UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION
August 30, 2011
WHITTLESTONE, INC., A CALIFORNIA SBA 18 CORPORATION, ASSIGNED TO THE HON. SAUNDRA B. PLAINTIFF,
HANDI-CRAFT COMPANY, A MISSOURI CORPORATION,
The opinion of the court was delivered by: Hon. Saundra B. Armstrong United States District Court Judge
STIPULATION AND ORDER TO MODIFY ORDER FOR PRE-TRIAL PREPARATION TO ALLOW FILING AND FIRST AMENDED COUNTER-CLAIM OF FIRST AMENDED ANSWER TO SECOND AMENDED COMPLAINT
Armstrong, Courtroom Action Filed: September 4, 2008
Pursuant to Civil Local Rules 7-1(a)(5) and 7-12 and Federal Rules of Civil Procedure("FRCivP") 16(b)(4), Plaintiff Whittlestone, Inc. ("Whittlestone") and Defendant Handi-Craft Company ("Handi-Craft"), by and through their counsel, hereby stipulate to the following: WHEREAS the Court entered an Order for Pre-Trial Preparation on May 20, 2011.
The deadline for amending the pleadings, as established by such Order, was June 8, 2011.
WHEREAS Handi-Craft represents that on July 8, 2011 it acquired from a third party various e-mails exchanged between a resident of the United Kingdom and the principal of Whittlestone.
WHEREAS Handi-Craft believes that the communications in the above e-mailsprovide it with facts supporting an affirmative defense of fraud in the inducement as to the claims made in Plaintiff's Second Amended Complaint. Handi-Craft also believes that the e-21 mails provide it with facts supporting a cause of action against Whittlestone for fraud in the inducement.
WHEREAS Handi-Craft represents that, prior to July 8, 2011, it was not in possession of the above e-mails and did not know they existed. In addition, Handi-Craft represents that it 25 was not, prior to July 8, 2011, otherwise aware of the facts contained in the e-mails nor was it in possession of documents or other information that would have permitted it to ascertain facts 2 in support of its claim for fraud in the inducement at any time before July 8, 2011.
WHEREAS Handi-Craft prepared a [Proposed] First Amended Answer to SecondAmended Complaint and First Amended Counter-Claim containing both an affirmative 5 defense and cause of action for fraud in the inducement and forwarded it to counsel for Whittlestone on July 29, 2011. for Whittlestone requesting that Handi-Craft provide Whittlestone with facts supporting good 10 cause for modifying the Order for Pretrial Preparation and permitting the filing of its proposed 11 amended answer and counter-claim. Handi-Craft responded to Whittlestone's request on August 5, 2011. Whittlestone agreed to stipulate to the filing of Handi-Craft's proposed 13 amended answer and counter-claim on August 8, 2011. of this stipulation.
WHEREAS on August 2, 2011, Handi-Craft received correspondence from counselWHEREAS Handi-Craft asserts that good cause exists for the relief requested by wayAccordingly, Handi-Craft respectfully requests an Order from the Court as follows:1. That the May 20, 2011 Order for Pretrial Preparation be modified to allow Handi-Craft to file its First Amended Answer to Second Amended Complaint and First Amended Counter-Claim, attached hereto as Exhibit A, no later than 7 days following notice of the Court's execution of an Order pursuant to this Stipulation.
IT IS SO STIPULATED.MORGAN, FRANICH, FREDKIN & MARSH
David A. Kays Dated: August 19, 2011 ByDavid A. Kays Attorneys for Plaintiff/Counter-Defendant WHITTLESTONE, INC.
DATED: August 19, 2011
BURNHAM BROWN HERZOG CREBS LLP By ROHIT A. SABNIS Attorneys for Defendant/Counter-Claimant HANDI-CRAFT COMPANY
ORDERPURSUANT TO STIPULATION, IT IS SO ORDERED.
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