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Bartech Systems International, Inc. v. Mobile Simple Solutions, Inc.

United States District Court, D. Nevada

April 6, 2018

BARTECH SYSTEMS INTERNATIONAL, INC., a Delaware corporation, Plaintiff,
v.
MOBILE SIMPLE SOLUTIONS, INC., a Delaware corporation, MOBILE SIMPLE SOLUTIONS IAS, INC., a Canadian corporation, GEM SA, a Belgian corporation, VINCENT TESSIER, an individual, CHRISTELLE PIGEAT, an individual, Defendants. MOBILE SIMPLE SOLUTIONS, INC., a Delaware corporation, VINCENT TESSIER, an individual, CHRISTELLE PIGEAT, an individual, GEM SA, a Belgian corporation, Counterclaimants,
v.
BARTECH SYSTEMS INTERNATIONAL, INC., a Delaware corporation, Counter-defendant.

          Michael R. Kealy, Ashley C. Nikkel, PARSONS BEHLE & LATIMER, Gregory T. Lawrence, Esq., Kyle S. Kushner, Esq, Conti Fenn & Lawrence LLC, Attorneys for Plaintiff/Counter-Defendant BARTECH SYSTEMS INTERNATIONAL, INC.

          GREENE INFUSO, LLP, Michael V. Infuso, Esq., Keith W. Barlow, Esq., Attorneys for Defendant/Counterclaimant GEM SA.

          STIPULATION AND ORDER FOR EXTENSION OF JOINT PROPOSED PRETRIAL ORDER DEADLINE

         Pursuant to the provisions of Federal Rule of Civil Procedure 6 and Local Rules IA 6-1, 7-1, and 26-4, Plaintiff and Counter-defendant Bartech Systems International, Inc. (“Bartech”) and Defendant and Counterclaimant GEM SA (“GEM”), by and through their attorneys, hereby stipulate and agree that an extension by sixty (60) days to June 11, 2018 of the deadline for submission of the proposed Joint Pretrial Order presently set for April 12, 2018 is necessary for good cause shown. This is the ninth request for an extension of a scheduled deadline. The parties agree that this will be the final extension of the Joint Pretrial Order deadline sought by either Bartech or GEM.

         STIPULATION

         GEM and Bartech jointly agree that an extension by sixty (60) days to June 11, 2018 of the deadline for submission of the proposed Joint Pretrial Order presently set for April 12, 2018 is necessary for good cause shown. A Motion to extend a deadline set by a Scheduling Order must be supported by a showing of “good cause.” Fed.R.Civ.P. 6(b)(1)(A); see also LR 26-4. This Court's Order set the deadline for submission of the proposed Joint Pretrial Order for April 12, 2018. See Order (ECF No. 459 at 1). The parties agree that the current deadline cannot reasonably be met due to recent developments that have arisen from discovery previously authorized by this Court, including the deposition of GEM's corporate designee and the production by GEM of additional documents pursuant to this Court's Order. See Order (ECF No. 459 at 22); Min. of Proc. (ECF No. 423). Additionally, the parties further agree that the current deadline cannot reasonably be met because the parties must meet and confer with Defendant Tessier regarding completion of the Joint Pretrial Order.

         On February 12, 2018, this Court directed GEM to, among other things:

[P]roduce documents in response to Plaintiff's Requests for Production 7, 15 (for the time period of September 1, 2016 to the present), 16 (excluding communications between Defendant, Defendants Mobile Canada and Pigeat, and GBV), and 20 (for the time period of August 1, 2016 - November 30, 2016), no later than March 12, 2018.

Order (ECF No. 452 at 22). On February 27, 2018, Bartech deposed GEM's corporate designee without the foregoing documents. On March 12, 2018, GEM produced to Bartech pursuant to this Court's Order over 500 pages of discovery, including certain documents related to GEM's finances.

         On February 27, 2018, Bartech learned during the deposition of GEM's corporate designee that GEM transferred on December 23, 2017, among other things, the ABreez software to a wholly-owned French subsidiary named Mobile Simple Software Services (France) (“Mobile France”).[1]Since that time, the parties have worked diligently to resolve issues attendant to that transfer without Court intervention. GEM produced on March 5 and 7, 2018 certain documents related to GEM's transfer of ABreez to Mobile France. Bartech anticipates filing imminently a Consent Motion for Leave to File the Third Amended Complaint and a Third Amended Complaint to add Mobile Simple Software Services (France) as a defendant in these proceedings to ensure the enforceability of any judgment and injunctive relief subsequently obtained in this matter (“Consent Motion”). The parties agree that said Consent Motion will resolve any issues arising from the transfer of ABreez to Mobile France.

         Bartech requested a second deposition of GEM's corporate designee due to GEM's production of documents related to the transfer of ABreez to Mobile France and those produced pursuant to this Court's Order. GEM agreed to that deposition. The deposition will be held as soon as April 13, 2018. In addition, Bartech intends to supplement the previously produced report of its testifying damages expert, R. Christopher Rosenthal, based upon the documents recently produced by GEM and the second deposition of GEM's corporate designee on those documents. Bartech has offered to make Mr. Rosenthal available to GEM for a deposition in light of that supplemental report. GEM reserves the right to challenge or object to any supplemental report provided by Mr. Rosenthal.

         The foregoing developments that have arisen from discovery previously authorized by this Court should be resolved before the parties are positioned to file the proposed Joint Pretrial Order. That is because the proposed Joint Pretrial Order requires the parties to, among other things, identify specific portions of deposition transcripts to be offered at trial. See LR 16-3(b)(10). The parties are unable to designate specific portions of deposition transcripts to be offered at trial where certain depositions remain to be taken.

         Separately, the parties agree that good cause exists for an extension by 60 days of the deadline to file the Joint Pretrial Order due to developments in Defendant Vincent Tessier's Chapter 7 bankruptcy proceeding (In re Tessier, Case No. 17-15946-led). Importantly, the Bankruptcy Court has scheduled a hearing for April 5, 2018 on the scope of a proposed Order that lifts the automatic bankruptcy stay as to Defendant Tessier. That means that Defendant Tessier will become active in this litigation as soon as April 5, 2018. The parties agree that a meet and confer with Defendant Tessier regarding completion of the Joint Pretrial Order (i.e., the exchange of exhibits and objections) is necessary. And that meet and confer cannot happen until the bankruptcy stay is lifted.

         In addition, Bartech has filed against Defendant Tessier an adversary proceeding captioned Bartech Systems International, Inc. v. Vincent Tessier, Adversary Proceeding No.: 2:18-ap-1009 (the “Adversary Proceeding”). Bartech has also filed a Motion to Withdraw the reference of that Adversary Proceeding to this Court. That Motion to Withdraw the Reference remains pending before the Chief Judge of this Court in Case No. 2:18-cv-00212-GMN. Should that Motion to Withdraw the Reference be granted and the Adversary Proceeding consolidated with this action, then Bartech will be required to prove its non-dischargeability claims in this case. That will impact, among other portions of the Joint Pretrial Order, statements of contested or material issues of fact or law. See LR 16-3(b)(4)-(7).

         The parties jointly propose the following schedule for completion of the Joint ...


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