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Portrait Displays, Inc. v. Speece

United States District Court, N.D. California, San Jose Division
Oct 27, 2005
Case No. C 04 1501 RMW PVT (N.D. Cal. Oct. 27, 2005)

Opinion

Case No. C 04 1501 RMW PVT.

October 27, 2005

CHRISTOPHER L. WANGER (CA Bar No. 164751), RYAN S. HILBERT (CA Bar No. 210549), MANATT, PHELPS PHILLIPS, LLP, Palo Alto, CA, Attorneys for Plaintiff and Counterdefendant, PORTRAIT DISPLAYS, INC. and Counterdefendants, J. MICHAEL JAMES and JAMES CASEY.

MICHAEL T. WELCH (CA Bar No. 122630), LAW OFFICES OF MICHAEL T. WELCH, San Francisco, CA, Attorneys for Defendants and Counterclaimants, BRYAN SPEECE, ASHLEY SALDANHA AND ENTECH TAIWAN.


STIPULATED ORDER OF DISMISSAL AND ORDER [ 28 U.S.C. § 1367]


Plaintiff and Counterdefendant, Portrait Displays, Inc. ("PDI"), and Counterdefendants J. Michael James ("James") and James Casey ("Casey") (collectively, "PDI") and Defendant and Counterclaimant, Bryan Speece, while not admitting any of the allegations of the Complaint or Counterclaims in this action hereby stipulate as follows:

WHEREAS, on July 8, 2005, Speece filed a Motion to Dismiss And/Or Remand For Lack of Subject Matter Jurisdiction (the "Motion") in which he sought dismissal and/or remand the action to California state court;

WHEREAS, on October 4, 2005, this Court issued an Order (the "Order") granting Mr. Speece's Motion without specifying whether the action was to be remanded or simply dismissed;

WHEREAS, PDI contends that the Court's Order was improvidently granted because (1) the Stipulated Order of Dismissal that was submitted by PDI and Mr. Speece's co-defendants, Ashley Saldanha and EnTech Taiwan, on August 18, 2005, and which forms a basis for the Court's October 4 Order has not yet been entered by this Court and, thus, this Court still has federal question jurisdiction over PDI's claim for copyright infringement against those two co-defendants; and (2) even if the Stipulated Order of Dismissal submitted on August 18, 2005 were entered, that Stipulated Order specifically provides that the Court shall retain, and not cede, jurisdiction over this action;

WHEREAS, PDI further contends that the Court's October 4 Order is vague because it does not specify whether the Court intends to remand the action to state court as PDI believes it should so that the action can be resolved on the merits;

WHEREAS, in light of the issues raised above, PDI is prepared immediately to file a Motion for Leave to File a Motion for Reconsideration And/Or Clarification of the Court's October 4 Order to address such issues; and

WHEREAS, Mr. Speece does not oppose dismissal of the action;

WHEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the parties hereto through their respective counsel that this action, and any claims remaining therein of either PDI or Speece, shall be dismissed without prejudice, that neither the foregoing Order or this dismissal shall be deemed an adjudication on the merits of such dismissed claims, and that such dismissed claims shall be subject to the tolling provisions of 28 U.S.C. Sec. 1367(d).

ORDER

Pursuant to Stipulation and good cause appearing, IT IS HEREBY ORDERED that this action shall be dismissed without prejudice, and subject to the tolling provisions of 28 U.S.C. Sec. 1367(d).


Summaries of

Portrait Displays, Inc. v. Speece

United States District Court, N.D. California, San Jose Division
Oct 27, 2005
Case No. C 04 1501 RMW PVT (N.D. Cal. Oct. 27, 2005)
Case details for

Portrait Displays, Inc. v. Speece

Case Details

Full title:PORTRAIT DISPLAYS, INC., a Delaware corporation, Plaintiff, v. BRYAN…

Court:United States District Court, N.D. California, San Jose Division

Date published: Oct 27, 2005

Citations

Case No. C 04 1501 RMW PVT (N.D. Cal. Oct. 27, 2005)