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FILED
DALLAS COUNTY
8/1/2018 3:18 PM
FELICIA PITRE
DISTRICT CLERK
NO. DC-17-11360
SCRAPSOURCE, LLC, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § DALLAS COUNTY, TEXAS
§
JASON WOLFF, MITCHELL §
WOLFF, and FORTIS METAL §
MANAGEMENT, LLC, §
§
Defendants. § 192ND JUDICIAL DISTRICT
PLAINTIFF’S FIRST MOTION FOR CONTINUANCE
Plaintiff ScrapSource, LLC (“ScrapSource”) files this First Motion for Continuance
(“Motion”) and states:
1. ScrapSource filed the above-styled lawsuit on August 31, 2017, pleading causes
of action for breach of the “Second Settlement Agreement” and, alternatively, for breach of the
“Original Settlement Agreement,” as those terms are defined in ScrapSource’s Original
Petition. Defendants filed a general denial and pleaded certain equitable defenses.
2. The lawsuit originally was assigned to the 14th Judicial District Court, but was
transferred to this Court because the lawsuit is so related to the prior suit in this Court which
ScrapSource sued Defendants for various causes of action arising out of Defendant Jason
Wolff’s violation of the terms of a non-compete agreement between himself and ScrapSource,
his former employer. The Original Settlement Agreement resolved the First Lawsuit.
3. On December 4, 2017, the Court set this matter for trial on August 27, 2018.
The Parties have conducted written discovery, Defendants deposed Larry Olschwanger, the
principal of ScrapSource, and the Parties filed various dispositive and non-dispositive motions,
all of which have now been determined.
PLAINTIFF’S FIRST MOTION FOR CONTINUANCE PAGE 1 OF 4
4. As of the date of this Motion, this lawsuit appears to be the 12h-oldest of the
cases set for trial on the Court’s August 27 docket, and the Court has several motions set for
hearing that afternoon. It therefore is unclear to ScrapSource whether there is a realistic
possibility that the case will be reached. ScrapSource must of course presume that the case will
be called for trial and as a result, must respectfully request a brief continuance. Olschwanger
will serve as ScrapSource’s representative at trial and is a key witness identified by all Parties.
As set forth in the affidavit attached hereto as Exhibit A (pages 5-6), Olschwanger will be on a
previously-scheduled vacation with his family out of state from August 27 through 31, and is
unable to attend trial on August 27. As he has also testified, he would be available to attend
trial as soon as Monday, September 3.
5. The Court is vested with broad authority to continue a trial setting, and may
grant such a request “for sufficient cause supported by affidavit, or by consent of the parties, or
by operation of law.” Tex. R. Civ. P. 251. The Dallas County local rules provide that “after a
case has been on file for one year, it shall not be reset for a party except on written motion for
continuance, personally approved by the client in writing, and granted by the Court.” Dallas
County L.R. 3.01(b). The case has been on file for slightly less than one year; nevertheless, as
evidenced by the affidavit attached hereto, ScrapSource (through its president, Olschwanger)
consents to the continuance. The grant or denial of a motion for continuance is within a trial
court’s sound discretion. Castro v. Moore, No. 05-97-02137-CV, 2000 WL 116060, *1 (Tex.
App.—Dallas 2000, no pet.) (citing State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865
(Tex. 1988)). As a party to the litigation, ScrapSource has “the valuable right to be present at
[the] trial for reasons that are obvious,” Burke v. Scott, 410 S.W.2d 826, 829 (Tex. Civ. App.—
Austin 1967, no writ). See, e.g., Ulmer v. Mackey, 242 S.W.2d 659, 681 (Tex. Civ. App.—Fort
PLAINTIFF’S FIRST MOTION FOR CONTINUANCE PAGE 2 OF 4
Worth 1951, writ refd n.r.e.) (same). ScrapSource cannot appear except through Olschwanger
In addition, he is an essential Witness.
For the foregoing reasons, ScrapSource respectfully requests that the Court grant the
Motion, remove the case from the August 27 trial docket and re-set it for trial on the first
available date mutually convenient for the Court, the Parties, and their counsel on 0r after
Monday, September 3, and grant all other relief, general 0r special, at law or in equity, to
which ScrapSource may be justly entitled.
Respectfully submitted,
By: /s/J0hn M. Barcus
GARY D. EISENSTAT
Texas State Bar N0. 06503200
gary.eisenstat@ogletree.com
JOHN M. BARCUS
Texas State Bar No. 24036815
john.barcus@ogletree.com
OGLETREE, DEAKINs, NASH, SMOAK & STEWART, P.C.
500 Preston Commons West
81 17 Preston Road
Dallas, Texas 75225
(214) 987-3800
(214) 987-3927 (Facsimile)
ATTORNEYS FOR PLAINTIFF
SCRAPSOURCE, LLC
PLAINTIFF’S FIRST MOTION FOR CONTINUANCE PAGE 3 OF 4
CERTIFICATE OF CONFERENCE
This is to certify that on this 31st day of July 2018, I conferred with Bill Pedersen,
counsel for Defendants. Mr. Pedersen informed me that Defendants are opposed to the
requested relief.
/s/ John M. Barcus
JOHN M. BARCUS
CERTIFICATE OF SERVICE
This is to certify that on this 1st day of August 2018, a true and correct copy of the
above and foregoing was served electronically on all counsel of record.
/s/ John M. Barcus
JOHN M. BARCUS
35018245.2
PLAINTIFF’S FIRST MOTION FOR CONTINUANCE PAGE 4 OF 4
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FILED DALLAS COUNTY 8/1/2018 3:18 PM FELICIA PITRE DISTRICT CLERK NO. DC-17-11360 SCRAPSOURCE, LLC, § IN THE DISTRICT COURT § Plaintiff, § § v. § DALLAS COUNTY, TEXAS § JASON WOLFF, MITCHELL § WOLFF, and FORTIS METAL § MANAGEMENT, LLC, § § Defendants. § 192ND JUDICIAL DISTRICT PLAINTIFF’S FIRST MOTION FOR CONTINUANCE Plaintiff ScrapSource, LLC (“ScrapSource”) files this First Motion for Continuance (“Motion”) and states: 1. ScrapSource filed the above-styled lawsuit on August 31, 2017, pleading causes of action for breach of the “Second Settlement Agreement” and, alternatively, for breach of the “Original Settlement Agreement,” as those terms are defined in ScrapSource’s Original Petition. Defendants filed a general denial and pleaded certain equitable defenses. 2. The lawsuit originally was assigned to the 14th Judicial District Court, but was transferred to this Court because the lawsuit is so related to the prior suit in this Court which ScrapSource sued Defendants for various causes of action arising out of Defendant Jason Wolff’s violation of the terms of a non-compete agreement between himself and ScrapSource, his former employer. The Original Settlement Agreement resolved the First Lawsuit. 3. On December 4, 2017, the Court set this matter for trial on August 27, 2018. The Parties have conducted written discovery, Defendants deposed Larry Olschwanger, the principal of ScrapSource, and the Parties filed various dispositive and non-dispositive motions, all of which have now been determined. PLAINTIFF’S FIRST MOTION FOR CONTINUANCE PAGE 1 OF 4 4. As of the date of this Motion, this lawsuit appears to be the 12h-oldest of the cases set for trial on the Court’s August 27 docket, and the Court has several motions set for hearing that afternoon. It therefore is unclear to ScrapSource whether there is a realistic possibility that the case will be reached. ScrapSource must of course presume that the case will be called for trial and as a result, must respectfully request a brief continuance. Olschwanger will serve as ScrapSource’s representative at trial and is a key witness identified by all Parties. As set forth in the affidavit attached hereto as Exhibit A (pages 5-6), Olschwanger will be on a previously-scheduled vacation with his family out of state from August 27 through 31, and is unable to attend trial on August 27. As he has also testified, he would be available to attend trial as soon as Monday, September 3. 5. The Court is vested with broad authority to continue a trial setting, and may grant such a request “for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.” Tex. R. Civ. P. 251. The Dallas County local rules provide that “after a case has been on file for one year, it shall not be reset for a party except on written motion for continuance, personally approved by the client in writing, and granted by the Court.” Dallas County L.R. 3.01(b). The case has been on file for slightly less than one year; nevertheless, as evidenced by the affidavit attached hereto, ScrapSource (through its president, Olschwanger) consents to the continuance. The grant or denial of a motion for continuance is within a trial court’s sound discretion. Castro v. Moore, No. 05-97-02137-CV, 2000 WL 116060, *1 (Tex. App.—Dallas 2000, no pet.) (citing State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988)). As a party to the litigation, ScrapSource has “the valuable right to be present at [the] trial for reasons that are obvious,” Burke v. Scott, 410 S.W.2d 826, 829 (Tex. Civ. App.— Austin 1967, no writ). See, e.g., Ulmer v. Mackey, 242 S.W.2d 659, 681 (Tex. Civ. App.—Fort PLAINTIFF’S FIRST MOTION FOR CONTINUANCE PAGE 2 OF 4 Worth 1951, writ refd n.r.e.) (same). ScrapSource cannot appear except through Olschwanger In addition, he is an essential Witness. For the foregoing reasons, ScrapSource respectfully requests that the Court grant the Motion, remove the case from the August 27 trial docket and re-set it for trial on the first available date mutually convenient for the Court, the Parties, and their counsel on 0r after Monday, September 3, and grant all other relief, general 0r special, at law or in equity, to which ScrapSource may be justly entitled. Respectfully submitted, By: /s/J0hn M. Barcus GARY D. EISENSTAT Texas State Bar N0. 06503200 gary.eisenstat@ogletree.com JOHN M. BARCUS Texas State Bar No. 24036815 john.barcus@ogletree.com OGLETREE, DEAKINs, NASH, SMOAK & STEWART, P.C. 500 Preston Commons West 81 17 Preston Road Dallas, Texas 75225 (214) 987-3800 (214) 987-3927 (Facsimile) ATTORNEYS FOR PLAINTIFF SCRAPSOURCE, LLC PLAINTIFF’S FIRST MOTION FOR CONTINUANCE PAGE 3 OF 4 CERTIFICATE OF CONFERENCE This is to certify that on this 31st day of July 2018, I conferred with Bill Pedersen, counsel for Defendants. Mr. Pedersen informed me that Defendants are opposed to the requested relief. /s/ John M. Barcus JOHN M. BARCUS CERTIFICATE OF SERVICE This is to certify that on this 1st day of August 2018, a true and correct copy of the above and foregoing was served electronically on all counsel of record. /s/ John M. Barcus JOHN M. BARCUS 35018245.2 PLAINTIFF’S FIRST MOTION FOR CONTINUANCE PAGE 4 OF 4