan, under F.R.C.P. 26(f) & ADR L.R.3-4 (available at http://www.cand.uscourts.gov) File ADR Certification signed by Parties and Counsel, under Civil L.R. 16-8(b) and ADR L.R. 3-5(b) (available at http://www.cand.uscourts.gov) File either Stipulation to DR Process or Notice of Need for ADR Phone Conference, Civil L.R. 16-8(c) & ADR L.R. 3-5(b) &(c).
3. On or before October 11, 2011, the parties shall file Rule 26(f) Report, complete initial disclosures or state objection in Rule 26(f) Report and file Case Management Statement per the Court's Standing Order re Contents of Joint Case Management Statement (available at http://www.cand.uscourts.gov)
4. The Case Management Conference, currently scheduled for July 7, 2011, shall be 13 continued to October 20, 2011, at 2:00 p.m.;
5. The parties shall attend mediation on July 27 and 28, 2011;
6. Each party reserves all rights, arguments and defenses, asserted or unasserted, as of the date of this Stipulation, and no party shall assert that the passage of time between the time that this Stipulation was first contemplated and later signed and the expiration or termination of this Stipulation and [Proposed] Order, if any, but which shall not be deemed to have occurred earlier than October 20, 2011, will be a defense to any motion or basis for argument as part of any motion, opposition, or reply, including as a basis for challenging DISH's Motion to Transfer;
7. The briefing schedule for DISH's Motion to Transfer and Motion to Dismiss, filed on May 20, 2011, shall be as follows:
(a) Plaintiffs' Opposition briefs, if any, to DISH's Motion to Transfer and Motion to Dismiss must be filed on or before August 10, 2011;
(b) Defendant's Reply briefs in support of its Motion to Transfer and Motion to Dismiss must be filed on or before August 31, 2011;
(c) The hearing on DISH's Motions shall be held on September 14, 2011 at 9:00 a.m.
IT IS SO STIPULATED.
DATED: June 3, 2011 GIRARD GIBBS LLP Attorneys at Law By: Eric H. Gibbs 601 California Street, Suite 1400 San Francisco, California 94104Telephone: (415) 981-4800 Facsimile: (415) 981-4846 Andrew N. Friedman (firstname.lastname@example.org) Douglas J. McNamara (email@example.com) COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, Suite 500 Washington, DC 20005 Telephone: 202-408-4600 Facsimile: 202-408-4699 Interim Class Counsel for NANSEE PARKER and PHONG PHAM, on behalf of themselves and those similarly situated DATED: June 3, 2011 COBLENTZ, PATCH, DUFFY & BASS LLP 23 By: Richard R. Patch Attorneys for Defendant DISH NETWORK L.L.C
PURSUANT TO STIPULATION, IT IS SO ORDERED. 2 3
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