Opinion
CASE NO. 11-CV-3796 LB
11-04-2011
JOHN B. KIM and DAN C. SCHUTZMAN, Individuals, on Behalf of Themselves and Others Similarly Situated, Plaintiffs, v. SPACE PENCIL, INC. D/B/A KISSMETRICS, BABYPIPS.COM, INVOLVER.COM, MOO, INC., SITENING, LLC., SHOEDAZZLE.COM INC., 8TRACKS INC., ABOUT.ME, FRIENDLY, GIGA OMNI MEDIA, INC., HASOFFERS.COM, KONGREGATE INC., LIVEMOCHA INC., ROCKETTHEME, LLC, FITNESS KEEPER, INC., SEOMOZ, INC., SHARECASH, LLC., SLIDESHARE.NET, SPOKEO, INC., SPOTIFY USA, INC., VISUALLY, CONDUIT USA, FLlTE, INC., TANGIENT, LLC, ETSY INC, AND IVILLIAGE, INC.; Defendants.
Respectfully submitted, GIBSON, DUNN & CRUTCHER LLP S. Ashlie Beringer Attorneys for Defendants SPACE PENCIL, INC. D/B/A KISSMETRICS and GIGA OMNI MEDIA, INC. DURIE TANGRI LLP Michael H. Page Attorneys for Defendants SITENING LLC, FLITE, INC., MODULAR PATTERNS, LTD., and ETSY, INC. LAW OFFICES OF STEVEN A. ELLENBERG Mark V. Boennighausen Attorneys for Defendants TANGIENT LLC and 8TRACKS, INC. FOLEY & LARDNER LLP Anne Bradley Attorneys for Defendant SPOKEO, INC. FENWICK & WEST LLP Sebastian Kaplan Attorneys for Defendants INVOLVER, INC. and SLIDESHARE, INC. MITCHELL SILBERBERG & KNUPP LLP Kevin E. Gaut Attorneys for Defendant KONGREGATE INC. PARISI & HAVENS LLP David C. Parisi Attorneys for Plaintiffs JOHN B. KIM and DAN C. SCHUTZMAN
GIBSON, DUNN & CRUTCHER LLP
S. ASHLIE BERINGER, SBN 263977
JOSHUA A. JESSEN, SBN 222831
DANIEL Y. LI, SBN 268894
Attorneys for Defendants
SPACE PENCIL, INC. D/B/A KISSMETRICS and
GIGA OMNI MEDIA, INC.
[Counsel For Additional Parties
Listed On Signature Page]
STIPULATION AND [PROPOSED]
ORDER TO TEMPORARILY VACATE
DEADLINES FOR DEFENDANTS TO
RESPOND TO FIRST AMENDED CLASS
ACTION COMPLAINT PENDING
OUTCOME OF MEDIATION
Date Action Filed: Aug. 1, 2011
Trial Date: Not Set
WHEREAS, on August 1, 2011, Plaintiffs John B. Kim and Dan C. Schutzman ("Plaintiffs") filed a class action complaint against the twenty-six defendants listed on the caption page ("Defendants") in the above-referenced matter (Docket No. 1);
WHEREAS, on September 7, 2011, Plaintiffs filed a First Amended Class Action Complaint (the "Complaint') against Defendants (Docket No. 31);
WHEREAS, on September 30, 2011, this Court entered a Related Case Order relating this case to Case No. 11-CV-03764 LB and transferring this case from Magistrate Judge Elizabeth D. Laporte to this Court (Docket No. 38);
WHEREAS, on October 21, 2011, the parties received notice from the Clerk that the Court has scheduled a Case Management Conference for January 26, 2012 at 10:30 a.m., and ordered the parties to file a Joint Case Management Statement by January 19, 2012 (Docket No. 50);
WHEREAS, several Defendants have not yet been served, and the Defendants that have been served have received various extensions of time to respond to the Complaint, including to October 27, 2011 (Docket Nos. 37, 41, 49), in order to coordinate response times;
WHEREAS, if the case moves forward, Plaintiffs may seek leave of Court, or may obtain the agreement of Defendants, to file a Second Amended Complaint;
WHEREAS, if the case moves forward, Defendants plan to move to dismiss the Complaint under at least Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and likely would also move to dismiss any further amended complaint on similar grounds;
WHEREAS, prior to the filing of a potential further amended complaint and motions to dismiss, and in the interests of judicial efficiency and the conservation of the parties' resources, Plaintiffs and certain (and potentially all) of the Defendants wish to explore a resolution of this matter through the services of a private mediator sometime before December 22, 2011; and
WHEREAS, the parties intend to notify the Court of the results of the mediation (and any follow-up discussions) by no later than January 19, 2012, the date the Joint Case Management Statement is due;
THEREFORE, IT IS HEREBY STIPULATED AND AGREED by the parties to this Stipulation, through their respective counsel, and subject to the approval of this Court, as follows:
1. Any existing deadlines for Defendants to respond to the Complaint, including the October 27, 2011 deadline, are hereby vacated.
2. The parties shall notify the Court in their Joint Case Management Statement of the results of any mediation.
3. If the parties have not reached a resolution of this matter by January 19, 2012, the parties shall inform the Court in their Joint Case Management Statement and set a briefing schedule for a Motion to Dismiss or address whether Plaintiffs may file an amended complaint.
The requested vacatur of the October 27, 2011 deadline of certain Defendants to respond to the Complaint will not alter the date of any event or any deadline already fixed by Court order. The parties previously stipulated to extend the time of various Defendants to respond to the Complaint (and the initial complaint) to various dates in October 2011. See Docket Nos. 12, 25-27, 29, 33, 37, 41, 49.
Respectfully submitted,
GIBSON, DUNN & CRUTCHER LLP
S. Ashlie Beringer
Attorneys for Defendants
SPACE PENCIL, INC. D/B/A KISSMETRICS
and GIGA OMNI MEDIA, INC.
DURIE TANGRI LLP
Michael H. Page
Attorneys for Defendants
SITENING LLC, FLITE, INC., MODULAR
PATTERNS, LTD., and ETSY, INC.
LAW OFFICES OF STEVEN A. ELLENBERG
Mark V. Boennighausen
Attorneys for Defendants
TANGIENT LLC and 8TRACKS, INC.
FOLEY & LARDNER LLP
Anne Bradley
Attorneys for Defendant
SPOKEO, INC.
FENWICK & WEST LLP
Sebastian Kaplan
Attorneys for Defendants
INVOLVER, INC. and SLIDESHARE, INC.
MITCHELL SILBERBERG & KNUPP LLP
Kevin E. Gaut
Attorneys for Defendant
KONGREGATE INC.
PARISI & HAVENS LLP
David C. Parisi
Attorneys for Plaintiffs
JOHN B. KIM and DAN C. SCHUTZMAN
ATTORNEY ATTESTATION
Pursuant to General Order 45, I, S. Ashlie Beringer, hereby attest that concurrence in the filing of this document has been obtained from the above-listed counsel.
S. Ashlie Beringer
PURSUANT TO STIPULATION, IT IS SO ORDERED.
Judge Laurel Beeler