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Chris Werdebaugh, Individually and On Behalf of Other Similarly Situated v. Blue Diamond Growers

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION


May 13, 2013

CHRIS WERDEBAUGH, INDIVIDUALLY AND ON BEHALF OF OTHER SIMILARLY SITUATED,
PLAINTIFF,
v.
BLUE DIAMOND GROWERS,
DEFENDANT.

The opinion of the court was delivered by: Hon. Lucy H. Koh United States District/Magistrate Judge

STIPULATION AND [PROPOSED] ORDER REGARDING AMENDED COMPLAINT AND DISMISSAL WITH PREJUDICE OF SONG-BEVERLY ACT AND MAGNUSON-MOSS ACT CLAIMS

Judge: Hon. Lucy H. Koh

the parties hereby stipulate and agree as follows: 3 several respects and should be dismissed in its entirety; 5 6 the Court ordered the parties to meet and confer to discuss Blue Diamond's concerns 7 regarding the sufficiency of the allegations in the Complaint and further ordered Blue 8 Pursuant to the Court's Minute and Case Management Order dated May 1, 2013, WHEREAS, Blue Diamond contends that Plaintiff's Complaint is deficient in WHEREAS, pursuant to the May 1, 2013 Minute and Case Management Order, Diamond to identify deficiencies in the Complaint that Plaintiffs will attempt to cure in an 9 amended complaint; 10

WHEREAS, the parties have so met and conferred as required by the Court's May 1, 2013 Order; 12 13 every cause of action in the Complaint, Blue Diamond contends that Plaintiff's first, 14 second, third, fourth, fifth, and sixth causes of action fail to meet the pleading requirement 15 of Federal Rule of Civil Procedure 8(a), as well as the heightened pleading requirement 16 of Federal Rule of Civil Procedure 9(b). Accordingly, Blue Diamond identifies the 17 following deficiencies in the allegations related to these causes of action: 18

WHEREAS, without waiving its alternative arguments for dismissal of each and  The Complaint fails to specify which Blue Diamond products are at issue in this case, i.e., which products, if any, were purchased by Plaintiff and when.  The Complaint fails to specify which allegedly unlawful representations appeared on the particular Blue Diamond products allegedly purchased by Plaintiff.

 The Complaint fails to specify the particular state or federal regulations that Blue Diamond allegedly violated with respect to specific Blue Diamond products.

 The Complaint fails to specify how Blue Diamond allegedly violated particular state or federal regulations with respect to specific Blue Diamond products.

 The Complaint fails to clearly specify the particular statements Plaintiff 2 relied upon when purchasing the identified Blue Diamond products and 3 when Plaintiff so relied.

 The Complaint fails to sufficiently identify which particular Blue Diamond 5 statements are allegedly likely to deceive reasonable consumers. 6

 The allegations referring generically to "Misbranded Food Products" are 7 insufficient to specifically identify either the products at issue or the 8 particular state or federal regulations allegedly violated. 9

THEREFORE, the parties hereby stipulate and agree as follows:

1. Plaintiff agrees to attempt to cure the above-identified deficiencies in the Complaint with an amended complaint to be filed by May 24, 2013. 12

2. Plaintiff agrees to dismiss with prejudice both the eighth cause of action for 13 violation of the Song-Beverly Act and the ninth cause of action for violation of the 14 Magnuson-Moss Act. 15

IT IS SO STIPULATED.

PRATT & ASSOCIATES DATED: May 10, 2013 By: /S/ Ben F. Pierce Gore 18 Ben F. Pierce Gore Attorneys for Plaintiff Chris Werdebaugh 19 20 HANSON BRIDGETT LLP 21 22 DATED: May 10, 2013 By: /S/ Megan Oliver Thompson Megan Oliver Thompson 23 Attorneys for Defendant Blue Diamond Growers

PURSUANT TO STIPULATION, IT IS SO ORDERED.

20130513

© 1992-2013 VersusLaw Inc.



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