Preview
Filed
13 April 24 P4:54
Gary Fitzsimmons
District Clerk
Dallas District
CAUSE NO. DC-12-07867
RED MANGO FC, LLC § IN THE DISTRICT COURT
Plaintiff-Counterdefendant,
v
160™ JUDICIAL DISTRICT
HOWARD GROSSER and PHROZEN
ASSETS LLC
Defendant-Counterplaintiff and DALLAS COUNTY, TEXAS
Third-Party Plaintiff
DEFENDANT-COUNTERPLAINTIFF HOWARD GROSSER AND THIRD-PARTY
PLAINTIFF PHROZEN ASSETS, LLC’S UNOPPOSED MOTION FOR
CONTINUANCE
TO THE HONORABLE COURT:
Pursuant to Texas Rules of Civil Procedure 190.5 and 251 and Dallas County Local
Rule 3.01, Defendant-Counterplaintiff and Third-Party Plaintiff Howard Grosser and Phrozen
Assets LLC (“Movant”) hereby file this unopposed motion to continue the trial date in the
above-captioned matter, (currently scheduled to begin July 15, 2013) to allow time for
discovery and to adjust other deadlines as appropriate based on the new trial date.
I ARGUMENT
1 This case has been on file for less than one year. For cases pending less than one
year, Local Rule 3.01 provides that a trial continuance may be granted when counsel for all
parties consent. Here, counsel for all parties have consented to a continuance, as shown by the
proposed agreed order being submitted contemporaneously with this motion.
2. In addition, under Texas Rule of Civil Procedure 190.5, the Court “may modify a
discovery control plan at any time and must do so when the interest of justice requires.” Here,
DEFENDANT-COUNTERPLAINTIFF HOWARD GROSSER AND THIRD-PARTY Page 1
PLAINTIFF PHROZEN ASSETS LLC’S UNOPPOSED MOTION FOR CONTINUANCE
even though the parties have diligently pursued discovery, a continuance is necessary in the
interest of justice to provide sufficient time for the completion of discovery.
3 This case has been the subject of extensive motion practice. At the present time
Grosser has a motion to compel discovery which is scheduled to be heard on May 9, 2013. In
addition, Plaintiff-Counterdefendant Red Mango FC, LLC (“Mango”) filed a motion for
summary judgment, which the court is considering at this time. These factors have made it
impossible for Grosser to conduct depositions to date. By the time these issues have been
resolved there will not be sufficient time for Grosser to receive and analyze the written
discovery, conduct depositions, analyze the results of the depositions and then be ready for trial
on July 15. For the same reasons, Mango has not had the opportunity to depose Grosser.
4 Although Mango disputes it is responsible for any delays, it has consented to
continuing this case and setting a new trial date. Based upon the schedules of all counsel, it is
respectfully requested that this case be set for trial on Monday, December 9, 16 or 2 (in this
preferred order). All dates prior to this time have conflicts with one or more counsel, including
trials and time counsel will be outside the country. It is also requested that all discovery
deadlines be changed commensurate with this new date.
5 Under Texas Rule of Civil Procedure 251, the Court may grant a continuance of a
trial date for sufficient cause, and a trial court has substantial discretion in determining whether
cause exists to grant a continuance, and may take into account the entire procedural history of the
case in making its decision. See Waste Water v. Alpha Finishing & Developing Corp., 874
S.W.2d 940, 942-943 (Tex. App—Houston [14th Dist.] 1994 no writ). Considering that it is
impracticable to try this case on July 15, the Court therefore has good cause to grant a
continuance of the trial.
DEFENDANT-COUNTERPLAINTIFF HOWARD GROSSER AND THIRD-PARTY Page 2
PLAINTIFF PHROZEN ASSETS LLC’S UNOPPOSED MOTION FOR CONTINUANCE
IL. CONCLUSION
For the foregoing reasons, it is respectfully requested that this case be scheduled for trial
on Monday, December 9, 16 or 2 (in this preferred order) and all discovery deadlines be changed
commensurate with this new date.
DEFENDANT-COUNTERPLAINTIFF HOWARD GROSSER AND THIRD-PARTY Page 3
PLAINTIFF PHROZEN ASSETS LLC’S UNOPPOSED MOTION FOR CONTINUANCE
Dated: April 22, 2013
Respectfully submitted,
By: /s/Christopher J. Akin
Christopher J. Akin
Texas State Bar Number 00793237
LYNN TILLOTSON PINKER Cox, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
T: 214.981.3812
F: 214.981.3839
Email: cakin@lynnllp.com
and
Mitchell J. Kassoff
Admitted Pro Hac Vice
Two Foster Court
So. Orange, N.J. 07079-1002
T: 973.762.1776
Email: franchiselawyer@verizon.net
ATTORNEYS FOR DEFENDANT-
COUNTER PLAINTIFF HOWARD
GROSSER AND THIRD-PARTY
PLAINTIFF PHROZEN ASSETS LLC
and
Cheryl Mullin
Texas Bar No. 24037807
Christianne Edlund
Texas Bar No. 24072083
MULLIN Law, P.C.
2425 N. Central Expressway, Suite 200
Richardson, Texas 75080
COUNSEL FOR PLAINTIFF-
COUNTERDEFENDANT
RED MANGO FC LLC
DEFENDANT-COUNTERPLAINTIFF HOWARD GROSSER AND THIRD-PARTY Page 4
PLAINTIFF PHROZEN ASSETS LLC’S UNOPPOSED MOTION FOR CONTINUANCE
CERTIFICATE OF CONFERENCE
Counsel have conferred as to the relief requested in this motion and have agreed to the
relief requested herein (as shown by the proposed agreed order being submitted together with
this motion).
Certified on this date by,
[s[Mitchell J. Kassoff
Mitchell J. Kassoff
CERTIFICATE OF SERVICE
This is to certify that on the 24th day of April, 2013, a true and correct copy of the
foregoing motion was forwarded to Plaintiff's counsel by email (as agreed to by said counsel).
VA ELECTRONIC MAIL
Cheryl Mullin
MULLIN Law, P.C.
2425 N. Central Expressway, Suite 200
Richardson, Texas 75080
ls[Christopher J. Akin
Christopher J. Akin
DEFENDANT-COUNTERPLAINTIFF HOWARD GROSSER AND THIRD-PARTY Page 5
PLAINTIFF PHROZEN ASSETS LLC’S UNOPPOSED MOTION FOR CONTINUANCE
CAUSE NO. DC-12-07867
RED MANGO FC, LLC § IN THE DISTRICT COURT
Plaintiff-Counterdefendant,
v
160"? JUDICIAL DISTRICT
HOWARD GROSSER and PHROZEN
ASSETS LLC
Defendant-Counterplaintiff and DALLAS COUNTY, TEXAS
Third-Party Plaintiff
AGREED ORDER GRANTING DEFENDANT-COUNTERPLAINTIFF AND
THIRD-PARTY PLAINTIFF HOWARD GROSSER AND PHROZEN ASSETS LLC’S
UNOPPOSED MOTION FOR CONTINUANCE
Having considered Defendant-Counterplaintiff and Third-Party Plaintiff Howard Grosser
and Phrozen Assets LLC’s Unopposed Motion for Continuance (the “Motion”), it is hereby:
ORDERED that the Court GRANTS Defendant-Counterplaintiff and Third-Party Plaintiff
Howard Grosser and Phrozen Assets LLC’s Consent Motion for Continuance. The trial of this
case is hereby reset for Monday, December 9, 2013.
IT IS SO ORDERED.
SIGNED this day of » 2013.
THE HONORABLE JIM JORDAN
ORDER Page |
AGREED AS TO FORM:
Christopher J. Akin
LYNN TILLOTSON PINKER Cox, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
COUNSEL FOR DEFENDANT-COUNTER
PLAINTIFF HOWARD GROSSER AND
THIRD-PARTY PLAINTIFF PHROZEN ASSETS LLC
Cheryl Mullin
Christianne Edlund
MULLIN Law, P.C.
2425 N. Central Expressway, Suite 200
Richardson, Texas 75080
COUNSEL FOR PLAINTIFF-COUNTERDEFENDANT
RED MANGO FC LLC
ORDER Page 2
Preview
Filed 13 April 24 P4:54 Gary Fitzsimmons District Clerk Dallas District CAUSE NO. DC-12-07867 RED MANGO FC, LLC § IN THE DISTRICT COURT Plaintiff-Counterdefendant, v 160™ JUDICIAL DISTRICT HOWARD GROSSER and PHROZEN ASSETS LLC Defendant-Counterplaintiff and DALLAS COUNTY, TEXAS Third-Party Plaintiff DEFENDANT-COUNTERPLAINTIFF HOWARD GROSSER AND THIRD-PARTY PLAINTIFF PHROZEN ASSETS, LLC’S UNOPPOSED MOTION FOR CONTINUANCE TO THE HONORABLE COURT: Pursuant to Texas Rules of Civil Procedure 190.5 and 251 and Dallas County Local Rule 3.01, Defendant-Counterplaintiff and Third-Party Plaintiff Howard Grosser and Phrozen Assets LLC (“Movant”) hereby file this unopposed motion to continue the trial date in the above-captioned matter, (currently scheduled to begin July 15, 2013) to allow time for discovery and to adjust other deadlines as appropriate based on the new trial date. I ARGUMENT 1 This case has been on file for less than one year. For cases pending less than one year, Local Rule 3.01 provides that a trial continuance may be granted when counsel for all parties consent. Here, counsel for all parties have consented to a continuance, as shown by the proposed agreed order being submitted contemporaneously with this motion. 2. In addition, under Texas Rule of Civil Procedure 190.5, the Court “may modify a discovery control plan at any time and must do so when the interest of justice requires.” Here, DEFENDANT-COUNTERPLAINTIFF HOWARD GROSSER AND THIRD-PARTY Page 1 PLAINTIFF PHROZEN ASSETS LLC’S UNOPPOSED MOTION FOR CONTINUANCE even though the parties have diligently pursued discovery, a continuance is necessary in the interest of justice to provide sufficient time for the completion of discovery. 3 This case has been the subject of extensive motion practice. At the present time Grosser has a motion to compel discovery which is scheduled to be heard on May 9, 2013. In addition, Plaintiff-Counterdefendant Red Mango FC, LLC (“Mango”) filed a motion for summary judgment, which the court is considering at this time. These factors have made it impossible for Grosser to conduct depositions to date. By the time these issues have been resolved there will not be sufficient time for Grosser to receive and analyze the written discovery, conduct depositions, analyze the results of the depositions and then be ready for trial on July 15. For the same reasons, Mango has not had the opportunity to depose Grosser. 4 Although Mango disputes it is responsible for any delays, it has consented to continuing this case and setting a new trial date. Based upon the schedules of all counsel, it is respectfully requested that this case be set for trial on Monday, December 9, 16 or 2 (in this preferred order). All dates prior to this time have conflicts with one or more counsel, including trials and time counsel will be outside the country. It is also requested that all discovery deadlines be changed commensurate with this new date. 5 Under Texas Rule of Civil Procedure 251, the Court may grant a continuance of a trial date for sufficient cause, and a trial court has substantial discretion in determining whether cause exists to grant a continuance, and may take into account the entire procedural history of the case in making its decision. See Waste Water v. Alpha Finishing & Developing Corp., 874 S.W.2d 940, 942-943 (Tex. App—Houston [14th Dist.] 1994 no writ). Considering that it is impracticable to try this case on July 15, the Court therefore has good cause to grant a continuance of the trial. DEFENDANT-COUNTERPLAINTIFF HOWARD GROSSER AND THIRD-PARTY Page 2 PLAINTIFF PHROZEN ASSETS LLC’S UNOPPOSED MOTION FOR CONTINUANCE IL. CONCLUSION For the foregoing reasons, it is respectfully requested that this case be scheduled for trial on Monday, December 9, 16 or 2 (in this preferred order) and all discovery deadlines be changed commensurate with this new date. DEFENDANT-COUNTERPLAINTIFF HOWARD GROSSER AND THIRD-PARTY Page 3 PLAINTIFF PHROZEN ASSETS LLC’S UNOPPOSED MOTION FOR CONTINUANCE Dated: April 22, 2013 Respectfully submitted, By: /s/Christopher J. Akin Christopher J. Akin Texas State Bar Number 00793237 LYNN TILLOTSON PINKER Cox, LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 T: 214.981.3812 F: 214.981.3839 Email: cakin@lynnllp.com and Mitchell J. Kassoff Admitted Pro Hac Vice Two Foster Court So. Orange, N.J. 07079-1002 T: 973.762.1776 Email: franchiselawyer@verizon.net ATTORNEYS FOR DEFENDANT- COUNTER PLAINTIFF HOWARD GROSSER AND THIRD-PARTY PLAINTIFF PHROZEN ASSETS LLC and Cheryl Mullin Texas Bar No. 24037807 Christianne Edlund Texas Bar No. 24072083 MULLIN Law, P.C. 2425 N. Central Expressway, Suite 200 Richardson, Texas 75080 COUNSEL FOR PLAINTIFF- COUNTERDEFENDANT RED MANGO FC LLC DEFENDANT-COUNTERPLAINTIFF HOWARD GROSSER AND THIRD-PARTY Page 4 PLAINTIFF PHROZEN ASSETS LLC’S UNOPPOSED MOTION FOR CONTINUANCE CERTIFICATE OF CONFERENCE Counsel have conferred as to the relief requested in this motion and have agreed to the relief requested herein (as shown by the proposed agreed order being submitted together with this motion). Certified on this date by, [s[Mitchell J. Kassoff Mitchell J. Kassoff CERTIFICATE OF SERVICE This is to certify that on the 24th day of April, 2013, a true and correct copy of the foregoing motion was forwarded to Plaintiff's counsel by email (as agreed to by said counsel). VA ELECTRONIC MAIL Cheryl Mullin MULLIN Law, P.C. 2425 N. Central Expressway, Suite 200 Richardson, Texas 75080 ls[Christopher J. Akin Christopher J. Akin DEFENDANT-COUNTERPLAINTIFF HOWARD GROSSER AND THIRD-PARTY Page 5 PLAINTIFF PHROZEN ASSETS LLC’S UNOPPOSED MOTION FOR CONTINUANCE CAUSE NO. DC-12-07867 RED MANGO FC, LLC § IN THE DISTRICT COURT Plaintiff-Counterdefendant, v 160"? JUDICIAL DISTRICT HOWARD GROSSER and PHROZEN ASSETS LLC Defendant-Counterplaintiff and DALLAS COUNTY, TEXAS Third-Party Plaintiff AGREED ORDER GRANTING DEFENDANT-COUNTERPLAINTIFF AND THIRD-PARTY PLAINTIFF HOWARD GROSSER AND PHROZEN ASSETS LLC’S UNOPPOSED MOTION FOR CONTINUANCE Having considered Defendant-Counterplaintiff and Third-Party Plaintiff Howard Grosser and Phrozen Assets LLC’s Unopposed Motion for Continuance (the “Motion”), it is hereby: ORDERED that the Court GRANTS Defendant-Counterplaintiff and Third-Party Plaintiff Howard Grosser and Phrozen Assets LLC’s Consent Motion for Continuance. The trial of this case is hereby reset for Monday, December 9, 2013. IT IS SO ORDERED. SIGNED this day of » 2013. THE HONORABLE JIM JORDAN ORDER Page | AGREED AS TO FORM: Christopher J. Akin LYNN TILLOTSON PINKER Cox, LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 COUNSEL FOR DEFENDANT-COUNTER PLAINTIFF HOWARD GROSSER AND THIRD-PARTY PLAINTIFF PHROZEN ASSETS LLC Cheryl Mullin Christianne Edlund MULLIN Law, P.C. 2425 N. Central Expressway, Suite 200 Richardson, Texas 75080 COUNSEL FOR PLAINTIFF-COUNTERDEFENDANT RED MANGO FC LLC ORDER Page 2