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Rob Stutzman, Jonathan Wheeler, Gloria Lauria, David Reimers and v. Lance Armstrong; Penguin Group (Usa)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 27, 2013

ROB STUTZMAN, JONATHAN WHEELER, GLORIA LAURIA, DAVID REIMERS AND SCOTT ARMSTRONG, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
LANCE ARMSTRONG; PENGUIN GROUP (USA), INC.;
G.P. PUTNAM'S SONS;
THE BERKLEY PUBLISHING GROUP;
RANDOM HOUSE, INC.; BROADWAY BOOKS;
CROWN PUBLISHING GROUP;
THOMAS W. WEISEL;
WILLIAM J. STAPLETON; AND DOES 1-50, INCLUSIVE,
DEFENDANTS.

(See Signature Page for Additional Parties and Counsel)

Assigned for all purposes to the Honorable Morrison C. England. Jr. STIPULATION AND ORDER RE FILING OF PLAINTIFFS' FIRST AMENDED CLASS ACTION COMPLAINT, SCHEDULING PARTIES' RULE 26(f) CONFERENCE, FILING OF PARTIES' JOINT STATUS REPORT, AND BRIEFING SCHEDULE FOR DEFENDANTS' RESPONSE(S) TO PLAINTIFFS' FIRST AMENDED CLASS ACTION COMPLAINT

Plaintiffs, Rob Stutzman, Jonathan Wheeler, Gloria Lauria, David Reimers and Scott Armstrong (collectively, "Plaintiffs"); and Defendant Penguin Group (USA) Inc. ("Penguin"), also sued as G.P. Putnam's Sons and The Berkley Publishing Group; Defendant Random House, Inc. ("Random House"), also sued as Broadway Books and Crown Publishing Group (together, the "Publisher Defendants"); and Defendant Lance Armstrong ("Defendant Armstrong"), by and through their undersigned counsel, hereby stipulate and agree as follows:

WHEREAS, on January 22, 2013, Plaintiffs Stutzman and Wheeler filed a Class Action Complaint (the "Complaint") on behalf of themselves and a proposed class of California residents who purchased two books authored by Defendant Armstrong and published by the Publisher Defendants, i.e., It's Not About the Bike: My Journey Back to Life and Every Second Counts (see Dkt. No. 1); and

WHEREAS, the Complaint alleges, among other things, claims for negligent misrepresentation and fraud, as well as California statutory claims pursuant to the Consumers Legal Remedies Act ("CLRA") (Cal. Civ. Code § 1750 et seq.), the Unfair Competition Law (Cal. Bus. & Prof. Code § 17200 et seq.), and the False Advertising Law (Cal. Bus. & Prof. Code § 17500 et seq.); and

WHEREAS, the Complaint and the Summons issued by the Clerk were served on Defendant Random House on January 25, 2013; on Defendant Armstrong on January 29, 2013, and on Defendant Penguin on January 30, 2013, and Plaintiffs Stutzman and Wheeler have electronically filed the requisite proofs of service; and

WHEREAS, on January 22, 2013, this Court entered its Order Requiring Joint Status Report (the "Order") (Dkt. No. 4); and

WHEREAS, on February 5, 2013, Plaintiffs Stutzman and Wheeler filed their Certificate Confirming Service of this Court's Order Requiring Joint Status Report (Dkt. No. 6); and

WHEREAS, the parties are due to comply with the Order on or before March 26, 2013; and WHEREAS, during a teleconference held on February 11, 2013, counsel for Plaintiffs advised counsel for the Publisher Defendants that Plaintiffs Stutzman and Wheeler intend to file a First Amended Class Action Complaint (the "First Amended Complaint"), in order to, among other things, add a claim (or claims) for damages pursuant to the CLRA; and

WHEREAS, on March 7, 2013, Plaintiffs filed an 85-page First Amended Complaint adding three new plaintiffs (Gloria Lauria, David Reimers and Scott Armstrong), two new defendants (Thomas W. Weisel and William J. Stapleton), three additional books upon which they seek relief, additional claims under the CLRA and additional factual allegations; and

WHEREAS, on March 7, 2013, the First Amended Complaint was served electronically upon counsel for the Publisher Defendants and Defendant Armstrong, respectively, and arrangements were commenced to serve Defendants Weisel and Stapleton with a copy of the Summons and First Amended Complaint; and

WHEREAS, service of the Summons and First Amended Complaint upon Defendants Weisel and Stapleton has not yet been completed; and

WHEREAS, each of the Publisher Defendants intends to file in response to the First Amended Complaint, a motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure and a special motion to strike pursuant to Section 425.16 et seq. of the California Code of Civil Procedure, the so-called anti-SLAPP statute; and

WHEREAS, Defendant Armstrong presently contemplates filing in response to the First Amended Complaint, a motion to dismiss and motion to strike pursuant to Rule 12 of the Federal Rules of Civil Procedure, and possibly a special motion to strike pursuant to Section 425.16 et seq. of the California Code of Civil Procedure. and

WHEREAS, in light of the filing of the First Amended Complaint, the fact that service thereof upon Defendants Weisel and Stapleton has not yet been completed and the need for all defense counsel (including those not yet having appeared herein) to review and analyze adequately the First Amended Complaint and discuss the same with their respective clients, an extension of time from March 26, 2013, until April 12, 2013, is needed in order for all counsel to meaningfully participate in a Rule 26(f) conference and prepare the Joint Status Report; and

WHEREAS, counsel for Plaintiffs, Defendant Armstrong, Defendant Penguin and Defendant Random House have agreed to conduct a Rule 26(f) conference on March 27, 2013; and

WHEREAS, pursuant to Local Rule 144, the parties having appeared herein respectfully request that the Court approve such parties' briefing schedule for the motions to dismiss and motions to ; and

WHEREAS, this stipulation is the first extension requested by the parties relating to responding to the First Amended Complaint, is made in good faith, is not made for the purpose of delay and will not prejudice any party;

IT IS HEREBY STIPULATED AND AGREED THAT:

1. In accordance with this Court's Order, and in consideration of the needs expressed above, the parties shall conduct their Rule 26(f) conference on March 27, 2013, and shall file the Joint Status Report on or before April 12, 2013;

2. Defendants shall file their motions in response to the First Amended Complaint and papers in support thereof on or before April 26, 2013;

3. Plaintiffs shall file their briefs and other papers in opposition to the Defendants' motions to dismiss and motions to strike the First Amended Complaint on or before June 17, 2013; and

4. Defendants shall file their reply briefs and other papers in further support of the motions on or before July 12, 2013.

Respectfully submitted, WILENTZ, GOLDMAN & SPITZER, P.A. Kevin P. Roddy (SBN 128283) LAW OFFICE OF TRACEY BUCK-WALSH Tracey Buck-Walsh (SBN 131254) Dated: March 20, 2013 TURNER & ASSOCIATES C. Tab Turner (admitted pro hac vice) THE ROSSBACHER FIRM Henry H. Rossbacher (SBN 060260) By: /s/ Kevin P. Roddy Kevin P. Roddy Attorneys for Plaintiffs Dated: March 20, 2013 SIDLEY AUSTIN LLP Stephen G. Contopulos (SBN 50317) Bradley H. Ellis (SBN 110467) /s/ Stephen G. Contopulos (as authorized on By: 3/20/13) Stephen G. Contopulos Attorneys For Defendants Random House, Inc., Broadway Books, and Crown Publishing Group DORSEY & WHITNEY LLP Kent J. Schmidt (SBN 195969) Jonathan M. Herman (admitted pro hac vice) F. Matthew Ralph (admitted pro hac vice) By: /s/ Kent J. Schmidt (as authorized on 3/20/13) Kent J. Schmidt Dated: March 20, 2013 Attorneys for Defendants Penguin Group (USA), Inc., G.P. Putnam's Sons, and The Berkley Publishing Group Dated: March 20, 2013 KATTEN MUCHIN ROSENMAN LLP Zia F. Modabber (SBN 137388) Gregory S. Korman (SBN 216931) Andrew J. Demko (SBN 247320) By: /s/ Zia F. Modabber (as authorized on 3/20/13) Dated: March 20, 2013 Zia F. Modabber Attorneys for Defendant Lance Armstrong HOWRY BREEN LLP Sean Breen (pro hac vice application to be filed) By: /s/ Sean Breen (as authorized on 3/20/13) Sean Breen Attorneys for Defendant Lance Armstrong

ORDER

IT IS SO ORDERED.

20130327

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