Integral Development Corp vs Viral Tolat

No. 14-15597

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INTEGRAL DEVELOPMENT CORPORATION,

Plaintiff - Appellant,

v.

VIRAL TOLAT,

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of California

Jeffery S. White, District Judge, Case No. 3:12-cv-06575-JSW

MOTION TO EXTEND TIME TO PREPARE RECORD

AND TO FILE OPENING BRIEF

JACK RUSSO (State Bar No. 96068) COMPUTERLAW GROUP LLP 401 Florence Street Palo Alto, CA 94301 Telephone: (650) 327-9800 Facsimile: (650) 618-1863 Attorneys for Plaintiff and Appellant INTEGRAL DEVELOPMENT CORPORATION

Case: 14-15597 07/16/2014 ID: 9172194 DktEntry: 16 Page: 1 of 25

MOTION TO EXTEND TIME TO PREPARE RECORD AND TO FILE OPENING BRIEF

Appellant respectfully requests the Court extend the time for it to file its

opening brief and excerpts of record to thirty (30) days from the entry of final

judgment by the district court below or from the denial of this motion to stay,

whichever is later, and to recalculate all deadlines accordingly.

The modified deadline for Appellants Opening Brief and Designation of the

Record is July 21, 2014 following the stipulated Motion by appellant and

respondent. Declaration of Jack Russo in Support of Motion to Extend Time

(Russo Decl.), 2-3, Exs. 1 & 2 (Stipulated motion and order granting stipulated

motion, No. 14-15597 (9th Cir. Jun. 5 & 6, 2014) (Dkt. #14,15)). This is an appeal

from an order denying a preliminary injunction on an expedited schedule under

Circuit Rule 3-3.

This extension is necessary for at least three reasons.

First, on June 17, 2014, the Northern District of California issued an order

setting a settlement conference before Magistrate Judge Jacqueline Scott Corley on

June 18, 2014. Russo Decl., Ex. 3, Order, Integral Development Corporation v.

Tolat, No. 4:12-cv-06575-JSW (N.D. Cal. Apr. 9, 2014)(Dkt. #299). The parties

have continued the settlement discussions Judge White ordered to resolve this

appeal and the underlying district court case, and signed the agreement today.

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Russo Decl., 4. Accordingly, the extension is necessary to allow parties to

complete the terms of the settlement agreement.

Second, the settlement includes the form of the stipulated final judgment to

be submitted to the district court for entering. Russo Decl., Exh. 4. If the district

court approves and enters that final judgment, a consolidated appeal upon its entry

will promote judicial economy and other efficiencies in both this Court and the

district court.

Third, the parties have submitted a joint motion to stay this appeal because

of the settlement reached and procedural considerations below. However, this

separate motion to modify the briefing schedule deadlines currently set for July 21

is necessary under Circuit Rule 27-11, in the event that the entry of final judgment

is delayed below, or this Court does not rule on the pending motion to stay by the

current July 21, 2014 deadline or denies the stay.

The requested manner of calculating the extension may result in an

extension of more than thirty days from the reset July 21, 2014 deadline.

However, Appellant submits that resetting the deadline from the later date of 30

days after any denial of this motion to stay or the entry of final judgment by the

district court or any denial of motion to stay prevents this Court from having to

entertain multiple written requests to reset the schedule, if this Court does not rule

on the pending motion to stay by July 21, 2014.

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Counsel has exercised diligence, having submitted the mediation

questionnaire and having ordered all transcripts on an expedited basis from the

Court reporter. Russo Decl., 5. Trial counsel contacted and obtained the assistance

of appellate counsel immediately upon issuance of the underlying order of the

Northern District of California. Russo Decl., 6. Further, the opening brief will be

filed by July 21, 2014 absent any order granting this motion or the motion filed

concurrently herewith. Russo Decl., 7.

Appellees counsel has stipulated to the pending motion to stay, and

appellant does not oppose this motion given the foregoing. Russo Decl., 8.

Accordingly, appellant respectfully moves the Court to extend the reset

deadline for the opening brief and record preparation to thirty days from any denial

of the motion for stay or thirty days from the date of entry of judgment below,

whichever is later, and to recalculate all deadlines accordingly to allow the parties

to the terms of the signed settlement and any other actions ordered by the court and

settled between them during settlement discussion.

Dated: July 16, 2014 Respectfully submitted, COMPUTERLAW GROUP LLP By: /s/ Jack Russo Jack Russo Counsel for Plaintiff-Appellant INTEGRAL DEVELOPMENT CORPORATION

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DECLARATION OF JACK RUSSO I, Jack Russo, declare under penalty of perjury as follows:

1. I am an attorney admitted to practice before this Court, and I am

managing partner at the law firm of Computerlaw Group LLP, counsel for

Plaintiff-Appellant Integral Development Corporation in this matter. I have

personal knowledge of the facts set forth in this declaration, and if called to do so I

could and would testify competently to the same.

2. Appellants Opening Brief and Record Designations are due July 21,

2014. This is the first day on which the Opening Brief and Record are due.

3. By this motion, Appellant is requesting an extension of thirty (30)

days to August 20, 2014.

4. This extension is necessary for at least three reasons. First, the parties

have signed a settlement agreement to resolve part of this appeal and the

underlying District Court case, D.C. No. 3:12-cv-06575-JSW from the Northern

District of California. On June 17, 2014, the Northern District of California issued

an order setting a settlement conference before Magistrate Judge Jacqueline Scott

Corley on June 18, 2014. A true and correct copy of the notice I received on June

17, 2014 from the electronic filing system for the Northern District of California is

attached as Exhibit 3. Second, Appellant and Appellee have filed a Stipulated

Motion to Stay this Appeal which awaits disposition. Docket #14 (Jun. 5, 2014).

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This separate motion to modify the briefing schedule deadlines currently set for

July 21 is necessary under Circuit Rule 27-11. Third, this separate motion to

modify the briefing schedule deadlines currently set for July 21 is necessary under

Circuit Rule 27-11, in the event that the entry of final judgment is delayed below,

or this Court does not rule on the pending motion to stay by the current July 21,

2014 deadline or denies the stay.

5. I and my firm have exercised diligence in the prosecution of this

appeal. We have submitted the mediation questionnaire and ordered all transcripts

on an expedited basis from the Court reporter.

6. I also personally contacted and obtained the assistance of appellate

counsel immediately upon issuance of the underlying order of the Northern District

of California.

7. It is currently my intention to file Appellants Opening Brief and

Record on July 21, 2014 absent settlement of this dispute at the upcoming

settlement conference.

8. The Parties have jointly requested a stay of this appeal, but in the

event that the Ninth Circuit either does not rule on the pending motion to stay or

denies the stay, then Appellees Counsel does not oppose a request to extend the

initial deadline for the opening brief and record preparation to thirty days from the

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denial of the stay or thirty days from July 21, 2014, whichever is later, and to

recalculate all deadlines accordingly.

I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct and that this declaration was entered

into on this 16th day of July 2014 in Palo Alto, California.

/s/ Jack Russo Jack Russo

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EXHIBIT 1


UNITED STATES COURT OF APPEALS


INTEGRAL DEVELOPMENT

CORPORATION,


v.

VIRAL TOLAT,

Defendant Appellee.

9th Cir. No. 14-15597

SECOND STIPULATED MOTION

TO STAY APPEAL PENDING

FINAL JUDGMENT

Appellant Integral Development Corporation has appealed the District

Courts denial of a requested preliminary injunction.

Following a May 2, 2014 settlement conference before Magistrate Judge

Jacqueline Scott Corley in the underlying District Court case, D.C. No. 3:12-cv-

06575-JSW from the Northern District of California, Appellee and Appellant

continue to be engaged in ongoing settlement discussions that will result in a final

judgment on all claims. That final judgment would then be considered in this

appeal.

Appellee and Appellant agree that proceeding with consolidated appeals

from the forthcoming Final Judgment in the District Court will conserve both the

Courts and the parties resources, and fully justifies this extension.

Case: 14-15597 06/05/2014 ID: 9121052 DktEntry: 14 Page: 1 of 2Case: 14-15597 07/16/2014 ID: 9172194 DktEntry: 16 Page: 9 of 25

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Accordingly, the parties respectfully together move the Court to stay the

pending appeal for another 30 days to allow the completion of settlement

discussions and the entry of a final judgment in the District Court, which will allow

for consolidation of all appeals.

Dated: June 5, 2014 Respectfully submitted,

By: /s/ Jack Russo

Jack Russo, Counsel for Appellant

By: /s/ John Cooper

John Cooper, Counsel for Appellee

ATTORNEY ATTESTATION

As required by Circuit Rule 25-5(f), I attest under penalty of perjury that I

have obtained concurrence in the filing of this document has been obtained from

the signatory indicated by a conformed signature (/s/) within this e-filed document.

Dated: June 5, 2014 Respectfully submitted,

COMPUTERLAW GROUP LLP

By: /s/ Jack Russo

Jack Russo

Counsel for Plaintiff-Appellant

INTEGRAL DEVELOPMENT CORPORATION


EXHIBIT 2


UNITED STATES COURT OF APPEALS


INTEGRAL DEVELOPMENTCORPORATION, a Californiacorporation,


v.

VIRAL TOLAT, an individual,

Defendant - Appellee.

No. 14-15597

D.C. No. 3:12-cv-06575-JSWNorthern District of California, San Francisco

ORDER

The parties stipulated motion to further stay appellate proceedings is

granted. This case is stayed until July 21, 2014. At or prior to the expiration of the

stay, the appellant shall file the opening brief or a status report and motion for

appropriate relief. If the opening brief is filed, the answering brief shall be due

August 20, 2014. The optional reply brief is due 14 days after service of the

answering brief.

The filing of the opening brief or the failure to file a further motion will

terminate the stay.

FILEDJUN 06 2014

MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS

Tah/6.2.14/Pro Mo


For the Court:MOLLY C. DWYERClerk of the Court

Teresa A. Haugen, Deputy Clerk9th Circuit Rules 27-7, 27-10

Tah/6.2.14/Pro Mo 14-15597


EXHIBIT 3


EXHIBIT 4


Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor

San Francisco, CA 94104 (415) 954-4400

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John L. Cooper (State Bar No. 050324) [email protected] Stephanie P. Skaff (State Bar No. 183119) [email protected] Kelly A. Woodruff (State Bar No. 160235) [email protected] Anthony P. Schoenberg (State Bar No. 203714) [email protected] Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 Telephone: (415) 954-4400 Facsimile: (415) 954-4480

Attorneys for Defendant and Counter-Claimant VIRAL TOLAT

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

INTEGRAL DEVELOPMENT CORP., a California corporation,

Plaintiff and Counter-Defendant,

vs.

VIRAL TOLAT, an individual, and DOES 1-20,

Defendant and Counter-Claimant.

Case No. 3:12-CV-06575-JSW (LB)

JOINT STIPULATION FOR ENTRY OF FINAL JUDGMENT AND [PROPOSED] FINAL JUDGMENT

JOINT STIPULATION FOR ENTRY OF FINAL JUDGMENT Case No. 3:12-CV-06575-JSW (LB)

29322\4376293.1



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JOINT STIPULATION FOR ENTERY OF FINAL JUDGMENT

WHEREAS, the Court entered an Order on October 25, 2013, dismissing Integral

Development Corporations (Integral) claims for Violations of California Securities Law

(Claim 7), Declaratory and Injunctive Relief (Claim 8), Violation of California Penal Code

Section 502 (Claim 9) and Violation of the Computer Fraud and Abuse Act (Claim 10).

WHEREAS the Court entered an Order on February 24, 2014, granting summary

judgment in favor of Dr. Tolat and against Integral on Integrals claims for Violation of Federal

Securities Law (Claim 1) Trade Secret Misappropriation (Claim 2), Breach of Contract (Claim 3),

Breach of Fiduciary Duty (Claim 4), Breach of Loyalty by an Employee (Claim 5), Interference

with Prospective Business Advantage (Claim 6) and Copyright Infringement and Violation of 17

U.S.C. 1201 (Claim 11), and in favor of Dr. Tolat and against Integral on Dr. Tolats

counterclaims for Conversion (Counterclaim 1) and Breach of Contract (Counterclaim 2).

WHEREAS the parties entered into a settlement agreement in principle on May 2, 2014,

which was documented and executed on July 15, 2014, whereby Integral agreed to voluntarily

dismiss Claims 1 and 7, thereby dismissing with prejudice all securities law claims and Dr. Tolat

agreed to voluntarily dismiss Counterclaims 1, 2 and 3, thereby dismissing with prejudice all

counterclaims.

THE PARTIES HEREBY STIPULATE AS FOLLOWS:

The parties jointly request that the Court enter final judgment on Claims 2-6 and 8-11. A

proposed final judgment is attached as Exhibit A.

Respectfully submitted: Dated: July 16, 2014 COMPUTERLAW GROUP LLP

By: /s/ Jack Russo Jack Russo Attorneys for Plaintiff INTEGRAL DEVELOPMENT CORP.

JOINT STIPULATION FOR ENTRY OF FINAL JUDGMENT Case No 3:12-CV-06575-JSW (LB)

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Dated: July 16, 2014 FARELLA BRAUN + MARTEL LLP By: /s/ John L. Cooper John L. Cooper Attorneys for Defendant Viral Tolat


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ATTORNEY ATTESTATION

As required by General Order 45, I attest that I have obtained concurrence in the filing of

this document from the signatories indicated by the conformed signature (/s/) in this electronically

filed document.

By: /s/ John L. Cooper John L. Cooper


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EXHIBIT A



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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

INTEGRAL DEVELOPMENT CORP., a California corporation,

Plaintiff and Counter-Defendant,

vs.

VIRAL TOLAT, an individual, and DOES 1-20,

Defendant and Counter-Claimant.

Case No. 4:12-CV-06575-JSW (LB)

[PROPOSED] FINAL JUDGMENT

Judge: Hon. Jeffrey S. White Courtroom: 5, 2nd Floor

[PROPOSED] FINAL JUDGMENT Case No. 3:12-CV-06575-JSW (LB) 29322\4376287.1



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Pursuant to the Joint Stipulation for Entry of Final Judgment, the Court HEREBY

ORDERS as follows:

1. On October 25, 2013, the Court entered an Order dismissing Integral Development

Corporations (Integral) claims for Violations of California Securities Law (Claim 7),

Declaratory and Injunctive Relief (Claim 8), Violation of California Penal Code Section 502

(Claim 9) and Violation of the Computer Fraud and Abuse Act (Claim 10).

2. On February 24, 2014, the Court entered an Order granting summary judgment in

favor of Dr. Tolat and against Integral on Integrals claims for Violation of Federal Securities

Law (Claim 1) Trade Secret Misappropriation (Claim 2), Breach of Contract (Claim 3), Breach of

Fiduciary Duty (Claim 4), Breach of Loyalty by an Employee (Claim 5), Interference with

Prospective Business Advantage (Claim 6) and Copyright Infringement and Violation of 17

U.S.C. 1201 (Claim 11), and in favor of Dr. Tolat and against Integral on Dr. Tolats

counterclaims for Conversion (Counterclaim 1) and Breach of Contract (Counterclaim 2).

3. On May 2, 2014, the parties entered into a settlement agreement in principle,

which was documented and executed on July 15, 2014. Pursuant to the settlement agreement the

parties filed a Joint Stipulation of Dismissal of Integrals Claims 1 and 7, thereby dismissing with

prejudice all securities law claims, and Dr. Tolats Counterclaims 1, 2 and 3, thereby dismissing

with prejudice all counterclaims. On __________, 2014, the Court entered an order dismissing

Integrals Claims 1 with prejudice and Dr. Tolats Counterclaims 1, 2 and 3 with prejudice.

4. The Court further enters this final judgment in favor of Dr. Tolat and against

Integral on Claims 2-6 and 8-11.

[PROPOSED] FINAL JUDGMENT Case No. 3:12-CV-06575-JSW (LB) - 1 - 29322\4376287.1



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IT IS SO ORDERED. Dated: __________, 2014

Hon. Jeffrey S. White

United States District Judge

[PROPOSED] FINAL JUDGMENT Case No. 3:12-CV-06575-JSW (LB) - 2 - 29322\4376287.1


INTE Motion to extend time Final_clean114. 2014.06.05 INTE-A 2d Stip. Mot. Stay-Extend Pending Final J.215. 2014.06.06 INTE-A Ord. Grant Extension3redacted ECF Notice_exhbit42014-05-19 Joint Stipulation to Enter Judgment_finalEXHIBIT A tab2014-05-19 Exhibit A

Integral Development Corp vs Viral Tolat

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