MOTION to Change Time of initial CMC filed by Think Computer Corporation. (Attachments: # (1) Declaration, # (2) Proposed Order)(Aschenbrener, Michael) (Filed on 12/8/2014) Modified text on 12/9/2014 (dhmS, COURT STAFF).
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Page 1 Case5:11-cv-05496-HRL Document53 Filed12/08/14 Page1 of 5
MICHAEL J. ASCHENBRENER (SBN 277114)
mja@aschenbrenerlaw.com
2 ASCHENBRENER LAW, P.C.
795 Folsom Street, First Floor
3 San Francisco, CA 94107
Telephone: (415) 813-6245
4 Fax: (415) 813-6246
5
6 ATTORNEY FOR PLAINTIFF
7
UNITED STATES DISTRICT COURT
8
NORTHERN DISTRICT OF CALIFORNIA
9
SAN JOSE DIVISION
10
THINK COMPUTER CORPORATION, a
11 Delaware Corporation,
12
13
14
15
16
Plaintiff,
v.
ROBERT VENCHIARUTTI, et al.,
Defendants.
17
18
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 11-cv-05496-HRL
MOTION TO CHANGE TIME OF
INITIAL CASE MANAGEMENT
CONFERENCE
Before the Honorable Howard R. Lloyd
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MOTION TO CHANGE TIME OF
INITIAL CMC
11-cv-05496-HRLPage 2 Case5:11-cv-05496-HRL Document53 Filed12/08/14 Page2 of 5
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Pursuant to Civil Local Rule 6-3, Plaintiff Think Computer Corporation (“Plaintiff” or
2
“Think”) brings this Motion to Change Time of the initial Case Management Conference
3
(“CMC”) to any date on or after January 5, 2015.
FACTUAL BACKGROUND
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1.
On November 14, 2011, Plaintiff filed its Complaint (Dkt. No. 1) and the Court
scheduled the initial CMC for January 10, 2012 (Dkt. No. 4).
2.
On January 3, 2012, Defendants filed an unopposed motion for administrative
8
relief to continue the initial CMC. (Dkt. No. 13.) On January 5, 2012, the Court granted the
9
motion and reset the initial CMC for January 31, 2012. (Dkt. No. 14.)
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11
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3.
On January 13, 2012, the Court sua sponte continued the initial CMC to February
28, 2012. (Dkt. No. 18.)
4.
On January 23, 2012, the Court sua sponte continued the initial CMC to April 17,
2012. (Dkt. No. 22.)
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5.
On January 31, 2012, Plaintiff filed the First Amended Complaint. (Dkt. No. 23.)
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6.
On February 14, 2012, Defendants filed their motion to dismiss. (Dkt. No. 24.)
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7.
On February 28, 2012, Plaintiff filed a Response and Opposition to the Motion.
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(Dkt. No. 25.)
8.
On March 3, 2012, Plaintiff filed a Response and Opposition to the Motion. (Dkt.
No. 30.)
9.
On March 6, 2012, Defendants filed a Reply Memorandum of Points and
Authorities in Support of the Motion. (Dkt. No. 31.)
10.
On March 12, 2012, the Court sua sponte continued the initial CMC to May 29,
2012. (Dkt. No. 32.)
11.
On March 13, 2012, Plaintiff filed a motion for an order shortening time of the
initial CMC. (Dkt. No. 33.)
12.
On March 14, 2012, Defendants filed a response to Plaintiff’s motion for an order
shortening time. (Dkt. No. 34.)
MOTION TO CHANGE TIME OF
INITIAL CMC
1
11-cv-05496-HRLPage 3 Case5:11-cv-05496-HRL Document53 Filed12/08/14 Page3 of 5
13.
1
2
On March 16, 2012, the Court denied Plaintiff’s motion for an order shortening
time. (Dkt. No. 35.)
14.
3
On April 17, 2012, the Court held a motion hearing regarding Defendants’ motion
4
to dismiss the First Amended Complaint and the Court took the matter under submission. (Dkt.
5
No. 40.)
15.
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On May 8, 2012, the Parties filed a stipulation to continue the initial CMC to an
7
unspecified and indefinite date after the Court decides the motion to dismiss the First Amended
8
Complaint. (Dkt. No. 41.)
16.
9
On May 10, 2012, the Court entered the Parties’ stipulation to continue the initial
10
CMC until after the Court decides the motion to dismiss the First Amended Complaint. (Dkt. No.
11
42.)
12
17.
On March 24, 2014, Plaintiff filed a Notice under Civil L.R. 7-13 that
13
Defendants’ motion to dismiss the First Amended Complaint has been under submission for
14
more than 120 days.
15
18.
As of December 8, 2014, the Court has not yet issued a ruling on Defendants’
16
motion to dismiss the First Amended Complaint, the matter has been under submission for 965
17
days, and the Court has not yet held an initial CMC. (Dkt. Nos. 40, 42.)
DISCUSSION
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Plaintiff hereby moves for an order scheduling the initial CMC. The case was filed in
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November 2011—over three years ago—and the Court has not yet held an initial CMC. (Dkt.
21
Nos. 1, 42.)
22
Reasons for Plaintiff’s Request for an Order Shortening Time
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Plaintiff requests that the Court set an initial CMC so that the Parties and the Court may
24
discuss: when the Court will rule upon the pending motion to dismiss; scheduling; trial setting;
25
and, all other issues related to this case. (Aschenbrener Declaration (“Asch Decl.”) ¶ 2.)
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Under Civil L.R. 16-2(a), the Court is obligated to set the initial CMC on the “first date
available on the assigned Judge’s calendar that is not less than 90 days after the action was
MOTION TO CHANGE TIME OF
INITIAL CMC
2
11-cv-05496-HRLPage 4 Case5:11-cv-05496-HRL Document53 Filed12/08/14 Page4 of 5
1
filed.” Civil L.R. 16-2(a). While the Court did originally satisfy Civil L.R. 16-2(a), the Court
2
continued the initial CMC multiple times, and has not yet held the initial CMC. (Dkt. Nos. 18,
3
22, 32, 42.)
4
As a result of the Court continuing the initial CMC until after it issues a decision on the
5
motion to dismiss the First Amended Complaint (Dkt. No. 42) and the Court not issuing a ruling
6
on the motion to dismiss—despite the passage of over three years since the filing of the original
7
complaint and 965 days since the Court took the motion to dismiss under submission—Plaintiff
8
has been unable to conduct any discovery in this case or advance the case in any way at all.
9
With the case now over three years old, Plaintiff strongly desires the opportunity to
10
litigate the case. (Asch Decl. ¶ 3.) That is not possible until the Court holds a CMC and/or issues
11
an order on the pending motion to dismiss the First Amended Complaint. For these reasons,
12
Plaintiff moves for an order shortening time of the initial CMC.
13
Plaintiff’s Efforts to Obtain a Stipulation
14
On November 18, 2014, counsel for Plaintiff emailed Ryan Marcroft, counsel for
15
Defendants to request a stipulation for the filing of a request for a CMC. (Asch Decl. ¶ 4.) On
16
November 18, 2014, Mr. Marcroft responded via email with a request for a phone call with
17
Plaintiff’s counsel. (Asch Decl. ¶ 5.) On November 18, 2014, counsel for the parties discussed,
18
via phone, Plaintiff’s request for a stipulation. (Asch Decl. ¶ 6.) On November 21, 2014, Mr.
19
Marcroft declined, via email, to stipulate to a request for a CMC. (Asch Decl. ¶ 7.)
20
Substantial Harm or Prejudice to Plaintiff if Court Denies this Motion
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Plaintiff will not be able to litigate or advance this case in any way if the Court denies the
22
instant motion to shorten the time for the initial CMC. (Asch Decl. ¶ 8.) Justice has been delayed
23
for over three years in the case causing substantial harm to Plaintiff; Plaintiff merely requests
24
that justice not be delayed any further. (Asch Decl. ¶ 9.)
25
The Effect of Plaintiff’s Requested Time Modification on the Schedule for the Case
26
If the Court grants Plaintiff’s motion to shorten time and holds a CMC, then Plaintiff will
27
28
be able to start litigating the case in earnest by beginning discovery. Fed R. Civ. P. 26(d)(1);
MOTION TO CHANGE TIME OF
INITIAL CMC
3
11-cv-05496-HRLPage 5 Case5:11-cv-05496-HRL Document53 Filed12/08/14 Page5 of 5
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(Asch Decl. ¶ 10). Without an order granting the instant motion, this case will remain in limbo
2
with no ability of Plaintiff to prosecute its case until the Court decides Defendants’ pending-for-
3
965-days motion to dismiss the First Amended Complaint. (Asch Decl. ¶ 11.)
CONCLUSION
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Plaintiff respectfully requests that the Court grant the instant motion for an order
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shortening time for the initial CMC and set a time for the initial CMC of January 6, 2015, 1:30
7
p.m.
8
9
10
Date: December 8, 2014
Respectfully submitted,
ASCHENBRENER LAW, P.C.
11
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By: s/ Michael Aschenbrener
Michael Aschenbrener
Counsel for Plaintiff Think Computer Corporation
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MOTION TO CHANGE TIME OF
INITIAL CMC
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11-cv-05496-HRL
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case5:11-cv-05496-HRL Document53 Filed12/08/14 Page1 of 5
MICHAEL J. ASCHENBRENER (SBN 277114)
1 mja@aschenbrenerlaw.com
2 ASCHENBRENER LAW, P.C.
795 Folsom Street, First Floor
3 San Francisco, CA 94107
Telephone: (415) 813-6245
4 Fax: (415) 813-6246
5
6 ATTORNEY FOR PLAINTIFF
7
UNITED STATES DISTRICT COURT
8
NORTHERN DISTRICT OF CALIFORNIA
9
SAN JOSE DIVISION
10
THINK COMPUTER CORPORATION, a
11 Delaware Corporation,
12
13
14
15
16
Plaintiff,
v.
ROBERT VENCHIARUTTI, et al.,
Defendants.
17
18
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 11-cv-05496-HRL
MOTION TO CHANGE TIME OF
INITIAL CASE MANAGEMENT
CONFERENCE
Before the Honorable Howard R. Lloyd
19
20
21
22
23
24
25
26
27
28
MOTION TO CHANGE TIME OF
INITIAL CMC
11-cv-05496-HRL
PDF Page 3
Case5:11-cv-05496-HRL Document53 Filed12/08/14 Page2 of 5
1
Pursuant to Civil Local Rule 6-3, Plaintiff Think Computer Corporation (“Plaintiff” or
2
“Think”) brings this Motion to Change Time of the initial Case Management Conference
3
(“CMC”) to any date on or after January 5, 2015.
FACTUAL BACKGROUND
4
5
6
7
1.
On November 14, 2011, Plaintiff filed its Complaint (Dkt. No. 1) and the Court
scheduled the initial CMC for January 10, 2012 (Dkt. No. 4).
2.
On January 3, 2012, Defendants filed an unopposed motion for administrative
8
relief to continue the initial CMC. (Dkt. No. 13.) On January 5, 2012, the Court granted the
9
motion and reset the initial CMC for January 31, 2012. (Dkt. No. 14.)
10
11
12
13
3.
On January 13, 2012, the Court sua sponte continued the initial CMC to February
28, 2012. (Dkt. No. 18.)
4.
On January 23, 2012, the Court sua sponte continued the initial CMC to April 17,
2012. (Dkt. No. 22.)
14
5.
On January 31, 2012, Plaintiff filed the First Amended Complaint. (Dkt. No. 23.)
15
6.
On February 14, 2012, Defendants filed their motion to dismiss. (Dkt. No. 24.)
16
7.
On February 28, 2012, Plaintiff filed a Response and Opposition to the Motion.
17
18
19
20
21
22
23
24
25
26
27
28
(Dkt. No. 25.)
8.
On March 3, 2012, Plaintiff filed a Response and Opposition to the Motion. (Dkt.
No. 30.)
9.
On March 6, 2012, Defendants filed a Reply Memorandum of Points and
Authorities in Support of the Motion. (Dkt. No. 31.)
10.
On March 12, 2012, the Court sua sponte continued the initial CMC to May 29,
2012. (Dkt. No. 32.)
11.
On March 13, 2012, Plaintiff filed a motion for an order shortening time of the
initial CMC. (Dkt. No. 33.)
12.
On March 14, 2012, Defendants filed a response to Plaintiff’s motion for an order
shortening time. (Dkt. No. 34.)
MOTION TO CHANGE TIME OF
INITIAL CMC
1
11-cv-05496-HRL
PDF Page 4
Case5:11-cv-05496-HRL Document53 Filed12/08/14 Page3 of 5
13.
1
2
On March 16, 2012, the Court denied Plaintiff’s motion for an order shortening
time. (Dkt. No. 35.)
14.
3
On April 17, 2012, the Court held a motion hearing regarding Defendants’ motion
4
to dismiss the First Amended Complaint and the Court took the matter under submission. (Dkt.
5
No. 40.)
15.
6
On May 8, 2012, the Parties filed a stipulation to continue the initial CMC to an
7
unspecified and indefinite date after the Court decides the motion to dismiss the First Amended
8
Complaint. (Dkt. No. 41.)
16.
9
On May 10, 2012, the Court entered the Parties’ stipulation to continue the initial
10
CMC until after the Court decides the motion to dismiss the First Amended Complaint. (Dkt. No.
11
42.)
12
17.
On March 24, 2014, Plaintiff filed a Notice under Civil L.R. 7-13 that
13
Defendants’ motion to dismiss the First Amended Complaint has been under submission for
14
more than 120 days.
15
18.
As of December 8, 2014, the Court has not yet issued a ruling on Defendants’
16
motion to dismiss the First Amended Complaint, the matter has been under submission for 965
17
days, and the Court has not yet held an initial CMC. (Dkt. Nos. 40, 42.)
DISCUSSION
18
19
Plaintiff hereby moves for an order scheduling the initial CMC. The case was filed in
20
November 2011—over three years ago—and the Court has not yet held an initial CMC. (Dkt.
21
Nos. 1, 42.)
22
Reasons for Plaintiff’s Request for an Order Shortening Time
23
Plaintiff requests that the Court set an initial CMC so that the Parties and the Court may
24
discuss: when the Court will rule upon the pending motion to dismiss; scheduling; trial setting;
25
and, all other issues related to this case. (Aschenbrener Declaration (“Asch Decl.”) ¶ 2.)
26
27
28
Under Civil L.R. 16-2(a), the Court is obligated to set the initial CMC on the “first date
available on the assigned Judge’s calendar that is not less than 90 days after the action was
MOTION TO CHANGE TIME OF
INITIAL CMC
2
11-cv-05496-HRL
PDF Page 5
Case5:11-cv-05496-HRL Document53 Filed12/08/14 Page4 of 5
1
filed.” Civil L.R. 16-2(a). While the Court did originally satisfy Civil L.R. 16-2(a), the Court
2
continued the initial CMC multiple times, and has not yet held the initial CMC. (Dkt. Nos. 18,
3
22, 32, 42.)
4
As a result of the Court continuing the initial CMC until after it issues a decision on the
5
motion to dismiss the First Amended Complaint (Dkt. No. 42) and the Court not issuing a ruling
6
on the motion to dismiss—despite the passage of over three years since the filing of the original
7
complaint and 965 days since the Court took the motion to dismiss under submission—Plaintiff
8
has been unable to conduct any discovery in this case or advance the case in any way at all.
9
With the case now over three years old, Plaintiff strongly desires the opportunity to
10
litigate the case. (Asch Decl. ¶ 3.) That is not possible until the Court holds a CMC and/or issues
11
an order on the pending motion to dismiss the First Amended Complaint. For these reasons,
12
Plaintiff moves for an order shortening time of the initial CMC.
13
Plaintiff’s Efforts to Obtain a Stipulation
14
On November 18, 2014, counsel for Plaintiff emailed Ryan Marcroft, counsel for
15
Defendants to request a stipulation for the filing of a request for a CMC. (Asch Decl. ¶ 4.) On
16
November 18, 2014, Mr. Marcroft responded via email with a request for a phone call with
17
Plaintiff’s counsel. (Asch Decl. ¶ 5.) On November 18, 2014, counsel for the parties discussed,
18
via phone, Plaintiff’s request for a stipulation. (Asch Decl. ¶ 6.) On November 21, 2014, Mr.
19
Marcroft declined, via email, to stipulate to a request for a CMC. (Asch Decl. ¶ 7.)
20
Substantial Harm or Prejudice to Plaintiff if Court Denies this Motion
21
Plaintiff will not be able to litigate or advance this case in any way if the Court denies the
22
instant motion to shorten the time for the initial CMC. (Asch Decl. ¶ 8.) Justice has been delayed
23
for over three years in the case causing substantial harm to Plaintiff; Plaintiff merely requests
24
that justice not be delayed any further. (Asch Decl. ¶ 9.)
25
The Effect of Plaintiff’s Requested Time Modification on the Schedule for the Case
26
If the Court grants Plaintiff’s motion to shorten time and holds a CMC, then Plaintiff will
27
28
be able to start litigating the case in earnest by beginning discovery. Fed R. Civ. P. 26(d)(1);
MOTION TO CHANGE TIME OF
INITIAL CMC
3
11-cv-05496-HRL
PDF Page 6
Case5:11-cv-05496-HRL Document53 Filed12/08/14 Page5 of 5
1
(Asch Decl. ¶ 10). Without an order granting the instant motion, this case will remain in limbo
2
with no ability of Plaintiff to prosecute its case until the Court decides Defendants’ pending-for-
3
965-days motion to dismiss the First Amended Complaint. (Asch Decl. ¶ 11.)
CONCLUSION
4
5
Plaintiff respectfully requests that the Court grant the instant motion for an order
6
shortening time for the initial CMC and set a time for the initial CMC of January 6, 2015, 1:30
7
p.m.
8
9
10
Date: December 8, 2014
Respectfully submitted,
ASCHENBRENER LAW, P.C.
11
12
By: s/ Michael Aschenbrener
Michael Aschenbrener
Counsel for Plaintiff Think Computer Corporation
13
14
15
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MOTION TO CHANGE TIME OF
INITIAL CMC
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11-cv-05496-HRL
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