McConnell & Malek Enterprises v. Proof Mark, Inc

Opinion

1 MICHAEL J. TARUTIS CA BAR #188828 MATTHEW C. SCHUMACHER CA BAR #344005 2 2181 Greenwich Street San Francisco, CA 94123 3 Tel: 415-633-6841 Fax: 303-997-3270 4 michael@bendlawoffice.com matthew@bendlawoffice.com 5 Attorneys for Plaintiff: MCCONNELL & MALEK ENTERPRISES

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10 11 MCCONNELL & MALEK ENTERPRISES, a ) Case No.: 23-cv-00010-LJC California corporation d/b/a SFDF ) 12 CONSULTANTS ) STIPULATION TO SUBMIT DISPUTE ) TO BINDING ARBITRATION AND TO 13 ) STAY PROCEEDINGS Plaintiff, ) 14 ) vs. ) 15 ) Judge: HON. LISA J. CISNEROS PROOFMARK, INC., a Delaware corporation ) Trial Date: NONE 16 d/b/a PROOF ANALYTICS and DOES 1-30 ) Inclusive, ) 17 ) ) 18 Defendants. ) ) 19 ) 20

27 2 3 Pursuant to United States District Court for the Northern District of California Local Rule 7- 4 12, MCCONNELL & MALEK ENTERPRISES d/b/a/ SFDF ENTERPRISES and PROOFMARK, 5 INC. d/b/a PROOF ANALYTICS (hereinafter referred to as the “PARTIES”) respectfully request 6 that this Court issue an order in the matter because the parties have mutually agreed to submit the 7 above-captioned case to binding arbitration under the American Arbitration Association. This mutual 8 agreement and the proposed Order would also respectfully ask the Court to vacate its previous order 9 for the case to be submitted to mediation (June 2, 2023). 10 The result of these proposed orders will subsequently render Defendant’s pending Motion to 11 Compel Arbitration, scheduled to be heard on August 15, 2023, moot with no further action required 12 by the parties or the Court. 13 The basis for this stipulation is as follows: 14 1. The Court has jurisdiction over the subject matter of this action and over each of the 15 parties hereto, and venue of this action is proper in this Court. 16 2. The PARTIES stipulate that an order in the form attached hereto may be filed with 17 and entered by the Court, hereby ordering the PARTIES of the above-captioned matter to vacate the 18 assignment of a mediator in the matter dated June 2, 2023 and for the parties to immediately proceed, 19 instead, to binding arbitration with the American Arbitration Association. 20 3. The parties also stipulate to a stay of the proceedings in this matter until arbitration 21 has been concluded. The parties agree not to seek discovery during the pendency of the stay other 22 than what is allowed and agreed to in the arbitration proceeding. Neither party will seek any relief 23 from this Court beyond any relief necessary to enforce the terms of the arbitration award. The parties 24 agree that during the pendency of the stay, neither party will individually move to dismiss the case in 25 this Court. 26 4. This Court has the authority to issue a stay of the proceedings pending an alternate 27 dispute resolution proceeding like here, when such ADR was agreed to within the written agreement 1 to stay proceedings is incidental to the power inherent in every court to control the disposition of the 2 causes of its docket with economy of time and effort for itself, for counsel and for litigants.” Landis 3 v. North American Co., 299 U.S. 248, 254-255 (1936). The USDC, Northern District of California 4 has relied on this Supreme Court case as recently as June 15, 2022 in Pacific Structures v. Greenwich 5 Insurance Co., case number 23-cv-04438-HSG (2022) citing that “. . staying this case pending 6 resolution of the underlying state action best serves the efficient use of party and judicial resources,” 7 as the same would hold true for the resolution of the binding arbitration in the instant matter (not used 8 for precedent as a USDC ruling, but merely as an example of recent similar rulings). 9 5. Accordingly, the parties, through counsel, stipulate and request the Court to order as 10 follows: 11 a. The Court is to vacate its orders of April 5, 2023 and June 2, 2023, ordering the parties 12 to mediation; 13 b. The parties shall commence arbitration with the American Arbitration Association 14 under Case 01‐23‐0000‐0989 to resolve the entire matter, as agreed; 15 c. The Defendant’s Motion to Compel Arbitration that was set for a hearing on the matter 16 on August 15, 2023 is moot and therefore withdrawn by Defendant, requiring no 17 further action by this Court; 18 d. The parties shall file a mutual status report on the matter in six months’ time from the 19 date of this order; 20 e. Further proceedings on the merits of this case shall be stayed pending final resolution 21 of the matter in binding arbitration; 22 f. Nothing in this stipulation prevents either party from presenting to the Court for 23 resolution of any issues regarding a party’s compliance with the terms of this 24 stipulation and each party reserves the right to request that the Court lift this stay for 25 any such lack of compliance, particularly if a party refuses to move forward with the 26 arbitration proceedings. The parties will voluntarily work in good faith to resolve the 27 matter before they may petition the Court for further guidance. 1 6. The parties will file a status report within 20 days of the conclusion of the arbitration 2 || or as ordered in sub-paragraph 5(d), above, whichever is sooner. 3 7. The parties represent that the actions the parties are required to perform pursuant to 4 || the proposed Order can and will be performed, and that the parties will later raise no claim of mistake, 5 || hardship or difficulty of compliance as grounds for asking the Court to modify any of the provisions 6 || contained within such Order. 7 || DATED: July 7, 2023 BEND LAW GROUP, P.C.

: (Mf 10 Al CHAEL J TARUTIS MATTHEW C. SCHUMACHER Attorneys for PLAINTIFF 12 MCCONNELL & MALEK ENTERPRISES d/b/a/ 13 SFDF CONSULTANTS 14 WILSON & ASSOCIATES, P.C. 15 16 /s/ Stuart N. Wilson /s/ 17 STUART N. WILSON Attorneys for DEFENDANT 18 PROOF MARK, INC. d/b/a PROOF ANALYTICS 19 20 21 ORDER 22 23 34 IT IS SO ORDERED by the Court, this 7 day of July 2023.

25 26 es, | Martt— . LISA JACISNEROS 27 TED STATES DISTRICT