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Los Gatos Mercantile, Inc. v. Ei Dupont De Nemours and Co.

United States District Court, Ninth Circuit

June 14, 2013

LOS GATOS MERCANTILE, INC., d/b/a LOS GATOS ACE HARDWARE, FRED SWAIM, INC. d/b/a QUALITY AUTO PARTS, ACE HARDWARE OF SOUTH WALTON, INC., LEXINGTON HOME CENTER, LLC, R.F. COLE, INC., d/b/a BREWERS PAINT CENTER, CUSIMANO CARSTAR COLLISION, INC., and THE CARPETSHOPPE, INC., on behalf of themselves and all others similarly situated, Plaintiffs,
v.
E.I. DUPONT DE NEMOURS AND COMPANY, HUNTSMAN INTERNATIONAL LLC, KRONOS WORLDWIDE, INC., and MILLENNIUM INORGANIC CHEMICALS, INC., Defendants.

ROBERT D. HALLMAN, (No. 239949) ARNOLD & PORTER LLP, San Francisco, CA, Attorneys for Defendant MILLENNIUM INORGANIC CHEMICALS, INC.

PRATT & ASSOCIATES BEN F. PIERCE GORE, Attorneys for Plaintiffs.

STIPULATION EXTENDING TIME FOR DEFENDANTS TO RESPOND TO COMPLAINT (CIVIL LOCAL RULE 6-1(a)) AND STIPULATED REQUEST FOR ORDER CONTINUING INITIAL CASE MANAGEMENT AND RELATED DEADLINES (CIVIL LOCAL RULE 6-1(b) & 6-2); [PROPOSED ORDER]

SUSAN ILLSTON, District Judge.

RECITALS

1. Plaintiffs Los Gatos Mercantile, Inc. et al. filed on March 15, 2013 the Complaint for Damages, Equitable and Injunctive Relief under the antitrust, consumer protection and unjust enrichment laws of certain states on behalf of a putative class of indirect purchasers of titanium dioxide ("Indirect Purchaser Complaint").

2. Defendants E.I. DuPont de Nemours and Company, Huntsman International LLC and Millennium Inorganic Chemicals, Inc. were served with the Complaint on March 22, 2013. Defendant Kronos Worldwide, Inc. was served with the Complaint on April 12, 2013.

3. There is pending before Judge Richard D. Bennett of the District Court for the District of Maryland, a case against the same Defendants alleging a violation of the Sherman Act ยง 1 on behalf of a certified class of direct purchasers of titanium dioxide. In re Titanium Dioxide Antitrust Litigation , Master Docket No. 10-CV-00318 (RDB) ("Direct Purchaser Case"). The Direct Purchaser Case was filed on February 9, 2010 and is set for trial on September 9, 2013.

4. In light of the fact that the Indirect Purchaser Complaint and the Direct Purchaser Case are related in certain ways, and that the Direct Purchaser Case will proceed to trial in less than six months, the Parties wish to avoid unnecessarily burdening themselves or the Court with the responses to the Indirect Purchaser Complaint until the Direct Purchaser case has been resolved at trial.

5. So that this time may be productively used, Defendants have agreed to support modification of the Protective Order in In re Titanium Dioxide Antitrust Litigation or support such other means as necessary in order for the Plaintiffs' Counsel in the Indirect Purchaser Complaint to receive unredacted access to all sealed filings made in the Direct Purchaser Case.

6. Pursuant to Local Rule 6-1(a), the parties have agreed that Defendants may have an extension to November 26, 2013 to respond to the Indirect Purchaser Complaint.

7. Pursuant to Local Rules 6-1(b) and 6-2, the parties also request that the Court continue the initial case management conference and all related deadlines to a suitable date following the stipulated November 26, 2013 deadline for the response to the complaint. The parties believe that the Rule 26 discussions, the initial disclosures, and the case management conference will be more fruitful once both parties know whether Plaintiffs will file an amended complaint prior to Defendants' responses and whether Defendants will respond to the Indirect Purchaser Complaint or an amended complaint.

8. There have been no prior time modifications in this case, and the only currently scheduled event that the proposed time modification will impact is the initial case management conference which is presently set for June 21, 2013.

STIPULATION

WHEREAS, the parties stipulate and agree as follows:

a. On or before October 15, 2013, Plaintiffs shall notify Counsel for Defendants as to whether Plaintiffs intend to file an amended complaint.

b. Provided that they give notice to Defendants as set forth above, Plaintiffs may file an amended or consolidated and amended complaint on or before November 26, 2013. This provision is without prejudice to Plaintiffs' right to amend their complaint, after the filing of Defendants' response, pursuant to Fed.R.Civ.P. 15(a)(1)(B).

c. Defendants will have 45 days from the date an amended complaint is filed, to respond, provided that Defendants' response will not be due anytime before November 26, 2013. In the event that Plaintiffs elect not to file an amended complaint, Defendants will respond to the Indirect Purchaser Complaint on or before November 26, 2013.

d. The parties request that the Court extend the date of the initial case management conference, currently set for June 21, 2013, and all related deadlines, to a suitable date following the stipulated November 26, 2013 deadline for the response to the Indirect Purchaser Complaint.

e. If a related action is filed in any court, on behalf of a putative class of indirect purchasers of Titanium Dioxide, Defendants will attempt to enter into a similar stipulation with the parties to said related action. If Defendants are unable to do so, Plaintiffs Los Gatos Mercantile, Inc. et al. and Defendants will negotiate new deadlines for Defendants' response to the Indirect Purchaser Complaint and the deadlines set forth in paragraphs (a)-(c) of this Stipulation shall no longer be in force.

f. Defendants will support modification of the Protective Order in In re Titanium Dioxide Antitrust Litigation or support such other means as necessary in order for the Plaintiffs' Counsel in the Indirect Purchaser Complaint to receive unredacted access to all sealed filings made in the Direct Purchaser Case.

PROPOSED ORDER

Pursuant to the stipulation of the parties, (a) the last day for the parties to meet and confer regarding initial disclosures, early settlement, ADR process, and discovery plan; file ADR Certification signed by Parties and Counsel; and file either Stipulation to ADR Process or Notice of Need for ADR Phone Conference is continued to January 10, 2014; (b) the last day to file Rule 26(f) Report, complete initial disclosures or state objections in Rule 26(f) Report, and file Case Management Statement is continued to January 24, 2014; and (c) the Initial Case Management Conference is reset for _______________ at 2:30 p.m. in Courtroom 10, 19th Floor.


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