Preview
Date Filed 3/2/2023 3:38 PM
Superior Court - Middlesex
Docket Number 2081CV02967
RECEIVED
55
3/2/2023
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
ELIZABETH GRADY FACE FIRST INC.
D/B/A THE ELIZABETH GRADY
COMPANY,
Plaintiff,
Vv. C. A. No. 2018-CV-02967
CYNOSURE, INC., KEVIN THORNAL, AND
BLAKE AHITOW,
Defendants.
JOINT MOTION TO EXTEND TRACKING ORDER DEADLINES
The above captioned parties, by and through their respective undersigned counsel, and
pursuant to Mass. R. Civ. P. 6(b) and Superior Court Standing Order 1-88, jointly move for an
extension of the current tracking order deadlines as set forth below. A proposed Order is attached
herewith at Exhibit A. In further support of this Motion, the parties state as follows:
1 Plaintiff filed suit on December 8, 2020, and this case was assigned to the “Average
Track” pursuant to Standing Order 1-88. The original tracking order deadlines included: (i) a fact
discovery deadline of November 29, 2022; (ii) a deadline of December 29, 2022 for service of
Rule 56 motions; (iii) a deadline of January 30, 2023 for filing Rule 56 motions; and (iv) a deadline
of May 29, 2023 for a final pretrial conference.
FW
2. On October 3, 2022, to provide the parties with additional time to complete
document and deposition discovery, the Court granted the parties’ joint motion and extended the
tracking order deadlines as follows: (i) a fact discovery deadline of March 31, 2023; (ii) a deadline
Date Filed 3/2/2023 3:38 PM
Superior Court - Middlesex
Docket Number 2081CV02967
of June 23, 2023 for service of Rule 56 motions; (iii) a deadline of August 18, 2023 for filing Rule
56 motions; and (iv) a deadline of September 2023 for a final pretrial conference.
3 On January 4, 2023, following a mediation, the parties executed a Memorandum of
Understanding (“MOU”) concerning settlement of this action. While disputes subsequently arose
between the parties concerning the MOU, the parties are now working constructively towards
resolving those remaining issues and finalizing resolution of this case. The parties agree that
additional time is needed to complete this process.
4 The parties accordingly request an additional approximately 90-day extension for
all remaining deadlines. No party will be prejudiced by the extended deadlines, as the additional
time will conserve resources and allow the parties to focus on achieving final resolution of this
matter.
5 Accordingly, the parties propose that the Court adopt the following amended
tracking order deadlines:
@ close of fact discovery by June 30, 2023;
(ii) expert disclosures and discovery to be completed between June 30, 2023
and September 15, 2023;!
(iii) service of Rule 56 motions to be completed by September 29, 2023;
(iv) service of Rule 56 oppositions to be completed by October 27, 2023;
(vy) filing of Rule 56 motion packages by November 17, 2023;
(vi) final pretrial conference and/or hearing on Rule 56 motions scheduled in or
around late December 2023, or another date convenient for the Court.
' Pursuant to Mass. R. Civ. P. 29, the parties are further stipulating that the form of any expert reports to
be disclosed in this case shall comply with the format requirements set forth in Fed. R. Civ. P. 26(a)(2)(B),
and that all expert work product, communications with counsel, and draft expert reports will be considered
protected work product not subject to discovery. Any rebuttal report is to be solely limited to addressing
opinions set forth in an expert report disclosed by a defendant. The parties further stipulate that upon
disclosure of any expert report, the disclosing party will also propose at least two dates for the expert’s
deposition within the expert discovery period.
Date Filed 3/2/2023 3:38 PM
Superior Court - Middlesex
Docket Number 2081CV02967
A proposed Order is attached hereto at Exhibit A.
WHEREFORE, the parties respectfully request that this Joint Motion be allowed and that
the Court amend the current tracking order deadlines as requested herein.
Respectfully requested,
ELIZABETH GRADY FACE FIRST, INC.
D/B/A THE ELIZABETH GRADY
COMPANY,
By its attorneys,
/s/ Nicholas W. Allen
William A. Zucker, Esq., BBO No. 541240
David Ianelli, Esq., BBO No. 567274
Nicholas W. Allen, Esq., BBO No. 663409
McCarter & English, LLP
265 Franklin Street
Boston, MA 02110-3113
wzucker@mccarter.com
dianelli@mccarter.com
nallen@mcecarter.com
617.449.6500
CYNOSURE, LLC,
By its attorneys,
/s/ Michael J. Pineault
Michael Pineault (BBO No. 555314)
ANDERSON & KREIGER LLP
50 Milk Street, 21st Floor
Boston, MA 02109
mpineault@andersonkreiger.com
T: +1 617.621.6578
F: +1 617.621.6619
Daniel S. Pariser (pro hac vice)
Jocelyn A. Wiesner (pro hac vic)
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, D.C. 20001
Date Filed 3/2/2023 3:38 PM
Superior Court - Middlesex
Docket Number 2081CV02967
daniel.pariser@arnoldporter.com
jocelyn.wiesner@arnoldporter.com
T: +1 202.942.5000
F: +1 202.942.5999
- AND -
KEVIN THORNAL AND BLAKE
AHITOW,
By their attorneys,
/s/ Daniel Patrick Tigh
Daniel Patrick Tighe, Esq. (BBO No.
556583)
Peter Erich Gelhaar, Esq. (BBO No.
188310)
DONNELLY, CONROY & GELHAAR, LLP
260 Franklin Street, Suite 1600
Boston, MA 02110
T: +1 617.720.2880
dpt@deglaw.com
peg@deglaw.com
Dated: March 2, 2023
Date Filed 3/2/2023 3:38 PM
Superior Court - Middlesex
Docket Number 2081CV02967
EXHIBIT A
Date Filed 3/2/2023 3:38 PM
Superior Court - Middlesex
Docket Number 2081CV02967
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
ELIZABETH GRADY FACE FIRST INC.
D/B/A THE ELIZABETH GRADY
COMPANY,
Plaintiff,
Vv. C. A. No. 2018-CV-02967
CYNOSURE, INC., KEVIN THORNAL, AND
BLAKE AHITOW,
Defendants.
SCHEDULING ORDER
The parties having filed a Joint Motion seeking to amend the current tracking order
deadlines, and after consideration of the Motion, the Court hereby enters the following Scheduling
Order:
STAGES OF LITIGATION
Fact discovery completed by 6/30/2023
Plaintiff's expert reports 6/30/2023
Defendants’ expert reports 7/28/2023
Plaintiff's rebuttal reports (if any) 8/25/2023
Expert discovery, including depositions, 9/15/2023
completed
All motions under Mass. R. Civ. P. 56 served 9/29/2023
by
All oppositions under Mass. R. Civ. P. 56 10/27/2023
served by
Date Filed 3/2/2023 3:38 PM
Superior Court - Middlesex
Docket Number 2081CV02967
All motions under Mass. R. Civ. P. 56 filed by 11/17/2023
Pretrial Conference/Rule 56 hearing December 2023 or another
date convenient for the
Court
Date:
Justice of the Superior Court
Date Filed 3/2/2023 3:38 PM
Superior Court - Middlesex
Docket Number 2081CV02967
CERTIFICATE OF SERVICE
I, Michael J. Pineault, certify that on March 2, 2023, I caused a true copy of the foregoing
document to be served by e-mail on the following counsel of record:
William A. Zucker
David Ianelli
Nicholas W. Allen
McCaRTER & ENGLISH, LLP
265 Franklin Street,
Boston, MA 02110-3113
T: +1 617.449.6500
wzucker@mecarter.con
dianelli@mecarter.con
allen@mecarter.com
Peter Gelhaar
Daniel Tighe
DONNELLY, CONROY & GELHAAR, LLP
260 Franklin Street, Suite 1600
T: +1 617.720.2880
eg@dcglaw.com
dpt@dcglaw.com
/s/ Michael J. Pineault
Michael Pineault
Preview
Date Filed 3/2/2023 3:38 PM Superior Court - Middlesex Docket Number 2081CV02967 RECEIVED 55 3/2/2023 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT ELIZABETH GRADY FACE FIRST INC. D/B/A THE ELIZABETH GRADY COMPANY, Plaintiff, Vv. C. A. No. 2018-CV-02967 CYNOSURE, INC., KEVIN THORNAL, AND BLAKE AHITOW, Defendants. JOINT MOTION TO EXTEND TRACKING ORDER DEADLINES The above captioned parties, by and through their respective undersigned counsel, and pursuant to Mass. R. Civ. P. 6(b) and Superior Court Standing Order 1-88, jointly move for an extension of the current tracking order deadlines as set forth below. A proposed Order is attached herewith at Exhibit A. In further support of this Motion, the parties state as follows: 1 Plaintiff filed suit on December 8, 2020, and this case was assigned to the “Average Track” pursuant to Standing Order 1-88. The original tracking order deadlines included: (i) a fact discovery deadline of November 29, 2022; (ii) a deadline of December 29, 2022 for service of Rule 56 motions; (iii) a deadline of January 30, 2023 for filing Rule 56 motions; and (iv) a deadline of May 29, 2023 for a final pretrial conference. FW 2. On October 3, 2022, to provide the parties with additional time to complete document and deposition discovery, the Court granted the parties’ joint motion and extended the tracking order deadlines as follows: (i) a fact discovery deadline of March 31, 2023; (ii) a deadline Date Filed 3/2/2023 3:38 PM Superior Court - Middlesex Docket Number 2081CV02967 of June 23, 2023 for service of Rule 56 motions; (iii) a deadline of August 18, 2023 for filing Rule 56 motions; and (iv) a deadline of September 2023 for a final pretrial conference. 3 On January 4, 2023, following a mediation, the parties executed a Memorandum of Understanding (“MOU”) concerning settlement of this action. While disputes subsequently arose between the parties concerning the MOU, the parties are now working constructively towards resolving those remaining issues and finalizing resolution of this case. The parties agree that additional time is needed to complete this process. 4 The parties accordingly request an additional approximately 90-day extension for all remaining deadlines. No party will be prejudiced by the extended deadlines, as the additional time will conserve resources and allow the parties to focus on achieving final resolution of this matter. 5 Accordingly, the parties propose that the Court adopt the following amended tracking order deadlines: @ close of fact discovery by June 30, 2023; (ii) expert disclosures and discovery to be completed between June 30, 2023 and September 15, 2023;! (iii) service of Rule 56 motions to be completed by September 29, 2023; (iv) service of Rule 56 oppositions to be completed by October 27, 2023; (vy) filing of Rule 56 motion packages by November 17, 2023; (vi) final pretrial conference and/or hearing on Rule 56 motions scheduled in or around late December 2023, or another date convenient for the Court. ' Pursuant to Mass. R. Civ. P. 29, the parties are further stipulating that the form of any expert reports to be disclosed in this case shall comply with the format requirements set forth in Fed. R. Civ. P. 26(a)(2)(B), and that all expert work product, communications with counsel, and draft expert reports will be considered protected work product not subject to discovery. Any rebuttal report is to be solely limited to addressing opinions set forth in an expert report disclosed by a defendant. The parties further stipulate that upon disclosure of any expert report, the disclosing party will also propose at least two dates for the expert’s deposition within the expert discovery period. Date Filed 3/2/2023 3:38 PM Superior Court - Middlesex Docket Number 2081CV02967 A proposed Order is attached hereto at Exhibit A. WHEREFORE, the parties respectfully request that this Joint Motion be allowed and that the Court amend the current tracking order deadlines as requested herein. Respectfully requested, ELIZABETH GRADY FACE FIRST, INC. D/B/A THE ELIZABETH GRADY COMPANY, By its attorneys, /s/ Nicholas W. Allen William A. Zucker, Esq., BBO No. 541240 David Ianelli, Esq., BBO No. 567274 Nicholas W. Allen, Esq., BBO No. 663409 McCarter & English, LLP 265 Franklin Street Boston, MA 02110-3113 wzucker@mccarter.com dianelli@mccarter.com nallen@mcecarter.com 617.449.6500 CYNOSURE, LLC, By its attorneys, /s/ Michael J. Pineault Michael Pineault (BBO No. 555314) ANDERSON & KREIGER LLP 50 Milk Street, 21st Floor Boston, MA 02109 mpineault@andersonkreiger.com T: +1 617.621.6578 F: +1 617.621.6619 Daniel S. Pariser (pro hac vice) Jocelyn A. Wiesner (pro hac vic) ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, D.C. 20001 Date Filed 3/2/2023 3:38 PM Superior Court - Middlesex Docket Number 2081CV02967 daniel.pariser@arnoldporter.com jocelyn.wiesner@arnoldporter.com T: +1 202.942.5000 F: +1 202.942.5999 - AND - KEVIN THORNAL AND BLAKE AHITOW, By their attorneys, /s/ Daniel Patrick Tigh Daniel Patrick Tighe, Esq. (BBO No. 556583) Peter Erich Gelhaar, Esq. (BBO No. 188310) DONNELLY, CONROY & GELHAAR, LLP 260 Franklin Street, Suite 1600 Boston, MA 02110 T: +1 617.720.2880 dpt@deglaw.com peg@deglaw.com Dated: March 2, 2023 Date Filed 3/2/2023 3:38 PM Superior Court - Middlesex Docket Number 2081CV02967 EXHIBIT A Date Filed 3/2/2023 3:38 PM Superior Court - Middlesex Docket Number 2081CV02967 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT ELIZABETH GRADY FACE FIRST INC. D/B/A THE ELIZABETH GRADY COMPANY, Plaintiff, Vv. C. A. No. 2018-CV-02967 CYNOSURE, INC., KEVIN THORNAL, AND BLAKE AHITOW, Defendants. SCHEDULING ORDER The parties having filed a Joint Motion seeking to amend the current tracking order deadlines, and after consideration of the Motion, the Court hereby enters the following Scheduling Order: STAGES OF LITIGATION Fact discovery completed by 6/30/2023 Plaintiff's expert reports 6/30/2023 Defendants’ expert reports 7/28/2023 Plaintiff's rebuttal reports (if any) 8/25/2023 Expert discovery, including depositions, 9/15/2023 completed All motions under Mass. R. Civ. P. 56 served 9/29/2023 by All oppositions under Mass. R. Civ. P. 56 10/27/2023 served by Date Filed 3/2/2023 3:38 PM Superior Court - Middlesex Docket Number 2081CV02967 All motions under Mass. R. Civ. P. 56 filed by 11/17/2023 Pretrial Conference/Rule 56 hearing December 2023 or another date convenient for the Court Date: Justice of the Superior Court Date Filed 3/2/2023 3:38 PM Superior Court - Middlesex Docket Number 2081CV02967 CERTIFICATE OF SERVICE I, Michael J. Pineault, certify that on March 2, 2023, I caused a true copy of the foregoing document to be served by e-mail on the following counsel of record: William A. Zucker David Ianelli Nicholas W. Allen McCaRTER & ENGLISH, LLP 265 Franklin Street, Boston, MA 02110-3113 T: +1 617.449.6500 wzucker@mecarter.con dianelli@mecarter.con allen@mecarter.com Peter Gelhaar Daniel Tighe DONNELLY, CONROY & GELHAAR, LLP 260 Franklin Street, Suite 1600 T: +1 617.720.2880 eg@dcglaw.com dpt@dcglaw.com /s/ Michael J. Pineault Michael Pineault