Opinion
CASE NO.: CV 10-1192
11-08-2011
ELLIOT ZEISEL, on behalf of himself and all others similarly situated, Plaintiff, v. DIAMOND FOODS, INC., a Delaware corporation, Defendant.
STEMBER FEINSTEIN DOYLE & PAYNE LLC By: Joseph N. Kravec, Jr. (Admitted Pro Hac Vice) Ellen M. Doyle Wyatt A. Lison Maureen Davidson-Welling Janet Lindner Spielberg LAW OFFICES OF JANET LINDNER SPIELBERG Michael D. Braun (SBN 167416) BRAUN LAW GROUP, P.C. Attorneys for Plaintiff and the Class Respectfully submitted, WINSTON & STRAWN LLP By: Amanda L. Groves Jeffrey J. Lederman Jeffrey S. Bosley Amanda L. Groves Attorneys for Defendant Diamond Foods, Inc.
Janet Lindner Spielberg (SBN 221926)
LAW OFFICES OF JANET LINDNER
SPIELBERG
Michael D. Braun (SBN 167416)
BRAUN LAW GROUP, P.C.
ATTORNEYS FOR PLAINTIFF
Joseph N. Kravec, Jr. (pro hac vice)
Ellen M. Doyle (pro hac vice)
Wyatt Lison (pro hac vice)
Maureen Davidson-Welling (pro hac vice)
STEMBER FEINSTEIN DOYLE
& PAYNE LLC
CLASS ACTION
STIPULATION PURSUANT TO FED. R. CIV. PROC. 15(a)(2) FOR FILING OF
SECOND AMENDED COMPLAINT AND [PROPOSED] ORDER
Plaintiff Elliot Zeisel ("Plaintiff") and Defendant Diamond Foods, Inc. ("Diamond") (collectively, the "Parties"), by and through their respective counsel, hereby stipulate and agree as follows:
WHEREAS, on March 22, 2010 Plaintiff filed his Complaint in this action [Docket No. 1];
WHEREAS, on June 18, 2010 Plaintiff filed his First Amended Complaint in this action [Docket No. 15];
WHEREAS, on October 19, 2010 the Court entered its Order Scheduling Trial and Pretrial Matters [Docket No. 41], which adopted by reference the Parties' January 15, 2010 proposed deadline to amend the pleadings;
WHEREAS, Plaintiff and Diamond participated in two mediation sessions, the second held on October 13, 2011;
WHEREAS, as a result of their mediation efforts the Parties reached a settlement in principle subject to final settlement documentation and approval of the Court of a final settlement agreement;
WHEREAS, Plaintiff now seeks to amend his operative complaint to conform to the scope of the class and claims subject to the Parties' settlement agreement in principle;
WHEREAS, pursuant to Federal Rule of Civil Procedure 15(a)(2), Diamond consents to Plaintiff filing his Second Amended Complaint without the need for a motion seeking leave of Court;
WHEREAS, a true and correct copy of Plaintiff's proposed Second Amended Complaint is attached hereto as Exhibit A;
THEREFORE, (1) without admitting the allegations therein, and expressly denying liability, Diamond consents pursuant to Federal Rule of Civil Procedure 15(a)(2) to Plaintiff filing his Second Amended Complaint, a copy of which is attached hereto as Exhibit A; (2) Plaintiff shall file the Second Amended Complaint separately today; (3) the Second Amended Complaint shall be deemed served as of the time it is filed; (4) Diamond shall respond to the Second Amended Complaint within the time established by the Federal Rules of Civil Procedure.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
STEMBER FEINSTEIN DOYLE
& PAYNE LLC
By: Joseph N. Kravec, Jr.
(Admitted Pro Hac Vice)
Ellen M. Doyle
Wyatt A. Lison
Maureen Davidson-Welling
Janet Lindner Spielberg
LAW OFFICES OF JANET LINDNER
SPIELBERG
Michael D. Braun (SBN 167416)
BRAUN LAW GROUP, P.C.
Attorneys for Plaintiff and the Class
Respectfully submitted,
WINSTON & STRAWN LLP
By: Amanda L. Groves
Jeffrey J. Lederman
Jeffrey S. Bosley
Amanda L. Groves
Attorneys for Defendant Diamond Foods, Inc.
I, Joseph N. Kravec, Jr., hereby attest, pursuant to N.D. Cal. General Order No. 45, that the concurrence to the filing of this document has been obtained from each signatory hereto.
Joseph N. Kravec, Jr.
PURSUANT TO STIPULATION, IT IS SO ORDERED.
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE