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Richard Noll, Individually and On Behalf of All Others Similarly Situated v. Ebay Inc

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


September 24, 2012

RICHARD NOLL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFF,
v.
EBAY INC.,
DEFENDANT.

The opinion of the court was delivered by: Judge: Hon. Edward J. Davila

KEITH R. VERGES (kverges@figdav.com) PARKER D. YOUNG (parker.young@figdav.com) 2 RAYMOND E. WALKER (ray.walker@figdav.com 3 FIGARI & DAVENPORT, L.L.P. 901 Main Street, Suite 3400 4 Dallas, Texas 75202 Tel: (214) 939-2000 Fax: (214) 939-2090 (Admitted Pro Hac Vice) SHAWN T. LEUTHOLD VERA BROOKS (leuthold@aol.com) (vbrooks@thompsonbrookslaw.com) LAW OFFICE OF SHAWN T. LEUTHOLD THOMPSON & BROOKS 1671 The Alameda #303 412 E. Madison Street, Suite 900 San Jose, California 95126 Tampa, Florida 33602 Tel: (408) 924-0132 Tel: (813) 387-1822 Fax: (408) 924-0134 Fax: (813) 387-1824 (Admitted Pro Hac Vice) ATTORNEYS FOR PLAINTIFF RICHARD NOLL

STIPULATION AND [PROPOSED]ORDER REGARDING DISMISSAL OF RELATED CASE PAGE 5 CASE NO.5:11-CV-04585-EJD Trial Date: Not yet set Courtroom: 4, 5th Floor

This Stipulation is entered into pursuant to Local Rule 7-12, by and between Plaintiffs Richard Noll ("Noll") and Rhythm Motor Sports, LLC ("Rhythm") and Defendant eBay Inc. 25 ("eBay") (collectively, the "Parties"), by and through the respective undersigned counsel. 26 27 28 Intervene, for Joinder and/or for Substitution Pro Tanto ("Motion to Intervene") [Doc. No. 69] 3 and simultaneously filed a separate lawsuit against eBay styled Rhythm Motor Sports, LLC v. 4 eBay Inc., Cause No. CV12-03601 PJH, in the United States District Court for the Northern District of California (the "Separate Rhythm Lawsuit"); 6 7 the Motion to Intervene; 9 in Intervention herein asserting the same claims that Rhythm has asserted in the Separate 11 Rhythm Lawsuit; 12

WHEREAS, the Parties agree that, for purposes of judicial economy and efficiency,

Rhythm's claims should be litigated in this Action, rather than the Separate Rhythm Lawsuit; 14 15 of the class it proposes to represent relate back to a date prior to July 10, 2012, for purposes of 17 the applicable statutes of limitations, the Parties nevertheless agree that all applicable statutes of 18 limitations governing such claims were fully and properly tolled as of the filing of the Separate 19 Rhythm Lawsuit on July 10, 2012; 20 governing Rhythm's claims and the claims of the class asserted herein should therefore be 25 deemed to have been tolled effective no later than July 10, 2012; 26 27 28

WHEREAS, on July 10, 2012, Rhythm filed its Notice of Motion and Motion to

WHEREAS, on September 4, 2012, the Court entered an Order [Doc. No. 83] granting

WHEREAS, on September 18, 2012, Rhythm filed its Original Class Action Complaint

WHEREAS, although the Parties disagree as to whether Rhythm's claims and the claims

WHEREAS, the Parties agree that if Rhythm voluntarily dismisses the Separate Rhythm Lawsuit, Rhythm's ability to pursue its claims in this case should be the same as if it were asserting those claims within the Separate Rhythm Lawsuit and that the statutes of limitations Parties wish to set forth their agreement regarding the applicability of any statute of limitations 3 defenses to Rhythm's claims: 4 asserted with respect to the claims asserted by Rhythm or the class it proposes to represent 6 7 herein, the Parties agree and request that the Court enter an order that the running of any applicable statute of limitations shall be considered tolled as of no later than July 10, 2012. This 9 stipulation is without prejudice to the Parties' respective positions regarding whether the statutes 10 of limitations governing Rhythm's claims were tolled prior to July 10, 2012, or whether the 11 assertion of Rhythm's claims relates back to a date prior to July 10, 2012, and the Parties 12 expressly reserve their rights regarding such issues. Any issues regarding the tolling of 13 limitations or the relation back of Rhythm's claims prior to July 10, 2012, shall be subsequently 14 15 presented to the Court by the Parties when such a determination becomes necessary and appropriate.

IT IS SO STIPULATED.

WHEREAS, in order to facilitate the dismissal of the Separate Rhythm Lawsuit, the NOW THEREFORE, for purposes of any statute of limitations defense that may be

(Admitted Pro Hac Vice) 16 17 18 PURSUANT TO STIPULATION IT IS SO ORDERED: 19 20 Dated:______________ 9/24/2012 __________ ____________________________________ 21 UNITED STATES DISTRICT JUDGE

perjury that the concurrence in the filing of this document has been obtained from its signatories. 4

FILER'S ATTESTATION:

Pursuant to General Order No. 45, 5X(B) regarding signatures, I attest under penalty of /s/ Keith R. Verges 0 the Court's CM/ECF system pursuant to the local rules of this Court on this 20th day of 11 12 /s/ Keith R. Verges Keith R. Verges

CERTIFICATE OF SERVICE

I hereby certify that all counsel of record will be served with a copy of this document via September, 2012. Attorneys for Plaintiffs RICHARD NOLL and RHYTHM MOTOR SPORTS, LLC

20120924

© 1992-2012 VersusLaw Inc.



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