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Little Wishes v. Little Wish Foundation

United States District Court, N.D. California

May 8, 2017

LITTLE WISHES, Plaintiff.
v.
LITTLE WISH FOUNDATION, Defendant.

          Stuart E. Jones (SBN 104566) sjones@nielsenhaley.com Nielsen Haley & Abbott LLP Attorneys for Defendant LITTLE WISH FOUNDATION, INC.

          DEFENDANT LITTLE WISH FOUNDATION, INC.'S EX PARTE APPLICATION FOR AN ORDER EXTENDING TIME TO RESPOND TO PLAINTIFF'S FIRST AMENDED COMPLAINT; PROPOSED ORDER

          HONORABLE MAXINECHESEY UNITED STATES DISTRICT JUDGE

         EX PARTE APPLICATION

         Defendant Little Wish Foundation, Inc., hereby applies to the Court ex parte for an Order extending time to respond to Plaintiff's First Amended Complaint.

         On Aril 24, 2017, this Court entered an Order permitting Plaintiff to file its First Amended Complaint. The Order was silent as to the deadline for Defendant's filing of a responsive pleading. If no time is specified, the answer is due within the time remaining for response to the original complaint or within 14 days after service of the amended complaint, whichever is longer. [FRCP 15(a)(3)] Plaintiff's First Amended Complaint was filed on April 25, 2017. ECF 55. Therefore, a responsive pleading is due on or before May 9, 2017.

         On May 4 and 5 2017, The undersigned counsel has contacted counsel for Plaintiff Little Wishes by both voice-mail and by e-mail in order to request a stipulation to extend time to respond to Plaintiff's First Amended Complaint. Plaintiff's counsel has not responded to these requests.

         On May 5, 2017, the undersigned advised Plaintiff's counsel by voice-mail and e-mail that this ex parte request for an Order allowing an extension of time to respond to Plaintiff's First Amended Complaint would be made to the Court. Plaintiff's counsel finally responded that she would not consent to this request until after the undersigned agreed to a date and time to meet & confer over a discovery dispute.

         Defendant has not sought or obtained any previous extensions of time. Such an extension of time is both timely and is necessary to allow Defendant additional time to prepare a response to Plaintiff's First Amended Complaint which presents complex trademark, unfair competition and common law claims. Due to ongoing settlement negotiations, responding to Plaintiff's discovery requests, responding to Plaintiff's meet & confer letters and other related matters, Defendant has not been able to complete its preparation of the responsive pleading.

         Defendant requests an additional 7 days by which to file a response to Plaintiff's First Amended Complaint.

         DECLARATION OF STUART E. JONES

         On Aril 24, 2017, this Court entered an Order permitting Plaintiff to file its First Amended Complaint. The Order was silent as to the deadline for the filing of a responsive pleading. If no time is specified, the answer is due within the time remaining for response to the original complaint or within 14 days after service of the amended complaint, whichever is longer. [FRCP 15(a)(3)] Plaintiff's First Amended Complaint was filed on April 25, 2017. ECF 55. Therefore, a responsive pleading is due on or before May 9, 2017.

         On May 4 and 5 2017, I contacted counsel for Plaintiff Little Wishes by both voice-mail and by e-mail in order to request a stipulation to extend time to respond to Plaintiff's First Amended Complaint. Plaintiff's counsel has not responded to these requests.

         On May 5, 2017, I advised Plaintiff's counsel by voice-mail and e-mail that this ex parte request for an Order allowing an extension of time to respond to Plaintiff's First Amended Complaint would be made to the Court. Plaintiff's counsel finally responded that she would not consent to this request until after the undersigned agreed to a date and time to meet & confer over a discovery dispute. I am in the process of scheduling the meet and confer with Plaintiff's counsel, however, Plaintiff's counsel has advised that she is working on other matters and cannot take calls today. I am concerned that this process will somehow break down and that my request for an extension of time will not be granted before the deadline to file a responsive pleading has expired.

         Defendant has not sought or obtained any previous extensions of time. Such an extension of time is both timely and is necessary to allow Defendant additional time to prepare a response to Plaintiff's First Amended Complaint which presents complex trademark, unfair competition and common law claims. Due to ongoing settlement negotiations, responding to Plaintiff's discovery requests, responding to Plaintiff's meet & confer ...


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