Free Memorandum in Opposition - District Court of California - California

Case 3:07-cv-04755-JSW

Document 78

Filed 05/06/2008

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BIRNBERG & ASSOCIATES
703 MARKET STREET SUITE 600 SAN FRANCISCO CA, 94103 TEL (415) 398-1040 FAX (415) 398-2001

BIRNBERG & ASSOCIATES CORY A. BIRNBERG (SBN 105468) JOSEPH SALAMA, ESQ. (SBN 212225) BIRNBERG & ASSOCIATES 703 Market Street, Suite 600 San Francisco, CA 94103 Telephone: (415) 398-1040 Facsimile: (415) 398-2001 Attorneys for Plaintiffs JOHN GIDDING, PIVOTAL, INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION JOHN GIDDING, PIVOTAL, INC. ) ) Plaintiffs, ) v. ) ) DEREK ANDERSON, an individual; JOHN ) ZAPPETTINI, an individual; OLIVIER ) LEMAL, and individual; PLANTAGENET ) CAPITAL MANAGEMENT LLC, a ) purported California corporation; ) PLANTAGENET CAPITAL AMERICA ) LLC, a purported Delaware corporation; ) PLANTAGENET CAPITAL FUND LP, a ) purported Cayman Island corporation; ) PLANTAGENET CAPITAL FUND LP II, a purported Cayman Island corporation; PLB HOLDINGS SA, a purported Luxembourg corporation; PLANTAGENET PARTNERS SA, a purported French corporation; SA SOCIETE CHAMPENOISE D'EXPLOITATION VINICOLE, a purported French corporation; SERGE HAUCHART, an individual; PATRICK RAULET, an individual; JEAN-FRANCOIS RAPENEAU, an individual; CHRISTOPHE RAPENEAU, an individual; SA COMPAGNIE DES VINS DU LEVANT, a purported French corporation; SAS LES CHAMPS RENIER, a purported French corporation; Marie-Claude Simon an individual; and DOES 1 through 100, inclusive, Defendants. ______________________________________ Case No. C-7-04755-JW PLAINTIFFS' OPPOSITION TO DEFENDANT MARIE-CLAUDE SIMON'S EX PARTE MOTION FOR ORDER ENLARGENING TIME TO FILE OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT, OR, ALTERNATIVELY, CONTINUING THE HEARING OF PLAINTIFFS' MOTION

Complaint Filed: 9/14/07

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PLAINTIFFS' OPPOSITION TO DEFENDANT MARIE-CLAUDE SIMON'S EX PARTE MOTION FOR ORDER ENLARGENING TIME TO FILE OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT, OR, ALTERNATIVELY, CONTINUING THE HEARING OF PLAINTIFFS' MOTION

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Case No. C-7-04755-JW

Case 3:07-cv-04755-JSW

Document 78

Filed 05/06/2008

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1 2 3 4 5 6 MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT, OR, 7 8 9 10 11 12 13 with Cory Birnberg, counsel for Plaintiffs, on April 28, 2008. See Declaration of Fred 14 15 16 17 18 19 20 21 Mr. Birnberg explained this to Ms. Cohen, and cited this as the reason that he would not 22 23 24 25
BIRNBERG & ASSOCIATES
703 MARKET STREET SUITE 600 SAN FRANCISCO CA, 94103 TEL (415) 398-1040 FAX (415) 398-2001

COMES NOW PLAINTIFFS JOHN GIDDING and PIVOTAL, INC. ("Plaintiffs") hereby oppose DEFENDANT MARIE-CLAUDE SIMON's ("Defendant") EX PARTE MOTION FOR ORDER ENLARGENING TIME TO FILE OPPOSITION TO PLAINTIFFS'

ALTERNATIVELY, CONTINUING THE HEARING OF PLAINTIFFS' MOTION.

1. PLAINTIFFS' COUNSEL HAS NOT REFUSED TO STIPULATE TO THE EXTENSION.

Defendant's counsel, Ms. Gail Cohen, mischaracterizes the conversation that it had

Perkins, at ¶12. Defendants state that Mr. Birnberg "refused to stipulate to the extension." In fact, Mr. Birnberg actually told Ms. Cohen that he we would like to accommodate the extension and under normal circumstances would do so, but that in this case there were several other motions on the May 30, 2008 calendar that need to be taken into account. Plaintiffs' motion for leave to file a second amended complaint needs to be heard on the same date as the various motions to dismiss, all of which are now set for May 30, 2008.

stipulate to an extension of Defendant's deadline to file an opposition, nor to moving the hearing date on Plaintiffs' motion.

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PLAINTIFFS' OPPOSITION TO DEFENDANT MARIE-CLAUDE SIMON'S EX PARTE MOTION FOR ORDER ENLARGENING TIME TO FILE OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT, OR, ALTERNATIVELY, CONTINUING THE HEARING OF PLAINTIFFS' MOTION

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Case No. C-7-04755-JW

Case 3:07-cv-04755-JSW

Document 78

Filed 05/06/2008

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In the interest of hearing all motions on the same day, Mr. Birnberg suggested that Ms. Cohen seek to move the hearing date on all of the May 30, 2008 motions, rather than just the motion for leave to file a second amended complaint. Ms. Cohen declined. Plaintiffs have no opposition to Defendant's ex parte motion, other than the effect that the ex parte motion has on this Court hearing Plaintiffs' motion to amend at the same time as the motions to dismiss. 2. PLAINTIFFS DO NOT OPPOSE AN EXTENSION OF THE HEARING DATE OF ALL MATTERS BEFORE THE COURT ON MAY 30, 2008.

It is necessary that all motions set to be heard before this Court on May 30, 2008 (the various motions to dismiss and Plaintiffs' motion for leave to file second amended complaint) be heard on the same day. It seems that if the motions to dismiss Plaintiffs' first amended complaint are granted, then the Court will likely grant leave to amend. In the interest of judicial economy, it seems appropriate to hear everything at one time. Plaintiffs in fact want to amend the first amended complaint, and have submitted a motion on this matter. Plaintiffs request that this court deny Defendant's ex parte motion to continue the hearing of the Motion to Amend by two weeks, unless the Court continues its

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BIRNBERG & ASSOCIATES
703 MARKET STREET SUITE 600 SAN FRANCISCO CA, 94103 TEL (415) 398-1040 FAX (415) 398-2001

hearing of all the motions to dismiss to the same day. Plaintiffs have no opposition to this court granting Defendant extra time to file an opposition to Plaintiffs' motion to amend. BIRNBERG & ASSOCIATES Dated: 6 May 2008 By: _/s/ Cory A. Birnberg___ Cory A. Birnberg Attorneys for Plaintiffs

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PLAINTIFFS' OPPOSITION TO DEFENDANT MARIE-CLAUDE SIMON'S EX PARTE MOTION FOR ORDER ENLARGENING TIME TO FILE OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT, OR, ALTERNATIVELY, CONTINUING THE HEARING OF PLAINTIFFS' MOTION

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Case No. C-7-04755-JW