Free Ex Parte Application - District Court of California - California

Case 3:07-cv-06169-BZ

Document 32

Filed 03/07/2008

Page 1 of 6

1 2 3 4 5 6 7 8

GORDON J. ZUIDERWEG, ESQ. (SBN 83101) LAW OFFICES OF BARRY K. ROTHMAN 1901 Avenue of the Stars Suite 370 Los Angeles, California 90067 Telephone: (310) 557-0062 Facsimile: (310) 557-9080 Attorneys For Defendants Gregory S. Soter and Alan L. Rossi

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

9
10 11 12 13 14
v.

E&M TRUST, Plaintiff,

15
16 17 18 19 20 21 22 23 24 25 26 27 28

INTERNATIONAL HOLDING CORPORATION OF NEVADA, et at., Defendants.

) ) ) ) ) ) ) ) ) ) )

CASE NO.:

C07-06l69 BZ

EX PARTE APPLICATION OF DEFENDANTS SOTER AND ROSSI TO EXTEND DATES TO CONDUCT RULE 26 MEET AND CONFER, TO COMPLETE INITIAL DISCLOSURES, AND TO FILE RULE 26(f) REPORT; DECLARATION OF GORDON J. ZUIDERWEG IN SUPPORT THEREOF

---------------)
Defendants Gregory S. Soter and Alan L. Rossi hereby apply to the Court ex parte for an Order extending time to meet and confer pursuant to Rule 26 ofthe Federal Rules of CiviI Procedure regarding initial disclosures, to complete the initial disclosures, and to file the Rule 26(f) Report. This Application is made for good cause pursuant to Rule 6(b) of the Federal Rules of Civil Procedure and Local Rules 6-3 and 7-10. Pursuant to the Court's Order Setting Initial Case Management Conference And ADR Deadlines (Docket No.2), the parties are to meet and confer pursuant to Rule 26(f) regarding initial disclosures by March 10,2008, and are to complete initial disclosures and file the Rule 26(f) report by March 24, 2008. On February 27,2008, the Court granted the Motion For More Definite Statement of Defendants Soter and Rossi. Pursuant to the Court's Order Granting Motion For More Definite Statement (Docket 1
EX PARTE APPLICATION OF DEFENDANTS SOTER AND ROSSI - Case No. C07-06l69 BZ

Case 3:07-cv-06169-BZ

Document 32

Filed 03/07/2008

Page 2 of 6

1 No. 31), Plaintiffs must file an amended complaint which addresses the issues raised in Defendants' 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion For More Definite Statement no later than March 20,2008. The response of Defendants Soter and Rossi to the amended complaint is to be filed no later than April 7, 2008. Defendants Soter and Rossi respectfully submit that it will be impossible for the parties to meet and confer pursuant to Rule 26 regarding initial disclosures and to complete initial disclosures and file the Rule l2(f) Report by March 10,2008. The amended complaint is not yet on file. Thus, matters such as the identity of individuals having discoverable information, the description and location of relevant documents, the computation of damages, the nature and basis for claims and for defenses, preserving discoverable information, a discovery plan, and the possibilities for resolution ofthis matter cannot be discussed by the parties at this time because the initial Complaint was so indefinite that Defendants' Motion For More Definite Statement was granted and because the amended complaint has not yet been filed. Therefore, Defendants Soter and Rossi hereby request that the dates for the parties to meet and confer regarding initial disclosures pursuant to Rule 26, and to complete initial disclosures and file a Rule 26(f) Report be extended approximately sixty days to and including May 12,2008, and May 26, 2008, respectively. Defendants Soter and Rossi will be substantially harmed and prejudiced ifthe above-requested extension is not granted in that, at this time, they cannot address the required issues at this time because there is no active complaint on file and because, thus, they do not know the nature of the allegations against them. There have been no previous time modifications in regard to the dates for the parties to meet and confer re initial disclosures pursuant to Rule 26, and to complete initial disclosures and file a Rule 26(f) Report.

II II II II II II
2 EX PARTE APPLICATION OF DEFENDANTS SOTER AND ROSSI - Case No. C07-06l69 BZ

Case 3:07-cv-06169-BZ

Document 32

Filed 03/07/2008

Page 3 of 6

1


As set forth at length in the attached Declaration of Gordon J. Zuiderweg, Defendants' counsel

2
discussed the proposed extension of the dates for the parties to meet and confer regarding initial 3
disclosures pursuant to Rule 26, and to complete initial disclosures and file a Rule 26(f) Report, and 4
this Ex Parte Application with opposing counsel by telephone on March 6,2008, and March 7, 2008. 5 Defendants Soter and Rossi respectfully refer the Court to Paragraph 4 of the attached Declaration of

6
Gordon J. Zuiderweg. 7
8
Dated: March 7, 2008 9
10 11
12
13
14
15 16
17
18
19
20 21
22
23
24
25 26
27
28

3


LAW OFFICES OF BARRY K. ROTHMAN

Attorneys For Defendants Gregory S. Sote and Alan L. Rossi

By~Jwd//Jj~

.

EX PARTE APPLICATION OF DEFENDANTS SOTER AND ROSSI - Case No. C07-06169 BZ


Case 3:07-cv-06169-BZ

Document 32

Filed 03/07/2008

Page 4 of 6

1

DECLARATION OF GORDON J. ZUIDERWEG

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
27 28

I, Gordon J. Zuiderweg, declare as follows: 1. I am an attorney at law duly licensed to practice before all of the Courts of the State of

California and before this Court. I am attorney for Defendants Gregory S. Soter and Alan L. Rossi herein. This Declaration is based upon my personal knowledge and personal participation in the events described. If called to testify as a witness, I could and would testify competently as follows. 2. This Declaration is submitted in support ofthe Ex Parte Application ofDefendants Soter

And Rossi To Extend Dates To Conduct Rule 26 Meet and Confer, To Complete Initial Disclosures, And To File Rule 26(f) Report. Currently, pursuant to the Court's Order Setting Initial Case

Management Conference And ADR Deadlines (Docket No.2), the parties are to meet and confer pursuant to Rule 26 regarding initial disclosures by March 10, 2008, and are to complete initial disclosures and file the Rule 26(f) Report by March 24, 2008. Defendants' Ex Parte Application requests that those deadlines be extended to May 12,2008, and May 26, 2008, respectively. 3. The grounds for Defendants' request are as follows. On February 27, 2008, the Court

granted the Motion For More Definite Statement ofDefendants Soter and Rossi. Pursuant to the Court's Order Granting Motion For More Definite Statement (Docket No. 31), Plaintiff must file an amended complaint which addresses the issues raised in Defendants' Motion For More Definite Statement no later than March 20,2008. The response of Defendants Soter and Rossi to the amended complaint is to be filed no later than April 7, 2008. Defendants Soter and Rossi respectfully submit that it will be impossible for the parties to meet and confer pursuant to Rule 26 regarding initial disclosures and to complete initial disclosures and file the Rule 12(f) Report by March 10,2008. The amended complaint is not yet on file. Thus, matters such as the identity of individuals having discoverable information, the description and location of relevant documents, the computation of damages, the nature and basis for claims and for defenses, preserving discoverable information, a discovery plan, and the possibilities for resolution ofthis matter cannot be discussed by the parties at this time when there is no viable complaint on file.
II II
4

EX PARTE APPLICATION OF DEFENDANTS SOTER AND ROSSI - Case No. C07-06169 BZ

Case 3:07-cv-06169-BZ

Document 32

Filed 03/07/2008

Page 5 of 6

4. 2 3
4

I discussed the proposed extension ofthe dates for the parties to meet and confer pursuant

to Rule 26 regarding initial disclosures and to complete the initial disclosures and file a Rule 26(f) Report with opposing counsel on March 6, 2008, and March 7, 2008. a. I spoke with David Hicks, Plaintiff s counsel, by telephone on March 6, 2008, at

5 6 7 8 9 10 11 12
13

approximately 10:55 a.m., for about fifteen minutes in regard to the proposed extensions. Mr. Hicks indicated that he was to begin a six-week state court trial on March 17,2008, and that, thus, he would not be available for approximately sixty days. I tried to further discuss this issue with Mr. Hicks at approximately 2:00 p.m., on March 6, 2008, but Mr. Hicks was apparently unavailable since my call went directly to voice mail. On the morning of March 7, 2008, I received a voice mail message from Ms. Altieri ofMr. Hicks's office. I returned Ms. Altieri's call, and I spoke by telephone with Ms. Altieri at approximately 10:45 a.m., for a few minutes. I did not speak directly with Mr. Hicks, who was apparently in court. I advised Ms. Altieri that I would be bringing this Ex Parte Application today.
b.

I attempted to contact Arnie Rooney and Brendan P. Cullen of Sullivan &

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Cromwell, attorneys for Defendant ABN AMRO Bank, N.A., on March 6, 2008, and March 7, 2008, to discuss the extension ofthe dates for the Rule 26 meet and confer, the completion of initial disclosures, and the filing of the Rule 26(f) Report, and to discuss this Ex Parte Application. I left a voice mail message for Ms. Rooney at approximately 10:50 a.m., on March 6,2008, and for Mr. Cullen at 10:55 a.m., on March 7,2008. Shortly after noon, at approximately 12:05 p.m., on March 7,2008, Mr. Rooney telephoned me. We spoke in regard to the proposed extensions and this Ex Parte Application. Ms. Rooney stated that she had no objection to the proposed extensions and that Defendant ABN AMRO Bank, N.A. would not oppose this Ex Parte Application.

I declare under penalty of perjury under the laws of the State of California and those of the United States of America that the foregoing is true and correct. Executed in Los Angeles, California, on March 7,2008.

5

EX PARTE APPLICATION OF DEFENDANTS SOTER AND ROSSI - Case No. C07-06169 BZ

Case 3:07-cv-06169-BZ

Document 32

Filed 03/07/2008

Page 6 of 6

PROOF OF SERVICE 2 3 4 5 6 7 8 9 Gordon J. Zuiderweg certifies and declares as follows: I am an attorney at law duly licensed to practice before all the courts of the State of California, and I am a member ofthe Law Offices of Barry K. Rothman, attorneys for Defendants Soter and Rossi herein. I am over the age of 18 and not a party to this action. My business address is 190 1 Avenue of the Stars, Suite 370, Los Angeles, California 90067, which is located in the county where the mailing described below took place. On March 7,2008, I deposited in the mail at Los Angeles, California, true and correct copies of the foregoing EX PARTE APPLICATION OF DEFENDANTS SOTER AND ROSSI TO EXTEND RULE 26 MEET MID CONFER, TO COMPLETE INITIAL


IODATES TO CONDUCT 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DISCLOSURES,

AND TO FILE RULE 26(f) REPORT; DECLARATION OF GORDON J.

ZUIDERWEG IN SUPPORT THEREOF, in sealed envelopes, with postage prepaid, addressed to: David Hicks, Esq. David Hicks, APLC 2200 Powell Street Suite 990 Emeryville, California 94608 Facsimile: (510) 594-9555 Brendan P. Cullen, Esq. Arnie Rooney, Esq. Sullivan & Cromwell LLP 1870 Embarcadero Road Palo Alto, California 94303 Facsimile: (650) 461-5700

On March 7, 2008, I also transmitted true and copies of the foregoing EX PARTE APPLICATION OF DEFENDANTS SOTER AND ROSSI TO EXTEND DATES TO CONDUCT RULE 26 MEET AND CONFER, TO COMPLETE INITIAL DISCLOSURES, AND TO FILE RULE 26(f) REPORT; DECLARATION OF GORDON J. ZUIDERWEG IN SUPPORT THEREOF, to all counsel at the above-listed facsimile numbers. I declare under penalty of perjury under the laws of the State of California and those of the United States of America that the foregoing is true and correct. Executed in Los Angeles, California on March 7, 2008.

6
EX PARTE APPLICATION OF DEFENDANTS SOTER AND ROSSI - Case No. C07-06l69 BZ