Opinion
Case No. 5:11-cv-01199-EJD
11-23-2011
DONALD CULLEN, on behalf of himself and all others similarly situated, Plaintiff, v. NETFLIX, INC., Defendant.
DAVID F. MCDOWELL (No. 125806)
JACOB M. HARPER (No. 259463)
MORRISON & FOERSTER LLP
Attorneys for Defendant
NETFLIX, INC.
GREGORY S. WESTON (No. 239944)
JACK FITZGERALD (No. 257370)
MELANIE PERSINGER (No. 275423)
THE WESTON FIRM
Attorneys for Plaintiff
DONALD CULLEN and
the Putative Class
STIPULATION TO CONTINUE CASE
MANAGEMENT CONFERENCE AND
HEARING ON DEFENDANT'S
MOTION TO DISMISS THE SECOND
AMENDED COMPLAINT BY ONE
WEEK; DECLARATION OF DAVID F.
MCDOWELL
[L. R. 6-2, 7-12]
Current Date: December 2, 2011
Proposed Date: December 9, 2011
Time: 10:00 a.m.
Judge: Hon. Edward J. Davila
Courtroom: 1
STIPULATION AND [PROPOSED] ORDER
Plaintiff Donald Cullen ("Plaintiff") and defendant Netflix, Inc. ("Defendant") (together, the "Parties") hereby submit the following stipulated request to continue the case management conference and hearing on Defendant's Motion to Dismiss the Second Amended Complaint by one week from December 2, 2011 to December 9, 2011:
WHEREAS
1. On September 5, 2011, Plaintiff filed his Second Amended Complaint (Dkt. No. 26);
2. On October 5, 2011, Defendant filed its Motion to Dismiss the Second Amended Complaint (Dky. No. 31), with the hearing noticed for December 2, 2011 per prior stipulation and order (Dkt. No. 24);
3. Because of an unavoidable court-ordered mandatory settlement conference in another case in the Southern District of Ohio, counsel for Netflix will be unable to attend the hearing and case management conference currently scheduled in this matter for December 2, 2011. As explained more fully in the attached Declaration of David F. McDowell, counsel for Netflix has attempted to change, but cannot, the date of the conflicting settlement conference;
4. The Parties respectfully request a modest one-week continuance of the conference hearing date to December 9, 2011;
5. Netflix has not previously requested a continuance of any hearing or conference in this matter.
WHEREFORE, THE PARTIES HEREBY STIPULATE that the case management conference and hearing on Netflix's Motion to Dismiss the Second Amended Complaint be continued by one week from December 2, 2011, to December 9, 2011.
IT IS SO STIPULATED:
DAVID F. MCDOWELL
JACOB M. HARPER
MORRISON & FOERSTER LLP
David F. McDowell
Attorneys for Defendant
NETFLIX, INC.
GREGORY S. WESTON
JACK FITZGERALD
Jack Fitzgerald
Attorneys for Plaintiff
DONALD CULLEN
IT IS SO ORDERED
The Hearing and Case Management Conference are continued to January 6, 2012 at 9:00 AM and 10:00 AM respectively.
Hon. Edward J. Davila
UNITED STATES DISTRICT JUDGE
DECLARATION OF DAVID F. McDOWELL
I, David F. McDowell, state and declare:
1. I am a partner with Morrison & Foerster LLP, counsel of record for defendant Netflix, Inc. ("Defendant") in the above captioned matter, and am a member in good standing of the State Bar of California. I submit this declaration in support of the parties' Stipulation to Continue the Case Management Conference and Defendant's Motion to Dismiss the Second Amended Complaint by One Week. I have personal knowledge of the statements set forth below, which are true and correct to the best of my knowledge, and I could and would testify to them.
2. I have been ordered to engage in a mandatory settlement conference in Ehlers v. Restoration Hardware, Inc., S.D. Ohio Case No. 2:10-cv-01147, by December 5, 2011. Because of the number of parties and individuals involved, it has been extraordinarily difficult to schedule a date for this conference, and the only date available for the other parties and counsel to comply with the Court's deadline is December 2, 2011. That date, however, creates a direct conflict with the case management conference and motion to dismiss hearing in this matter.
3. I have been unable to reschedule the mandatory settlement conference or obtain a continuance of the Court's December 5 deadline.
4. Counsel for plaintiff Donald Cullen ("Plaintiff") has agreed to continue the case management conference and hearing in this matter to December 9, 2011.
5. I respectfully request, therefore, a modest one-week continuance from December
2, 2011, to December 9, 2011, for the scheduled case management conference and hearing on Defendant's motion to dismiss. I request this continuance in the interests of justice and believe this modest continuance would not unduly delay this matter.
6. Counsel has not previously sought a continuance of any hearing in this matter.
I declare under penalty of perjury that, to the best of my knowledge, the foregoing statements are true and correct. Executed on November 21, 2011, in Los Angeles, California.
David F. McDowell