UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
September 26, 2011
LILIANA CARDENAS, ON BEHALF OF HERSELF
AND ALL OTHER SIMILARLY SITUATED CALIFORNIA RESIDENTS,
NBTY, INC., A DELAWARE CORPORATION AND REXALL SUNDOWN, INC., A FLORIDA CORPORATION, DEFENDANTS.
JOINT STIPULATION AND ORDER RESETTING PRETRIAL STATUS CONFERENCE AND SETTING SCHEDULE REGARDING PLAINTIFF'S SECOND AMENDED COMPLAINT
The parties, by and through their undersigned counsel of record, hereby stipulate as follows:
WHEREAS, on June 14, 2011, Plaintiff filed her Complaint and initiated the above- referenced action;
WHEREAS, on July 5, 2011, the parties entered into a stipulation providing that Plaintiff would file an Amended Complaint on July 25, 2011, and Defendants would have until August 24, 2011, to file a responsive pleading thereto;
WHEREAS, on July 25, 2011, Plaintiff filed her Amended Complaint;
WHEREAS, on August 24, 2011, Defendants' counsel filed a motion to dismiss Plaintiff's Amended Complaint and the parties stipulated to a briefing schedule whereby Plaintiff's Opposition brief was due on October 3, 2011, Defendants' Reply brief was due on October 24, 2011, and Defendants' motion was set for hearing on November 7, 2011 and 10:00 a.m. (Dkt # 15);
WHEREAS, the parties also stipulated to continue the initial Pretrial Status Conference until sometime after Defendants' Motion to Dismiss was heard and decided (Dkt #15);
WHEREAS, Plaintiff has considered Defendants' Motion to Dismiss and decided it would be most efficient and best facilitate the parties' litigation of this case to file a Second Amended Complaint in lieu of formally responding to Defendants' Motion to Dismiss;
WHEREAS, Defendants dispute whether deficiencies in the Complaint can be cured but consent to the amendment and agree that any such amendment would render the pending Motion to Dismiss moot;
WHEREAS, the parties have agreed that Plaintiff will have 30 days from the date of this stipulation to file a Second Amended Complaint;
WHEREAS, Defendants will have 30 days from the date Plaintiff's Second Amended Complaint is filed to answer or otherwise respond;
WHEREAS, should Defendants chose to file a Motion to Dismiss the Second Amended Complaint, the parties will seek to set a mutually agreeable briefing schedule that takes into account the available hearing dates and pre-existing scheduling conflicts and obligations of each parties' counsel, among other things;
WHEREAS, the parties agree that it would be most efficient and facilitate the parties' ability to meet and confer about the matters set forth in the Court's Order to continue the initial Pretrial Status Conference and time for the parties to file their status report(s) until after Defendants have answered or until after Defendants' motion to dismiss (and any other accompanying motion), should Defendants chose to file one, is heard and decided; and
WHEREAS, the parties further agree that by entering into this stipulation Defendants do not waive any defenses or submit to the jurisdiction of the Court.
NOW, THEREFORE, the parties stipulate as follows:
1. Plaintiff will file her Second Amended Complaint on October 24, 2011;
2. Defendants will file their response to the Second Amended Complaint on November 23, 2011.
3. The hearing currently set for November 7, 2011, on Defendants' Motion to Dismiss the First Amended Complaint is hereby taken off calendar;
4. The initial Status Conference is continued to December 19, 2011 at 3:00 p.m. The parties shall file their status reports fourteen (14) days prior to the status conference.
Dated: September 22, 2011 SIDLEY AUSTIN LLP By: /s/ David R. Carpenter David R. Carpenter Attorneys for Defendants NBTY, Inc., and Rexall Sundown, Inc. Dated: September 22, 2011 BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. By: /s/ Patricia N. Syverson Patricia N. Syverson Attorneys for Plaintiff Liliana Cardenas
IT IS SO ORDERED.
CERTIFICATE OF SERVICE
I hereby certify that on September 22, 2011, I electronically filed the foregoing JOINT STIPULATION AND [PROPOSED] ORDER RESETTING PRETRIAL STATUS CONFERENCE AND SETTING SCHEDULE REGARDING PLAINTIFF'S SECOND AMENDED COMPLAINT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the e-mail addresses denoted on the Electronic Mail notice list, and I hereby certify that I have mailed the foregoing document via the United States Postal Service to the non-CM/ECF participants indicated on the Manual Notice list.
I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on September 22, 2011. Patricia N. Syverson Patricia N. Syverson
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