Free Motion for Extension of Time - District Court of Connecticut - Connecticut

Case 3:03-cv-01014-JBA

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Filed 10/27/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

H. JONATHAN FRANK and FRANK FAMILY 1996 TRUST, Plaintiffs, v. ARTHUR LOVETERE, CECIL URSPRUNG, LOUIS J. BACCEI, WORTH LOOMIS, THEODORE PATLOVICH, STEPHEN J. RAFFAY, WILLIAM P. ROWLAND and PETER EIO, Defendants.

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Civil Action No.: 3:03-CV-1014(JBA/JGM)

OCTOBER 26, 2005

MOTION FOR EXTENSION OF DISCOVERY SCHEDULE Pursuant to Local Civil Rule of the United States District Court for the District of Connecticut 7(b), Plaintiffs H. Jonathan Frank and the Frank Family 1996 Trust (collectively "the Franks") respectfully request that the Court extend the discovery schedule reflected in the Amended Scheduling Order dated July 22, 2005 the ("Scheduling Order") by sixty (60) days for each item in the Scheduling Order. In support thereof the Franks state as follows: 1. At a telephonic conference with the Court on July 20, 2005, defendants informed

the Court that they had issued, on May 4, 2005, a subpoena to Reflexite Corporation (the "Subpoena"). The claims in this matter focus on direct breaches of fiduciary duty by directors

ORAL ARGUMENT REQUESTED

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and officers of Reflexite Corporation ("Reflexite") toward the Franks consisting, in part, of numerous self-dealing transactions. As a result, the documents in the possession of Reflexite are central to the claims and defenses in this matter. As of July 20, 2005, the Franks were conducting negotiations with Reflexite's counsel over the scope of its production pursuant to the Subpoena. 2. The documents in the possession of Reflexite are the most significant documents

in the case and will certainly include such important documents as board minutes, notes of board meetings, correspondence concerning the various transactions, and correspondence concerning the Franks, etc. 3. The Court recognized the possibility of motion practice concerning the Subpoena

and by order dated July 27, 2005, referred this case to Magistrate Judge Joan Glazer Margolis for supervision of all discovery and resolution of all discovery disputes. 4. On August 15, 2005, the Franks, who had not received any documents from

Reflexite, moved for an order compelling Reflexite to comply with the Subpoena. That motion to compel was decided by Magistrate Judge Margolis by a ruling dated October 6, 2005 (the "Ruling"). The Ruling required Reflexite to produce documents responsive to a majority of the requests of the Subpoena by October 28, 2005. 5. As of the date of this motion, the Franks have not received any documents from

Reflexite pursuant to the Subpoena or the Ruling. 6. As a result of Reflexite's refusal to produce documents, and the necessity of the

Franks resorting to motion practice, the discovery schedule contemplated by the Scheduling Order has become unworkable. For example, under the present schedule, the Franks would be

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required to submit expert reports on November 1, 2005 ­ only four days after Reflexite is required to produce documents under the Ruling. 7. The Franks believe that, despite the five month delay following service of the

Subpoena on Reflexite and despite a three month delay from the issuance of the Scheduling Order, an extension of the discovery schedule by sixty (60) will be sufficient time to complete the contemplated discovery (assuming that Reflexite fully complies with the Ruling and no other motion practice becomes necessary). 8. 9. This is plaintiffs' first request for extension of the discovery schedule. Counsel for the Franks has contacted counsel of record for the parties concerning

the relief requested in this motion. Counsel for the defendants agree that, under the circumstances, some measure of relief is necessary and take no position on the Franks request for a 60-day extension and believe an extension of the Scheduling Order by thirty (30) days would be sufficient.

Wherefore, plaintiffs respectfully request that the dues dates and conference date set out in the Amended Scheduling Order dated July 22, 2005 be extended by sixty days. Respectfully submitted, PLAINTIFFS H. JONATHAN FRANK and FRANK FAMILY 1996 TRUST

By: /s/ Terence J. Gallagher Richard A. Strassberg (ct24905) Jeffrey A. Simes (ct24906) GOODWIN PROCTER LLP 599 Lexington Avenue New York, New York 10022 (212) 813-8800 (phone) (212) 355-3333 (fax)

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-andJonathan Tropp (ct11295) Terence J. Gallagher (ct22415) DAY, BERRY & HOWARD LLP One Canterbury Green Stamford, CT 06901 (203) 977-7300 (phone) (203) 977-7301 (fax) Their Attorneys

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CERTIFICATION

This is to certify that a copy of the foregoing was sent via overnight courier, postage prepaid, this 26th day of October, 2005, to:

James T. Cowdery, Esq. Sarah A. L. Merriam, Esq. Cowdery, Ecker & Murphy, L.L.C. 750 Main Street Hartford, CT 06103-2703 (860) 278-5555

Edward F. Spinella, Esq. Reid and Riege, P.C. One Financial Plaza Hartford, CT 06103 (860) 240-1045

James T. Shearin, Esq. Pullman & Comley, LLC 850 Main Street, P.O. Box 7006 Bridgeport, CT 06601-7006 Phone: (203) 330-2000

/s/ Terence J. Gallagher Terence J. Gallagher

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