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JOINT STIPULATION, MOTION, AND [PROPOSED] ORDER FOR STAY OF LITIGATION 

PENDING FINALIZATION OF SETTLEMENT AGREEMENT

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RICHARD S.J. HUNG (SBN: 197425)

rhung@mofo.com

SABRINA A. LARSON (SBN: 291661) 

slarson@mofo.com

MORRISON & FOERSTER LLP 

425 Market Street 

San Francisco, CA 94105-2482 

Telephone: (415) 268-7000 

Facsimile: (415) 268-7522 

Attorneys for Plaintiff TIBCO SOFTWARE INC. 

KIMBERLY D. HOWATT (SBN: 196921) 

khowatt@gordonrees.com

GORDON & REES LLP 

101 W. Broadway, Suite 2000 

San Diego, CA 92101 

Telephone: (619) 696-6700 

Facsimile: (619) 696-7124 

ADAM M. TSCHOP (SBN: 209767) 

Adam.Tschop@thermofisher.com 

THERMO FISHER SCIENTIFIC INC. 

5823 Newton Drive 

Carlsbad, CA 92008 

Telephone: (760) 603-7200 

Facsimile: (760) 476-6048 

Attorneys for Defendant FEI COMPANY

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

TIBCO SOFTWARE INC.

Plaintiff, 

v. 

FEI COMPANY, 

Defendant. 

CASE NO. 17-CV-00696-EJD

JOINT STIPULATION, MOTION, 

AND [PROPOSED] ORDER FOR 

STAY OF LITIGATION PENDING 

FINALIZATION OF SETTLEMENT 

AGREEMENT 

Dept.: Courtroom 4 

Judge: Hon. Edward J. Davila 

Complaint Filed: Feb. 10, 2017 
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JOINT STIPULATION, MOTION, AND [PROPOSED] ORDER FOR STAY OF LITIGATION 

PENDING FINALIZATION OF SETTLEMENT AGREEMENT

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Plaintiff TIBCO SOFTWARE INC. (“Plaintiff”) and defendant FEI COMPANY 

(“Defendant”) hereby stipulate and jointly move this Court for an order staying the abovecaptioned litigation for a period of sixty (60) days to allow for the parties to finalize, perform, 

and complete their settlement agreement. 

I. FACTUAL BACKGROUND 

Plaintiff commenced this lawsuit by the filing of its initial complaint on February 10, 

2017. (Doc. 1.) Plaintiff’s amended pleading, which is the operative complaint in this case, was 

filed on May 2, 2017. (Doc. 25.) Defendant answered the amended complaint on May 16, 2017, 

and filed an amended answer on June 16, 2017. (Docs. 26, 34.) 

The parties filed their joint case management statement on June 8, 2017. (Doc. 32.) On 

June 12, 2017, this Court issued its Case Management Order, establishing the schedule for 

discovery, motions, and pre-trial matters in this case. (Doc. 33.) On November 22, 2017, this 

Court granted the parties’ request for an extension of certain discovery and motion-filing 

deadline, which order did not affect the originally-set joint trial setting conference statement and 

trial setting conference dates. (Doc. 39.) 

The parties participated in a court-sponsored ADR session with Mr. Mark LeHocky 

pursuant to Civ.L.R. 16-8 on July 13, 2017. (Doc. 35.) During the litigation proceedings, the 

parties resumed the settlement discussions, and on or about November 30, 2017, successfully 

reached an agreement for the resolution of this matter. 

The terms of the parties’ settlement agreement provide for certain performance to occur 

by or before the first part of January 2018, after which time they will submit a joint motion for 

the dismissal of the case, in its entirety. The parties fully anticipate and expect that such 

performance shall timely occur; however, if such is not accomplished, the parties would, in such 

circumstance, notify this Court and submit a proposed modified scheduling order to resume the 

litigation proceedings. This approach would avoid the need for a new lawsuit relative to the 

parties’ dispute, and the corresponding expenditure of judicial resources and litigant expense 

should the case unexpectedly resume. 

The parties are in agreement on this matter, and thus submit this stipulation, motion, and 
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JOINT STIPULATION, MOTION, AND [PROPOSED] ORDER FOR STAY OF LITIGATION 

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proposed order jointly. 

II. AUTHORITY FOR MOTION 

“[T]he power to stay proceedings is incidental to the power inherent in every court to 

control the disposition of the causes on its docket with economy of time and effort for itself, for 

counsel, and for litigants.” Landis v. North American Co., 299 U.S. 248, 254-55 (1936). “How 

this can best be done calls for the exercise of judgment, which must weigh competing interests 

and maintain even balance. Id., citing Kansas City Southern Ry. v. United States, 282 U.S. 760, 

763 (1931) and Enelow v. New York Life Ins. Co., 293 U.S. 379, 382 (1935). 

In this case, the requested stay serves the interests of economy of time and effort for this 

Court and for the litigants (as well as their counsel), because it allows for the completion of an 

agreement for the resolution of all settlement of all claims, defenses, and issues in the abovecaptioned case. As Plaintiff and Defendant are in agreement on the stay request, it would not 

cause either party any undue hardship. The requested stay period of sixty (60) days is moderate 

and not excessive, such that, if it was to become necessary, this 2017-filed case would still be 

subject to an expedient trial. Further, it would avoid the need for the filing of a second lawsuit, 

starting the litigation proceedings anew, should the settlement agreement not be performed as 

projected (though such is not expected by the parties to occur). 

Accordingly, good cause exists for this Court’s entry of an order staying the proceedings 

in this above-captioned matter for a period of sixty (60) days, i.e., until January 29, 2018. 

III. CONCLUSION 

Based on the foregoing, the Parties jointly request that this Court stay this litigation for a 

period of sixty (60) days, i.e., until January 29, 2018, to allow for the parties to finalize, perform, 

and complete their settlement agreement. 

Dated: December 1, 2017 MORRISON & FOERSTER LLP

By: /s/ Sabrina A. Larson

Sabrina A. Larson 

Attorneys for Plaintiff 

TIBCO SOFTWARE INC.
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JOINT STIPULATION, MOTION, AND [PROPOSED] ORDER FOR STAY OF LITIGATION 

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Dated: December 1, 2017 GORDON & REES LLP

By: /s/ Kimberly D. Howatt

Kimberly D. Howatt 

Attorneys for Defendant 

FEI COMPANY
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JOINT STIPULATION, MOTION, AND [PROPOSED] ORDER FOR STAY OF LITIGATION 

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[PROPOSED] ORDER 

PURSUANT TO STIPULATION, IT IS SO ORDERED. 

Therefore, good cause appearing and to allow for the parties to finalize, perform, and 

complete their settlement agreement, the above-captioned case, in its entirety, is stayed for a 

period of sixty (60) days, i.e., until January 29, 2018. 

Dated:____________________ ______________________________ 

 Hon. Edward J. Davila 

United States District Judge 

December 1, 2017
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JOINT STIPULATION, MOTION, AND [PROPOSED] ORDER FOR STAY OF LITIGATION 

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ATTESTATION 

I, Kimberly D. Howatt, am the ECF user whose ID and password are being used to file 

this Joint Stipulation, Motion, and [Proposed] Order for Stay of Litigation Pending Finalization 

of Settlement Agreement. In compliance with Civ. L.R. 5-1(i)(3), I hereby attest that Sabrina A. 

Larson has concurred in this filing. 

Dated: December 1, 2017 GORDON & REES LLP 

By: /s/ Kimberly D. Howatt

Kimberly D. Howatt 

Attorneys for Defendant 

FEI COMPANY
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JOINT STIPULATION, MOTION, AND [PROPOSED] ORDER FOR STAY OF LITIGATION 

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CERTIFICATE OF SERVICE 

I hereby certify that on December 1, 2017, a copy of the foregoing document was filed 

electronically with the Clerk of the Court using the Court’s CM/ECF electronic filing system, 

which will send an electronic copy of this filing to all counsel of record. 

_________________________

Sylvia Durazo 

1132960/35829917v.1