Opinion
CASE NO. 5:10-cv-02797-EJD
10-05-2011
ACTUATE CORPORATION, a California corporation Plaintiff, v. FINITI LLC; and DOES 1 through 10, Defendants.
Jeffrey H. Lowenthal (State Bar No.111763) Jan J. Klohonatz (State Bar No. 111718) STEYER LOWENTHAL BOODROOKAS Attorneys for Defendant Finiti Group LLC LEE TRAN & LIANG APLC James M. Lee (State Bar No. 192301) Daniel J. Taylor (State Bar No. 241404) Attorneys for Plaintiff Actuate Corporation
Jeffrey H. Lowenthal (State Bar No.111763)
Jan J. Klohonatz (State Bar No. 111718)
STEYER LOWENTHAL BOODROOKAS
Attorneys for Defendant Finiti Group LLC
LEE TRAN & LIANG APLC
James M. Lee (State Bar No. 192301)
Daniel J. Taylor (State Bar No. 241404)
Attorneys for Plaintiff Actuate Corporation
STIPULATION AND ORDER EXTENDING SCHEDULED DATES
AND GRANTING LEAVE TO FILE FIRST AMENDED ANSWER TO
COMPLAINT AND COUNTERCLAIMS; DECLARATION OF JAN J. KLOHONATZ
By this stipulation and order the parties to the above-captioned action respectfully request (a) that defendant Finiti Group, LLC ("Finiti") be granted leave to file a First Amended Answer to Complaint and Counter-Claims, and (b) that certain dates on the case schedule be extended for the reasons stated below. There is no trial date in this case and the only date currently on the Court's calendar is a Preliminary Pretrial Conference set for December 16, 2011. Accordingly, the parties stipulate as follows:
WHEREAS, upon reassignment of the above-captioned case to the Honorable Edward J. Davila, the Court on or about May 11, 2011 entered a Modified Scheduling Order;
WHEREAS, on or about July 29, 2011, this Court granted the parties request to make certain modifications to the case schedule;
WHEREAS, the only date currently on the Court's calendar is a Preliminary Pretrial Conference set for December 16, 2011;
WHEREAS, the parties have already selected and retained a mediator and would like the opportunity to conduct a meaningful mediation;
WHEREAS, plaintiff Actuate Corporation has stipulated that Finiti may be granted leave to file a First Amended Answer to Complaint and Counter-Claims;
WHEREAS, certain discovery issues are pending which the parties are trying to work out, and have participated in an person meeting on August 31, 2011;
WHEREAS, because of the witnesses' and counsels' schedules the parties have encountered difficulties setting certain critical depositions, some of which will require extensive travel;
WHEREAS, the parties also have determined that further discovery, in addition to what previously was anticipated, will be necessary, including discovery relating to Finiti's First Amended Answer to Complaint and Counter-Claims, in order to conduct a meaningful mediation, analyze and prepare dispositive motions, and prepare for trial;
WHEREAS, the parties would like the opportunity to engage in a mediation sufficiently in advance of other events in the case schedule to see whether the case can be resolved, thus making such other events unnecessary;
WHEREAS, the date for the last day to mediate has previously been modified twice by stipulation and order and once by this Court's Modified Scheduling Order;
WHEREAS, the other dates sought to be moved by this stipulation and order were modified in the Court's Modified Scheduling Order and in the July 29, 2011 stipulation and order; and
WHEREAS, the time modifications will not have a material effect on the schedule of the case because (a) a trial date has not yet been set, (b) the only date currently on the Court's calendar - the December 16, 2011 Preliminary Pretrial Conference - will not be affected as the parties are not asking to move that date, and (c) the parties are asking only that the specified events be moved by no more than three (3) months, which will include the entire holiday season;
NOW, THEREFORE, WITH GOOD CAUSE APPEARING, the parties, by and through their respective counsel, hereby stipulate and agree as follows:
The case schedule may be modified as follows:
Deadline for Completion of ADR/Mediation: January 31, 2012
Close of All Discovery: January 31, 2012
Last Date for Hearing Dispositive Motions: April 27, 2012
Finiti may file a First Amended Answer to Complaint and Counter-Claims in the form attached hereto as Exhibit A. Plaintiff expressly reserves the right to bring any Motion to Dismiss or Strike the proposed First Amended Answer to Complaint and Counter-Claims and/or any of the causes of action or allegations alleged therein.
STEYER LOWENTHAL BOODROOKAS
ALVAREZ & SMITH LLP
Jeffrey H. Lowenthal
Jan J. Klohonatz
Attorneys for Defendant Finiti Group, LLC
LEE TRAN & LIANG APLC
Daniel Taylor
Attorneys for Plaintiff Actuate Corporation
PURSUANT TO STIPULATION, IT IS SO ORDERED.
Defendant shall file its First Amended Answer to Complaint and Counter-Claims as a separate docket entry on or before October 7, 2011.
EDWARD J. DAVILA
DISTRICT COURT JUDGE
DECLARATION OF JAN J. KLOHONATZ
I, Jan J. Klohonatz, declare as follows:
1. I am an attorney at law licensed to practice before all of the courts of the State of California and before this Court. I am an attorney at the law firm of Steyer Lowenthal Boodrookas Alvarez & Smith LLP, attorneys of record for Defendant Finiti Group, LLC in the above-referenced matter. I make this Declaration of my own personal knowledge, and if called as a witness, I would and could testify competently to the matters stated herein. I make this declaration in support of the Stipulation and Order Extending Scheduled Dates and Granting Leave to File First Amended Answer to Complaint and Counter-Claims.
2. Upon reassignment of the above-captioned case to the Honorable Edward J. Davila, the Court on or about May 11, 2011 entered a Modified Scheduling Order. On or about July 29, 2011, this Court granted the parties request to make certain modifications to the case schedule.
3. Plaintiff Actuate Corporation has stipulated that Finiti may be granted leave to file a First Amended Answer to Complaint and Counter-Claims.
4. The parties already have selected and retained a mediator.
5. Certain discovery issues are pending which the parties are trying to work out, and have participated in an person meeting on August 31, 2011. Because of the witnesses' and counsels' schedules the parties have encountered difficulties setting certain critical depositions, some of which will require extensive travel.
6. The parties have determined that further discovery, in addition to what previously was anticipated, will be necessary, including discovery relating to Finiti's First Amended Answer to Complaint and Counter-Claims, in order to conduct a meaningful mediation, analyze and prepare dispositive motions, and prepare for trial.
7. The parties would like additional time to prepare for and engage in the mediation to, among other things, conduct all the necessary discovery and engage in discussion about resolution of the case in advance of the mediation. The parties also would like the opportunity to engage in a mediation sufficiently in advance of other events in the case schedule to see whether the case can be resolved, thus making such other events unnecessary.
8. The date for the last day to mediate has previously been modified twice by stipulation and order and once by this Court's Modified Scheduling Order.
9. The time modifications will not have a material effect on the schedule of the case because (a) a trial date has not yet been set, (b) the only date currently on the Court's calendar -the December 16, 2011 Preliminary Pretrial Conference - will not be affected as the parties are not asking to move that date, and (c) the parties are asking only that the specified events be moved by no more than three (3) months, which will include the entire holiday season.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 29th day of September, 2011, at San Francisco, California.
JAN J. KLOHONATZ
CERTIFICATE OF SERVICE
I hereby certify that on September 29, 2011, I electronically filed the foregoing STIPULATION AND ORDER EXTENDING SCHEDULED DATES AND GRANTING LEAVE TO FILE FIRST AMENDED ANSWER TO COMPLAINT AND COUNTERCLAIMS; DECLARATION OF JAN J. KLOHONATZ with the Clerk of the Court using the ECF system which will send notification of such filing to all attorneys of record registered for electronic filing.
Linda Rorem