Professional Documents
Culture Documents
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v.
AEQUITAS CAPITAL
MANAGEMENT, INC., an Oregon
corporation, and DOES 1-50, inclusive,
Defendants.
4C
Hon Cathy Ann Bencivengo
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DEFENDANTS EX PARTE MOTION FOR AN ORDER CONTINUING
TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES
EX PARTE MOTION
16.1(d)(3)(c) and Federal Rule of Civil Procedure Rule 16, Defendant Aequitas Capital
Management, Inc. (Aequitas) will and hereby does move ex parte for an Order
continuing all currently calendared dates and to set a Case Management Conference
date, allowing the Court to reschedule all associated dates in the above-captioned
This ex parte request is based on the fact that Defendant has suffered financial
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difficulties that have led to planned severe layoffs and the recent retention of bankruptcy
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counsel. These financial difficulties will require Defendant to revise and develop its
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attorney, and client resources given the possibility of a bankruptcy filing that could
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result in this case being stayed just prior to trial (or during or soon after trial). In that
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event, trial preparation and Court resources would be inefficiently utilized. The related
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action in San Diego County state court was continued on March 3, 2016 to September
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23, 2016.
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Good cause exists to hear this matter on an ex parte basis and to grant the relief
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requested pursuant to Federal Rule of Civil Procedure Rule 16. As set forth in the
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concurrently filed Declaration of Eric Gambrell, this ex parte Motion is made after
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meeting and conferring with counsel for Plaintiffs, including on February 29, 2016,
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fulfilling the requirements set forth in Local Rule 83.3(g). Plaintiffs counsel indicated
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The names, address, telephone number, and email addresses for Plaintiffs
counsel are:
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DEFENDANTS EX PARTE MOTION FOR AN ORDER CONTINUING
TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES
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James C. Danaher
Email: jdanaher@gordonrees.com
Maha Sarah
Email: msarah@gordonrees.com
William M. Rathbone
Email: wrathbone@gordonrees.com
M.D. Scully
Email: mscully@gordonrees.com
Gordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, California 92101
Telephone: (619) 696-6700
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This request is based upon this ex parte Motion, the attached Memorandum of
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Points and Authorities, the declaration of Eric Gambrell, all papers filed in this action,
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all matters judicially noticed or noticeable, and upon such other oral and documentary
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By
s/ Eric Gambrell
Eric Gambrell
Attorneys for Defendant and Counter-Claimant
Aequitas Capital Management, Inc.
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DEFENDANTS EX PARTE MOTION FOR AN ORDER CONTINUING
TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES
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I.
INTRODUCTION
Defendant Aequitas Capital Management, Inc. (Aequitas or Defendant) hereby
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applies to this Court ex parte for an order continuing trial, currently set for March 14,
2016 to August 22, 2016 or a date convenient to the Courts calendar and for a
continuance of all trial-related deadlines. Good cause exists for this continuance, and
such a continuance will support the interests of justice and best serves the interests of
II.
ARGUMENT
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A.
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The Federal Rules of Civil Procedure and Ninth Circuit authority empower this
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Court to grant a trial continuance upon an affirmative showing of good cause. Ungar v.
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Sarafite, 376 U.S. 575, 589 (1964), Sherman v. U.S., 241 F.2d 329, 338 (9th Cir. 1957).
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As set forth below, good cause exists for this continuance and the Court should grant
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Defendant moves this Court for continuance of the currently set March 14, 2016
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to August 22, 2016. Gambrell Decl., 2. No party would be prejudiced by the granting
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of this request. This request for a short continuance is necessitated by the severe
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have been heavily reported in the media. Defendant has retained restructuring counsel
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and advisors. The continuance is sought to allow Defendant to develop its damages
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model in light of these development as well as its affirmative defenses (including among
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others, offset) to reflect the severe harm caused by Plaintiffs breach of the Consulting
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Services Agreement, in, among other things, failing to advise Defendant and otherwise
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also sought to avoid the waste of judicial, attorney, and client resources (on both sides)
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given the possibility of an impending bankruptcy filing that could result in this case
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being stayed just prior to trial (or during trial or in the post-trial phase). In that event,
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DEFENDANTS EX PARTE MOTION FOR AN ORDER CONTINUING
TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES
the significant trial preparation and Court resources utilized on pretrial matters would be
inefficiently used. The related action pending in San Diego County state court was
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Defendant will suffer irreparable harm if its request for a trial continuance is not
heard on an ex parte basis in not having sufficient time to develop its damages theories
of trial on March 14, 2016, Defendant will suffer prejudice if the above-caption matter if
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III.
CONCLUSION
Defendants respectfully request an Order granting a continuance of trial to August
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22, 2016 or a date convenient to the Courts calendar and to set a Case Management
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Conference date, allowing the Court to reschedule all associated dates in the above-
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By
s/ Eric Gambrell
Eric Gambrell
Attorneys for Defendant and Counter-Claimant
Aequitas Capital Management, Inc.
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DEFENDANTS EX PARTE MOTION FOR AN ORDER CONTINUING
TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES