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Equalia, LLC v. Kushgo LLC

United States District Court, D. Nevada

February 23, 2017

EQUALIA, LLC, a California limited liability company, and HOVERBOARD TECHNOLOGIES CORPORATION, a California corporation, Plaintiffs,
v.
KUSHGO LLC dba HALO BOARD, a California limited liability company; HALO BOARD LLC, an Oregon limited liability company; ARTHUR ANDREASYAN, an individual; and SHENZHEN WINDGOO INTELLIGENT TECHNOLOGY CO. LTD., a foreign company, Defendants.

          STEPHEN J. ERIGERO (SBN 11562) TIMOTHY J. LEPORE (SBN 13908) LAEL D. ANDARA (California SBN 215416) MARIE E. SOBIESKI (California SBN 278008) ROPERS, MAJESKI, KOHN & BENTLEY Attorneys for Plaintiffs EQUALIA, LLC and HOVERBOARD TECHNOLOGIES CORPORATION

          PLAINTIFFS' MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANTS KUSHGO, LLC, ARTHUR ANDREAYSAN, AND HALO BOARD, LLC'S EMERGENCY MOTION TO QUASH AMENDED DEPOSITION NOTICE AND FOR PROTECTIVE ORDER [FIRST REQUEST]

         Plaintiffs Equalia, LLC and Hoverboard Technologies Corporation (collectively “Equalia”), by and through their counsel of record, Ropers Majeski Kohn & Bentley, hereby moves this Court for an extension of time to respond to Defendants' Emergency Motion To Quash Amended Deposition Notice And For Protective Order (ECF No. 77 and 78).

         Equalia's Motion for Extension of Time is based on the following Memorandum of Points and Authorities; the pleadings and papers on file herein; the Declaration of Lael D. Andara., counsel for Equalia; and any oral arguments that this Court will permit at a hearing on the matter.

         MEMORANDUM OF POINTS AND AUTHORITIES

         I. INTRODUCTION

         On February 17, 2017, Equalia conducted the deposition of Arthur Andreasyan, a Kusgho officer and employee. During the deposition, Equalia confirmed that Avetik Andreasyan, another crucial Kusgho officer and employee, held pertinent information and knowledge regarding Kushgo's operations in jurisdictions outside of California. That same day, Equalia served on Defendant's counsel a “Notice of Taking Deposition of Avetik Andreasyan” for February 24, 2017, which Equalia later re-noticed for March 7, 2017 to accommodate Avetik's extended absence from this country.

         On February 21, 2017, Defendants filed an Emergency Motion to Quash Equalia's Amended Deposition Notice of Avetik Andreasyan. ECF No. 78. In this motion, Defendants falsely argue that Equalia is limited to only deposing Defendants' designated corporate representative about Kusgho's jurisdiction operations, and therefore cannot depose Avetik. Moreover, Defendants now erroneously claim that Avetik is not a Kusgho employee, and that Equalia must incur costly expenses and time to personally serve Avetik as a non-party.

         Equalia refutes Defendants position and intend to oppose Defendants' Emergency Motion. Specifically, testimony developed during Arthur's deposition confirms that Avetik is an employee and managing agent for Kusgho, and therefore Equalia can notice his deposition without a subpoena. However, Equalia has been informed that a certified copy of Arthur's deposition transcript is not available to support Equalia's opposition until February 27, 2017. As a result, Equalia moves this Court for an extension to respond to Defendants' Emergency Motion until March 3, 2017, especially because Equalia will suffer prejudice absent this brief extension.

         II. SUMMARY OF PERTINENT FACTS

         Since February 2, 2017, Equalia informed Defendants that it intended to depose Avetik Andreasyan because Equalia believed Avetik would have relevant information to jurisdictional issues based on his representations to Equalia at the Consumer Electronics Show (“CES”) in Las Vegas, Nevada. Andara Decl., ¶¶3-7, Ex. A-C. Specifically, at CES Avetik introduced himself to Equalia's officers and agents as a partner with Arthur Andreasyan in Kushgo and held himself out as a Kusgho officer to the public. Andara Decl., ¶¶3-5, Ex. B-C. Based on these representations, Equalia intended to depose Avetik pursuant to Federal Rules of Civil Procedure, Rule 30(a)(1) as a Kusgho managing agent and officer with factual knowledge about Kushgo's jurisdictional operations. Andara Decl., ¶7.

         Notwithstanding this simple request, Defendants made specious arguments to obstruct Equalia's right underneath this Court's Discovery Plan and Scheduling Order to conduct basic jurisdictional discovery. ECF No. 66. Exemplary of this obstruction is Defendants' arguments that Equalia is only limited to depose a corporate representative of Defendants, and therefore cannot conduct further depositions of individuals who likely have jurisdictional information regarding Kusgho's operations. ECF No. 78, 3:1-4. Moreover, Defendants erroneously now claim Avetik is not a Kusgho employee, and that Equalia must incur costly expenses and time to personally serve Avetik as a non-party. ECF No. 2:22-3:1; Andara Decl., ¶7, 3:7-8. But this is nothing more than an apparent attempt by Defendants to avoid Avetik providing pertinent jurisdictional testimony.

         For example, on February 6, 2017, the parties conducted a meet and confer to resolve this issue (among others) informally before noticing Avetik's deposition. Andara Decl. ¶7. At this meet and confer, Equalia's counsel made it specifically clear to Defendants' counsel that Equalia wanted to notice Avetik's deposition as a Kushgo managing agent with pertinent jurisdictional information. Andara Decl., ¶7, 3:5-6. Despite not making any factual inquiry into Avetik's employment relationship with Kusgho, Defendants' counsel represented Avetik was a non-party and Equalia needed to personally serve him. Andara Decl., ¶7, 3:7-8. Moreover, Defendants' counsel bluntly stated Kushgo was not going to consent to the depositions of Arthur's family members regardless of whether they were employees or not. Andara Decl., ¶7, 4:20-21. Instead, Defendants' counsel informed that Equalia would have to move to compel Avetik's deposition. Andara Decl., ¶7, 5:10-17.

         Thereafter, on February 17, 2017, Equalia took the deposition of Arthur. Andara Decl., ¶8. During this deposition, Arthur testified that Avetik: (1) was one of two primary employees for Kushgo; (2) met with the manufacture of the infringing product that spawned this litigation; (3) was the primary person to communicate with the manufacturer over the last year; (4) worked at the Kushgo facility; (5) appeared on multiple social media postings and videos, (6) and was listed by Kushgo as the Chief Operating Officer at the recent CES show that Avetik had attended as an exhibitor for Kushgo. Andara Decl., ¶¶9-11. Based on Arthur's testimony, that same day Equalia served on Defendants' counsel a Notice of Taking Deposition of Avetik Andreasyan because it was clear Kushgo employed Avetik and he was a managing agent. Andara Decl., ¶¶12-14, Ex. F.

         III. ARGUMENT

         A.THIS COURT SHOULD EXTEND THE DATE FOR EQUALIA TO RESPOND TO DEFENDANTS' EMERGENCY MOTION BECAUSE ARTHUR'S TESTIMONY IS PERTINENT TO DECIDING THIS MOTION.

         When Rule 30 was amended in 1970 to place a duty on a corporation to designate the person with the most knowledge of the subject area to be examined on the corporation, it did not preclude a party from requesting to depose a specific officer or agent of a corporation. United States v. One Parcel of Real Estate at 5860 N. Bay Rd., Miami Beach, Fla., 121 F.R.D. 439, 440 (S.D. Fla. 1988); Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625, 628 (C.D. Cal. 2005). As the advisory committee notes to the 1970 amendment state, “if the examining party believes that certain officials who have not testified pursuant to this subdivision have added information, he [or she] may depose them.” Fed.R.Civ.P. 30 (1970 Advisory Committee Notes). Thus, a party wishing to depose a “specific officer or agent of a corporation may still obtain it and is not required to allow the corporation to decide for itself whose testimony the other party may have.” One Parcel of Real Estate at 5860 N. Bay Rd., Miami Beach, Fla., 121 F.R.D. at 440.

         Here, Defendants have moved to quash Equalia's deposition notice for Avetik because he allegedly is a non-party to this action. But despite this unsubstantiated claim, at Arthur's deposition on February 17, 2017, Arthur testified to numerous facts that demonstrate Avetik is not only a Kushgo employee, but a managing agent and officer with jurisdictional information. As such, a certified copy of Arthur's deposition transcript is pertinent to Equalia's opposition to Defendants' Emergency Motion. But Equalia has been informed that a certified copy of Arthur's deposition transcript is not available to support Equalia's opposition until February 27, 2017. Andara Decl. ¶29. Consequently, good cause exists under Local Rule IA-6-1 for this Court to extend the date for Equalia to file its opposition to Kushgo's Emergency Motion until after it receives a certified transcript of Arthur's deposition.

         B.THIS COURT SHOULD EXTEND THE DATE FOR EQUALIA TO RESPOND TO DEFENDANTS' EMERGENCY MOTION BECAUSE EQUALIA WILL SUFFER PREJUDICE.

         Under Local Rule 7-4, it is the policy of this Court to discourage the use of emergency motions. See L.R. 7-4(b) (“Emergency motions should be rare.”). This is because the filing of emergency motions creates numerous problems for the opposing party and the court resolving them. Painter v. Atwood, No. 2:12-CV-01215-JCM, 2014 WL 6871750, at *1 (D. Nev. Nov. 25, 2014). As such, a Court retains the discretion to deny any matter submitted as an “‘emergency' motion when, in fact, there is no emergency. Id.

         Here, Defendants' insistence to resort to filing emergency motions consistently when no emergency is present has created numerous issues for Equalia that will cause prejudice if an extension is not granted. First, there was absolutely no emergency facing Defendants to justify them filing their motion on an emergency basis. Equalia has noticed Avetik's deposition for March 7, 2017. Therefore, Defendants had until March 7, 2017 to file any motion for a protective order, which would have precluded Equalia from conducting the deposition until this Court rendered an order on that motion. Moreover, if Defendants had regularly noticed their Emergency Motion, Equalia's response would not have been due until March 7, 2017. L.R. 7-2(b). Thus, a regularly noticed motion would also have provided Equalia sufficient time to obtain Arthur's deposition transcript. Additionally, Defendants' motion would have been fully briefed before this Court by March 14, 2017, creating no procedural issues because jurisdictional discovery does not ...


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