Preview
FILED
DALLAS COUNTY
1/24/2020 2:35PM
FELICIA PITRE
DISTRICT CLERK
Margaret Thomas
CAUSE N0. DC-18-06656
MICHAEL KELLY AND § IN THE DISTRICT COURT OF
iOT BROADBAND, LLC, §
§
Plaintiffs, §
§
V. § DALLAS COUNTY, TEXAS
§
JACK SCOTT §
§
Defendant. §
§ 1018T JUDICIAL DISTRICT
MOTION T0 EXTEND DISCOVERY DEADLINE
AND MOTION TO COMPEL DEPOSITION OF JACK SCOTT
COMES NOW Plaintiffs Michael Kelly (“Kelly”) and iOT Broadband, LLC (“iOT”)
(collectively, “P1aintiffs”) and files this Motion t0 Extend Discovery Deadline and Motion to
Compel and in support thereof, would respectfully show the Court as follows:
I.
FACTUAL BACKGROUND
This case is currently set for non—jury trial on February 25, 2020. Itwas originally filed
on May 22, 2018, as a Level 2 Discovery case under Texas Rule 0f Civil Procedure 190.3. After
some initial motions regarding the pleadings, discovery commenced With Requests for
Disclosure, with the first responses filed (after agreed upon extensions) on September 7, 2018.
Under Rule 190.3, discovery in the matter should have been completed nine months later, 0r by
approximately June 7, 2019.
Plaintiffs have tried many times to get Defendant Scott’s deposition. First, Plaintiffs
noticed the deposition 0f Spindle, Inc.’s corporate representative, which would have been Scott,
for January 22, 2019. That Notice was quashed by operation 0f Rule 1994. When Defendants
MOTION TO EXTEND DISCOVERY DEADLINE and T0 COMPEL Page 1
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file a Motion to Quash. In that Motion, Defendants offered the date of February 28, 2019. So,
on February 5, 2019, Plaintiffs re-noticed the corporate representative deposition for the agreed
upon date of February 28, 2019. Spindle unilaterally cancelled this deposition on February 26,
2019, stating by email simply that n0 one would be appearing for the deposition. Plaintiffs filed
a Motion t0 Compel 0n March 16, 2019, t0 force the deposition to g0 forward. Spindle, Inc,
filed for bankruptcy to again avoid the deposition on or about March 25, 2019.
Once Spindle declared bankruptcy, on April 5, 2019, Plaintiffs noticed Scott’s individual
deposition to take place 0n April 25, 2019. Scott filed a Motion to Quash that deposition 0n the
grounds that itshould be stayed pending the resolution of Spindle’s bankruptcy. Plaintiffs filed a
Motion to Compel the deposition, which this Court granted on May 23, 2019. The Court
instructed the parties t0 confer 0n a mutually convenient date.
Following that, the parties sought a continuance so that they could pursue certain
remedies in the Spindle bankruptcy, including a possible settlement in this matter. The case was
reset from the August 6, 2019, trial docket and moved to the current setting.
II.
ARUGMENT
Scott is again refusing to appear for a deposition, this time on the grounds that the
discovery deadline has passed. In fairness, Plaintiffs have not actively sought t0 force Scott’s
deposition for the past few months. After the May 23, 2019, hearing (which was itself 10
business days prior to the initial close of discovery), Plaintiffs and Scott turned to pending
deadline in the bankruptcy proceeding, and settlement discussions began anew. The parties
reached the framework 0f settlement that was contingent upon Scott taking a number 0f actions,
which Plaintiffs and Scott knew would take some time to achieve. For example, part 0f the
settlement terms would have required Scott t0 settle individual debts and claims within the
MOTION TO EXTEND DISCOVERY DEADLINE and T0 COMPEL Page 2
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bankruptcy. Nonetheless, it appeared for the last several months that the parties would be able to
settle this lawsuit in the confines 0f the federal court bankruptcy proceeding. Plaintiffs were
assured on numerous occasions that Scott was making progress toward achieving the
settlement’s terms. As a result of Scott’s assurances regarding the imminence of a settlement
Plaintiff sought t0 achieve judicial efficiencies by not proceeding with Mr. Scott’s deposition.
Now that the settlement has fallen through, Scott is trying to hide behind the failed settlement to
again avoid his deposition, consistent With the pattern of behavior he has exhibited throughout
these proceedings. Unfortunately, that settlement fell through, and Plaintiffs now must pursue
their claims in this matter.
There is ample time to complete a single deposition before the February 25, 2020, trial
date. Plaintiff has offered to present a Witness on its behalf as well. N0 prejudice would result t0
either side by allowing a limited amount of discovery before the trial, which will result in a more
streamlined tn'alpresentation and avoid wasting the Court’s time in the bench trial. We estimate
that it may save a day 0f trial time if the primary parties are deposed before the trial.
III.
MOTION FOR CONTINUANCE IN THE ALTERNATIVE
For the foregoing reasons, Plaintiffs respectfully request an extension 0f the discovery
deadline to afford the parties to take one deposition each, as soon as they can be scheduled. In
the alternative, Plaintiffs seek a brief continuance of the trial setting. These extensions are being
sought not for purposes of delay, but so that justice may be served.
WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully request that this
Motion be granted, that Scott’s deposition be allowed t0 g0 forward, and for allother appropriate
relief as the Court deems just.
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Respectfully submitted,
/s/Ashlev T.Kisner
ASHLEY T. KISNER
State Bar N0. 00791783
JOHN O’CONNOR
Texas State Bar No. 24060350
CLARK HILL STRASBURGER
901 Main Street, Suite 6000
Dallas, Texas 75202
(214) 651-4300
(214) 651-4330 (Fax)
ashlev.kisner@clarkhillstrasburger.com
iohn.oconnor@clarkhillstrasburger.com
ATTORNEYS FOR PLAINTIFFS
MICHAEL KELLY and iOT BROADBAND,
LLC
CERTIFICATE OF CONFERENCE
The undersigned counsel certifies that on the 22nd day of January, 2020, counsel for
Plaintiffs conferred with counsel for Defendant and counsel for Defendant opposes this Motion.
Accordingly, it ispresented the Court for consideration.
/s/Ashlev T.Kisner
ASHLEY T. KISNER
CERTIFICATE 0F SERVICE
The undersigned counsel certifies that on the 24th day of January, 2020, a true and
correct copy of the foregoing was served on all known counsel in accordance With the Texas
Rules 0f Civil Procedure.
/s/Ashlev T.Kisner
ASHLEY T. KISNER
MOTION TO EXTEND DISCOVERY DEADLINE and T0 COMPEL Page 4
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Preview
FILED DALLAS COUNTY 1/24/2020 2:35PM FELICIA PITRE DISTRICT CLERK Margaret Thomas CAUSE N0. DC-18-06656 MICHAEL KELLY AND § IN THE DISTRICT COURT OF iOT BROADBAND, LLC, § § Plaintiffs, § § V. § DALLAS COUNTY, TEXAS § JACK SCOTT § § Defendant. § § 1018T JUDICIAL DISTRICT MOTION T0 EXTEND DISCOVERY DEADLINE AND MOTION TO COMPEL DEPOSITION OF JACK SCOTT COMES NOW Plaintiffs Michael Kelly (“Kelly”) and iOT Broadband, LLC (“iOT”) (collectively, “P1aintiffs”) and files this Motion t0 Extend Discovery Deadline and Motion to Compel and in support thereof, would respectfully show the Court as follows: I. FACTUAL BACKGROUND This case is currently set for non—jury trial on February 25, 2020. Itwas originally filed on May 22, 2018, as a Level 2 Discovery case under Texas Rule 0f Civil Procedure 190.3. After some initial motions regarding the pleadings, discovery commenced With Requests for Disclosure, with the first responses filed (after agreed upon extensions) on September 7, 2018. Under Rule 190.3, discovery in the matter should have been completed nine months later, 0r by approximately June 7, 2019. Plaintiffs have tried many times to get Defendant Scott’s deposition. First, Plaintiffs noticed the deposition 0f Spindle, Inc.’s corporate representative, which would have been Scott, for January 22, 2019. That Notice was quashed by operation 0f Rule 1994. When Defendants MOTION TO EXTEND DISCOVERY DEADLINE and T0 COMPEL Page 1 Legal\C7471\BOl634\4834-5826-8082.V1-1/24/20 file a Motion to Quash. In that Motion, Defendants offered the date of February 28, 2019. So, on February 5, 2019, Plaintiffs re-noticed the corporate representative deposition for the agreed upon date of February 28, 2019. Spindle unilaterally cancelled this deposition on February 26, 2019, stating by email simply that n0 one would be appearing for the deposition. Plaintiffs filed a Motion t0 Compel 0n March 16, 2019, t0 force the deposition to g0 forward. Spindle, Inc, filed for bankruptcy to again avoid the deposition on or about March 25, 2019. Once Spindle declared bankruptcy, on April 5, 2019, Plaintiffs noticed Scott’s individual deposition to take place 0n April 25, 2019. Scott filed a Motion to Quash that deposition 0n the grounds that itshould be stayed pending the resolution of Spindle’s bankruptcy. Plaintiffs filed a Motion to Compel the deposition, which this Court granted on May 23, 2019. The Court instructed the parties t0 confer 0n a mutually convenient date. Following that, the parties sought a continuance so that they could pursue certain remedies in the Spindle bankruptcy, including a possible settlement in this matter. The case was reset from the August 6, 2019, trial docket and moved to the current setting. II. ARUGMENT Scott is again refusing to appear for a deposition, this time on the grounds that the discovery deadline has passed. In fairness, Plaintiffs have not actively sought t0 force Scott’s deposition for the past few months. After the May 23, 2019, hearing (which was itself 10 business days prior to the initial close of discovery), Plaintiffs and Scott turned to pending deadline in the bankruptcy proceeding, and settlement discussions began anew. The parties reached the framework 0f settlement that was contingent upon Scott taking a number 0f actions, which Plaintiffs and Scott knew would take some time to achieve. For example, part 0f the settlement terms would have required Scott t0 settle individual debts and claims within the MOTION TO EXTEND DISCOVERY DEADLINE and T0 COMPEL Page 2 Legal\C7471\BOl634\4834-5826-8082.V1-1/24/20 bankruptcy. Nonetheless, it appeared for the last several months that the parties would be able to settle this lawsuit in the confines 0f the federal court bankruptcy proceeding. Plaintiffs were assured on numerous occasions that Scott was making progress toward achieving the settlement’s terms. As a result of Scott’s assurances regarding the imminence of a settlement Plaintiff sought t0 achieve judicial efficiencies by not proceeding with Mr. Scott’s deposition. Now that the settlement has fallen through, Scott is trying to hide behind the failed settlement to again avoid his deposition, consistent With the pattern of behavior he has exhibited throughout these proceedings. Unfortunately, that settlement fell through, and Plaintiffs now must pursue their claims in this matter. There is ample time to complete a single deposition before the February 25, 2020, trial date. Plaintiff has offered to present a Witness on its behalf as well. N0 prejudice would result t0 either side by allowing a limited amount of discovery before the trial, which will result in a more streamlined tn'alpresentation and avoid wasting the Court’s time in the bench trial. We estimate that it may save a day 0f trial time if the primary parties are deposed before the trial. III. MOTION FOR CONTINUANCE IN THE ALTERNATIVE For the foregoing reasons, Plaintiffs respectfully request an extension 0f the discovery deadline to afford the parties to take one deposition each, as soon as they can be scheduled. In the alternative, Plaintiffs seek a brief continuance of the trial setting. These extensions are being sought not for purposes of delay, but so that justice may be served. WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully request that this Motion be granted, that Scott’s deposition be allowed t0 g0 forward, and for allother appropriate relief as the Court deems just. MOTION TO EXTEND DISCOVERY DEADLINE and T0 COMPEL Page 3 Legal\C7471\BOl634\4834-5826-8082.V1-1/24/20 Respectfully submitted, /s/Ashlev T.Kisner ASHLEY T. KISNER State Bar N0. 00791783 JOHN O’CONNOR Texas State Bar No. 24060350 CLARK HILL STRASBURGER 901 Main Street, Suite 6000 Dallas, Texas 75202 (214) 651-4300 (214) 651-4330 (Fax) ashlev.kisner@clarkhillstrasburger.com iohn.oconnor@clarkhillstrasburger.com ATTORNEYS FOR PLAINTIFFS MICHAEL KELLY and iOT BROADBAND, LLC CERTIFICATE OF CONFERENCE The undersigned counsel certifies that on the 22nd day of January, 2020, counsel for Plaintiffs conferred with counsel for Defendant and counsel for Defendant opposes this Motion. Accordingly, it ispresented the Court for consideration. /s/Ashlev T.Kisner ASHLEY T. KISNER CERTIFICATE 0F SERVICE The undersigned counsel certifies that on the 24th day of January, 2020, a true and correct copy of the foregoing was served on all known counsel in accordance With the Texas Rules 0f Civil Procedure. /s/Ashlev T.Kisner ASHLEY T. KISNER MOTION TO EXTEND DISCOVERY DEADLINE and T0 COMPEL Page 4 Legal\C7471\BOl634\4834-5826-8082.V1-1/24/20