Free Motion for Leave to File - District Court of California - California

Case 3:08-cv-00619-LAB-RBB

Document 11

Filed 06/05/2008

Page 1 of 4

I
., J

4 3 6

RICHARD E. MCCARTHY [SBN 106050] [email protected] TANYA M. SCHTERLINC ISBN 206984] tschierl i [email protected] SOLOMON WARD SEIDENWURM & SMITH, 401 B Street, Suite 1200 San Diego, California 92101 Telephone: (61 9) 231-0303 Facsimile: (619) 231 4755 Attorneys for Petitioner HANSEN BEVERACE COMPANY

LLP

7

I
9

UNITED STATES DISTRICT COURT
SOUTHERN D!STRICT OF CATIFORNIA

10

t1 t2
13

HANSEN BEVERAGE COMPANY, Delaware corporation, Petitioner,

A

CASE NO. O8-CV-06.I9 LAB (RBB)

t4
15

HANSEN BEVERAGE COMPANY'S EX PARïE APPLICATION FOR LEAVE TO FILE A 3.PAGE SURREPTY IN OPPOS¡TION TO MOTION TO DISMISS OR STAY PETITION TO CONFIRM ARB¡TRATION AWARD
a

DSD DISTRIBUTORS, corporaüon
Respondent.

Wisconsin

t6 t7 t8
t9
20

Date: Time:

June 9, 2008 1 1: l5 a.m. (no oral argument; taken under submission pursuant to Minute Order dated June 4, 2008)

Hon. Larry A. Burns
t. SUMMARY OF REQUESTED RETIEF

2t .,)
23

ln its Reply, Respondent DSD Distributors, lnc. ("DSD")
misrepresentations

makes

two fundamental
Beverage (after

of the record which require correction. Petitioner Hansen

Company ("Hansen") makes this ex parte application for leave

to file a surreply

24

meeting and conferring with opposing counselr) in order to correct the record. Correcting the record supplies the good cause requirement for this ex parte application.

)a
26
,,7

1

See Declaration ofTanya M. Schierling in Support of

[x Parte Application for Leave to File a 3-page

Surreply ('Schierling Ex Parte Decl.),

f

2.

28
P100429233:07 565.132

EX PARTE APPLICATION FOR LEAVE

TO

FILE SURREPLY

IN OPPOSITION TO MOTION TO DISMISS OR STAY

Case 3:08-cv-00619-LAB-RBB

Document 11

Filed 06/05/2008

Page 2 of 4

1

Specifically, DSD argues that this Court should abstain from exercising jurisdiction

)
J

over Hansen's petition to confirm Judge Haden's April 4,2008 Final Award in arbitration
(the "Final Award") because:

4
5

(1) (2)

Hansen failed to remove DSD's Wisconsin state court action to federal court

(see Reply,'l :22-23; 3:3:2-3; 8: 1-2); and

6
7

Hansen agreed and the Arbitrator determined that Wisconsin state law is the
1

"law of the case" (see Reply,

:1 6-1

9; 1:26-27; 2:"13-14; 5:19-21; 5:22-23; 7:'l3-16; B:'l-2).

I
9

Both of these statements/ which DSD makes repeatedly throughout its Reply, are false and misleading. The undisputed facts are:

10

(1)

DSD intentionally named two Wisconsin companies as defendants

in

its

t1

Wisconsin state coud action, in addition to naming Hansen, undoubtedly for the precise
purpose of preventing Hansen from removing to federal court on grounds of diversity. 5eg

t2
13

a copy of

DSD's Verified Complaint

in the

Wisconsin state court act¡on ("DSD's

t4
15 16

Complaint"), Exhib¡t 2 to the Declaration of Tanya M. Schierling ln Supporl of Hansen
Beverage Company's Opposition to the Motion

to Dismiss or Stay, previously filed on May

23,

2OOB

("schierling Opposition Decl.") (defendant "Wisconsin Distributors is a Wisconsin

t7
18

limited liability corporation with its principal place of business [in] Wisconsin

' . ." and

defendant "River CiÇ is a Wisconsin corporation with its principal place of business [in]

t9
20

Wisconsin." DSD's Complaint, lftf B-9). By suggesting that Hansen waived its right to
invoke federal court jurisdiction for this action because

it "failed" to seek removal of the

2l

Wisconsin state court action, but then omitting the undisputed fact that no basis for removal existed in the Wisconsin state court action, DSD misrepresents the record and misleads this
Court.

))
t1
24 25 26

(2)

Hansen did not agree and the Arbitrator did nof determine that Wisconsin law

governed the arbitration and all claims raised and resolve in the arbitration. To the contrary,

the Final Award states: "The substantive law of Californìa and the Calìfornia Arhìt¡ation

',|
28

Act together wìth the Fede¡al Arbitration Acf and the IAMS comprehensive Rules shall apply ìn this proceedìng unless the parties otherwise agree in writing. The WFDL P:0O429233:07565.132 2
IN OPPOSITION TO MOTION TO DISMISS OR STAY

ffi

Case 3:08-cv-00619-LAB-RBB

Document 11

Filed 06/05/2008

Page 3 of 4

1

[Wisconsin Fair Dealership Law] has also been considered where applicahle." See, Exhibit
1 to Schierling Opposition Decl., a copy of DSD's motion for partial vacation, specifically,

2
J

Exhibit "1" to the Affidavit of Julie Lewis, a copy of the Final Award (page 143 of Exhibit

1

to

4 f, 6
7

Schierling Opposition Decl.). DSD again seriously misrepresents the record. The Arbitrator

ruled precisely in accordance with the parties' written contract: California law applies
unless and except where fundamental public policy of Wisconsin conflicts with California

law.

Because no fundamental public policy of Wisconsin is implicated

or impinged

by

I
9 10
11

application of California's Arbitration Act, California law-and not Wisconsin law-governs confirmation of the Final Award.
V.

CONCTUSION
The Court should decide DSD's motion on the complete and accu¡ate record in this

t2
13

matter. Hansen therefore requests leave to file a surreply to correct DSD's misstatements of
the record or, alternatively, requests that the Court accept and consider this application
Hansen's surreply. DATED: June 5, 2008
as

l4
15

t6 t7
18

SOLOMON WARD SEIDENWURM & SMITH, LLP

By' RICHARD E. MCCARTHY TANYA M. SCHIERLINC Attorneys for Petitioner Hansen Beverage Company

t9
20

2t

t)
23

24

'r<
26

)1
28
P:00429233:07565.13

2

3 IN OPPOSITION TO MOTION TO DISMISS OR STAY

Case 3:08-cv-00619-LAB-RBB

Document 11

Filed 06/05/2008

Page 4 of 4

I
)
J

CERTIFICATE OF SERVICE
I caused the HANSEN BEVERAGE COMPANY'S EX PARTE APPLICATION FOR LEAVE

TO

FILE

A 3-PAGE SURREPLY IN OPPOSITION TO MOTION TO DISMISS OR

4
5

STAY PET¡TION TO CONFIRM ARBITRATION AWARD to be served in the following

manner:

6
7 8 9 case.

Electronic Mail Notice List
The following are those who are currently on the list to receive e-mail notices for this

Electronic Mail Notice List
Leila Nourani, Esq. Michael B. McCollum, Esq. Foley & Lardner 555 South Flower Street. Suite 3500 Los Angeles, CA9OO71 Telephone: (2'13) 972-4500 Facsimile: (21 3) 486-0065 lnou ran [email protected] [email protected] Attorneys for Defendant DSD Distributors, lnc. Julie A. Lewis Nowlan & Mouat, LLP 1 00 South Main Street P.O. Box 8100 Janesville, Wl 53547-81 00 Telephone: (608) 755-8100 Facsimile: (608) 755-81 10 [email protected] Attorneys for DSD Disiributors, lnc.

l0
1l t2
13

l4 l5
16

t7
18

t9
20

lsl Tanva M. Schierlin TANYA M. SCHIERLINC

2t
'r',
23 24

t{
26

1n 28

P:oo429233:O7565.132

A

IN OPPOSITION TO MOTION TO DISMISS OR STAY