Preview
FILED
DALLAS COUNTY
5/9/2014 12:09:04 PM
GARY FITZSIMMONS
DISTRICT CLERK
CAUSE NO. DC-I 2-I2887-G
MUGDOCK TAVERN INVESTMENTS $ IN THE DISTRICT COURT OF
and DUFFY I, LP, $
$
Plaintiffs, $
$
VS $
$
CAT SEATTLE, LLC, ASCENÐ s
HEALTH CORPORATION, and $ DALLAS COUNTY, TEXAS
RICHARD KRESCH, Individually, $
s
f)efendants and Counter-Plain tiffs, s
s
vs. s
s
DUFFY I, LP. and JAMES P. GRAHAM, $
$
Counter-Defendants. $ 134th JUDICIAL DISTRICT
PLAINTIFFS' MOTION FOR CONTINUANCE OF
SUMMARY JUDGMENT AND TRIAL
TO THE HONORABLE JUDGE OF SAID COT]RT:
Come now, PLAINTIFF MUGDOCK TAVERN INVESTMENTS,
PLAINTIFF/COI-INTER-DEFENDANT DUFFY I, L.P. ("Duffy"), and COLTNTER-
DEFENDANT JAMES P. GRAHAM ("Graham") and file this Motion for Continuance of
Summary Judgment and Trial against CAT SEATTLE, LLC ("CAT"), ASCEND HEALTH
CORPORATION ("Ascend"), and RICHARD KRE,SCH ("Kresch"), Individually (hereinafter
may be collectively referred to as the "Defendants"), and, in support thereof, would respectfully
show the Court the following:
PLAINTIFFS'MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page I of ll
0001
I. Introduction
Plaintiffs' have filed three separate Motions to Compel, all granted; and despite the fact that
Plaintiffs'First Request for Production was served in July of 2013, Defendants have
delivered at least 10 different waves of documents responsive to those requests, spanning
some eight months, with the latest one coming on May 6, less than 30 days before trial.
Ptaintiffs still have yet to complete Defendants' corporate representative depositions, in
addition to several other depositions, and have, based on the circumstances, a genuine
concern that document production is actually complete.
II. Factual Background
1. Plaintiffs' Original Petition was filed on November 1, 2012. Defendants' filed a Motion to
Dismiss on January 75,2013, based on the purported application of a forum selection clause
in the applicable agreement(s) between the parties. Following a hearing and subsequent
briefing, this Court denied Defendants'Motion to Dismiss on May 15,2013.r Defendants
file its Original Counterclaims against Duffy and Graham on May 22,2013.
2. Plaintiffs' served their First Request for Production of Documents on July 18, 2013, its
Interrogatories to Defendants on August 6,2013, and its Second Request for Production of
Documents on August 9,2013. Defendants' filed its Objections and Responses to Plaintiffs'
First Request for Production of Documents on August 19,2013, its Objections and Answers
to Plaintiffs' Interrogatories on September 5, 2013, and its Objections and Responses to
Plaintiffs' Second Request for Production on September ll ,2013.
3. I{owever, Defendants did not initially produce any documents or make them available for
inspection. Instead, in addition to a myriad of objections which were ultimately withdrawn
I Despite Defendants still maintain
this ruling, a cause of action based on this forum selection clause
PLAINTIFFS'MOTION FOR CONTTNUANCE OF SUMMARY JUDGMENT AND TRIAL PageZ of 1l
0002
either (a) following one of Plaintiffs' three motions to compel (more below) or (b) by rule I 1
agreement, Defendants refused to produce documents until a Protective Order was in place
claiming that many, if not all, documents contained confidential and/or trade secret
infor:rnation.
4. An Agreed Protective Order was signed by this Courl on August 30,2013. Defendants'
overbroad "attorney's eyes only" designation prohibited Plaintiffs ability to even view the
Schick Shadel protocols (the essence of Plaintiffs' lawsuit). This issue was not resolveduntil
after Plaintiffs were forced to file an Application for Relief from Agreed Protective Order on
January 13,2014, a full six months after documents were first requested.2
5. On August 29,2013, the Defendants filed an Agreed Motion for Continuance requesting this
Court re-set this case until February 24, 2014, due to the delays caused by the Motion to
Dismiss and the inadequacy of discovery to that point. This Court granted that Motion on
September 7, 2013 and re-set the trial until February 24, 2014. The Court subsequently
signed an Amended Scheduting Order with a discovery deadline of January 24,2014'
6. On September 12, 2013, Defendants delivered its fiïst 2,500 documents (1't wave) to
Plaintiffs in no definable order. Following a letter to Defendants requesting that they amend
their responses to Plaintiffs'document requests to comply with Rule 196, Defendants
delivered another 4,500 documents on November i 3, 2013 (2"d wave), also in a document-
dump fashion and by then almost four months after they were initially requested.
7. Plaintiffs filed its first Motion to Compel on November i8, 2073, based on the
aforementioned inadequacy of Defendants' responses to discovery. This Court's Order
2 with documents in no definable order, as
Therefore, not only were Plaintiffs dealing with a slow, rolling production
detailed infra,but befendants' overbroad designation prohibited them from even looking at those documents that
had been produced.
PLAINTIFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT A ND TRIAL Page 3 of I I
0003
granted that motion on November 25,20ß.3 Defendants' had until December 2,2013, to fix
its discovery responses.
8. On November 15, 2013, cognizant of a fast-approaching discovery deadline, Plaintiffs
noticed the deposition of Defendant Kresch to occur on December 4,2013.. At7z09 p.m. on
the evening of December 2, 2013, Defendantso counsel sent an e-mail to Plaintiffs'
counsel which attached a cover letter indicating Defendants had sent or were sending
yet another 500 documents for Plaintiffs to digest, again in no definable order (3'd wave).
On December 4,2013,Defendant Kresch was deposed.a
9. On December 2, 2013, Defendants served amended discovery responses, but they did not
comply with the Court's order. As a result, Plaintiffs' f,rled its Second Motion to Compel on
December 13,2013. Following ahearing wherein Plaintiffs'were forced to, effectively, re-
asseded their first Motion to Compel, Defendants' agreed to withdraw reservation language
in its discovery responses. Defendants served amended discovery responses on December
20, 2013. On December 30, 20ß (4th wave), and again on January 8, 2014 (Sth wave),
Defendants submitted yet more documents.
10. Since early fall, Defendants had been trying to obtain the depositions of Defendants'
corporate representatives. Plaintiffs had sought deposition dates from Defendants' corporate
representative as early as August 20ß,s Plaintiffs again sought theses depositions, finally
noticing them on December 23,2013, to occur in early January. The notices were quashed'
Plaintiffs were finally given deposition dates for the third week of January, 2014. The
Plaintiffs' First Motion to Compel is attached hereto as Exhibit A.
'4 , A true and conect copy of the Order granting
Plaintiffs reserved remaining time at the close of Kresch's deposition due to the late receipt of those 500
documents. Unbeknownst at the time, an additional 2,000 documents
to Plaintiffs had yet to arrive,either.
' Plaintiffshad intended to depose Defendants' corporate representatives soon afterhaving received and reviewed
what they assumed would have been documents responsive to their requests for production and answers to its
interrogatories.
PLATNTIFFS'MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page 4 of 11
0004
depositions of corporate representatives Steve Page and Karen Young occurred on January
20, and 23'd, respectively.6
11. Recognizing that discovery was far from complete, Plaintiffs filed a Motion for Continuance
on January 9,2014.7 This Court granted that motion on January 21,2014, and re-set the case
for June 2,2014. An amended scheduling order was entered on February 4, 2014, with a
discovery cut-off of May 2,2014.
12, On January 24, 2014, after the first two corpolate representative depositions, Defendants
delivered another CD of documents (6th wave). On February 6, 2014, DeÍèndants delivered
an additional 1450 documents (7th wave).
13. As a result of continuing defective discovery responses and the uncertainty of what
documents remained to be produced, Plaintiffs' were forced to file their Third Motion to
Compel on March 3, 2014. Within that motion, Plaintiffs explained that documents
continuing to come in should have been produced responsive to Plaintiffs' initial Request for
Production, served in July of 2013. This Court's Order granted Plaintiffs' Motion on March
I0, 2014.8
14. On that same day, March 10,2014, Defendants' counsel sent Plaintiffs'counsel a letter that
included the following:
"As another housekeeping matter, to follow up on the conversation you had with
Victor today, pleøse tell us what documents or cøtegory of documents youfeel we
have not produced. After we know what you believe is missing, we will do one
finøl sweep to try to find all of such documents or at least be in a position to tell
6
On Friduy, January 17,2}ll,Plaintiffs received a lefter from counsel for Defendants regarding the topics on which
each corporate representative deponent would be testifling regarding more here.
7
Defendants while technically opposed to the motion because they wanted clarification on discovery agreed that a
continuance was appropriate.
t Plaintiffs' Third Motion to Compel hereto as
A true and correct copy of the CouÉ's Order granting is atlached
Exhibit B.
PLAINTTFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page 5 Of 1I
0005
you that we do not possess them. Although we believe we have produced whøt
has been requested of us, we want to make sure to tie up any loose ends on our
side before trial, as I am sure you want to do on your side too."e
On March 26,2014, Defendants produced two more CDs with over 800 documents (8th and
9rh wave).
15. On April 8 and 9, 2014, Plaintiffs took the depositions of five Schick Shadel employees in
Seattle, V/ashington. Defendants third corporate representative, Asad Islam, who also
happens to be the treating physician at Schick Shadel in Denton and a purported expeft on
Schick Shadel protocols, implementation and training, was deposed on April 11, 2014.
However, due to conflicts as a result of Dr. Islam's schedule, his deposition was moved to
later in the day and will not be concluded before May 16, 2014. Plaintiffs' own expert, Dr.
Richard Frawley, will not have had an opportunity to review Defendants' corporate
representative testimony until, at earliest, two weeks before trial.
16. On May 5,2014, Plaintiffs'deposed Stacy Sprabury, a licensed vocational nurse at Schick
Shadel in Denton and Renee Shadden, the Director of Social Services at Mayhill Hospital
and a purported experl on Schick Shadel "protocols, implementation and staff training."l0
17. During Sprabury's deposition, she revealed that she had in her possession documents
responsive to Plaintiffs' prior requests. The next day, Defendants produced a binder with an
additional 200 documents, purportedly a part of Sprabury's own "personal binder" (10th
wave).ll In addition, Sprabury revealed that Rick Harding, Mayhill's former Administrator,
directed all Schick Shadel staff members not to contact Schick Shadel Seattle staff. As a
n
A true and corect copy of this letter is attached hereto as Exhibit
C (emphasis added).
l0,See
Defendants'4th Amended and Supplemental Response to Plaintiffs' Request for Disclosure at9, a true and
corect copy of which is attached hereto as Exhibit D.
" A true and correct copy of this letter is attached
hereto as Exhibit E.
PLAINTIFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page 6 of 1l
0006
result, Plaintiffs will seek to depose Rick Harding and the additional staff members who were
so informed.l2
18. During Shadden's deposition, it was revealed that she did not, in fact, have any expertise on
protocols, implementation and staff training, utterly contrary to the designation, but rather
that she was an expert only on counseling and staff counseling at Schick Shadel in Denton.l3
ilI. Argument
19. The 'lexas Rules of Civil Procedure allow the Court to continue a surrunary judgment and
trial for additional discovery. See Tex. R. Civ. P. 252. The additional discovery sought is material
to Plaintiff s claims, defenses and summary judgment.
20. Defendants admittedly have engaged in a "rolling production." Plaintiffs have been
required to f,rle three separate Motions to Compel arising out of responses to discovery and
documents produced.la To date, Plaintiffs'have received 10 separate productions over the
course of eight months, the latest coming in on lli4.ay 6,2014. In addition, recent deposition
testimony and Defendants' counsel's own letter gives rise to areal conceffr that more documents
could be out there and may be coming. Even assuming that Defendants have diligently tumed
over responsive documents as they find them, the net effect on Plaintiffs' ability to conduct
discovery and prepare for trial is the same.
21. Since this Court granted the prior Motion for Continuance on January 21,2014, Plaintifß
have been diligent in their efforts to ftnalize discovery and prepare for trial. During that time,
Plaintiffs have deposed the following:
12
The deposition transcript for Sprabury is not available at the time of filing this motion, but Plaintiffs will bring a
rough draft to the hearing if it is available.
'' The deposition transcriptfor Shadden is not available will bring a
at the time of frling this motion, but Plaintiffs
rough draft to the hearing if it is available.
'o Plaintifß' filed a fourth Motion to Compel with respect to the Inspection of Schick Shadel at Mayhill, only to
receive a CD containing additional pictures of the facility at the hearing; and Plaintiffs' wel'e required to file an
Application for Relieffrom the Agreed Protective Orderjust so their client could look at documents he already had.
PLAINTIFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL PageT of 1l
0007
. Susan Young, corporate representative
¡ Steve Page, corporate representative
. Ralph Elkins, treatment doctor, Seattle
o Elaine Oksendahl, Administrator, Seattle
. Debra Kristiansen, training nurse for Denton facility
o Marvy Schmidt, training nurse for Denton facility
. Kalyan Dandala, doctor who trained physicians in Denton
. Stacy Sprabury, nurse, Denton facility
o Renee Shadden, Director of Counseling, Denton facility
However, Plaintiffs still have several depositions to take. First, they have not finished the
deposition of Dr. Islam. As the treating physician at Schick Shadel in Denton, and an expert on
the protocols and training at issue in the case, his testimony is, of course, vital to both the trial
and the summary judgment.
22. Also, Plaintifß will seek to depose Raza Sayed, one of only two, treating
physicians at Schick Shadel in Denton who withdrew from the Schick Shadel program shortly
after itopened because, according to Dr. Dandala, deposed on April 9,2014, he was concerned
about participating in the Schick Shadel program based on his limited exposure to the
protocols.ls In addition, Plaintiffs will also seek to depose Denton administrator Rick Harding
and other Schick Shadel Denton staff members whom he directed not to communicate with
anyone at Schick Shadel in Seattle. Given that the sufficiency of training and adherence to the
Schick Shadel protocols are at the heart of this case, those depositions are also vital.
23. Finally, the parties have not mediated the case, despite this Courl's Scheduling
Order. In the late fall, counsel for Plaintiffs approached counsel for Defendants about mediation
r5
Despite his involvement in training for the Schick Shadel implementation and the fact that he worked at Schick
Shadel in Denton for a short time, he is not listed on Defendants' Response to Requests for Disclosure as a person
with knowledge of relevant facts.
PLAINTIFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page 8 of ll
0008
pursuant to the Couft's then-existing Scheduling Order and was told itwas too soon to mediate.
On March lI, 2014, counsel for Plaintiffls again contacted opposing counsel and the court-
appointed mediator, James M. Stanton regarding its impending mediation deadline of April 9,
2014. To date, Defendants have not responded.
24. Plaintiffs respectfully move the Court to grant a continuance of the summary
judgment hearing and the current trial setting for a period of at least 90 days to give them adequate
time to conclude discovery, receive and analyze discovery from Defendants and prepare for trial.
This request for continuance is not sought for delay, but so that justice may be done.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Movants pray that the Court will set this
Motion for a hearing, and, upon completion of the hearing, grant the relief requested herein, and
for such other and fuither relief at law in equity to which Plaintiffs may be justly entitled.
Respectfully submitted,
GLA Y, P.C
By:
Charles C. Frederiksen
State Bar No. 07413300
J. Randal Brown
State Bar No. 24009812
14801 Quorum Drive, Suite 500
Dallas, Texas 75254
(972) 419-8300 (Telephone)
(972) 419-8329 (Fax)
cfied eriksen@ gpm-l aw. com
ATTORNEY FOR PLAINTIFFS
PLAINTÍFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page 9 of I I
0009
VERIFICATION
STATE OF TEXAS )
)
COUNTY OF'DALLAS )
BEFORE ME, the undersigned Notary Public, on this day personally appeared Charles C.
Frederiksen, who being duly sworn on his oath deposed and said that he is the attorney for
Plaintiffs MUGDOCK TAVERN INVESTMENTS, DUFFY 1, L.P. and Counter/Defendant
JAMES P. GRAHAM, in the above-entitled and numbered cause; that he has read the above and
foregoing Motion for Continuanee of Summary Judgment and Trial; and that every statement
contained therein is within his personal knowledge and is true and comect.
Pursuant to Local Rule 3.01(b), Plaintiffs MUGDOCK TAVERN INVESTMENTS,
DUFFY 1, L.P. and Counter/Defendant JAMES P. GRAHAM have personally approved this
Motion.
C. Frederiksen
SV/ORN TO BEFORE ME on ,n" ffOay of May,20t4
Notary Public in and for the
State of Texas
N s Name Printed
-,&.&-rn
My Commission Expires:
PLAINTIFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page l0 of ll
0010
CERTIFICATE OF CONFERENCE
Counsel for movant and counsel for respondent have personally conducted a conference
at which there was a substantive discussion of every item presented to the Court in this motion
and despite best efforls the counsel have not been able to resolve all of those matters presented.
Cerlified to on May$,2014by
J Randal Brown
CERTIFICATE OF SERVICE
The undersigned hereby certif,res thatatrue and correct copy of the foregoing was served
on the following on ivtal$í 2014, via email:
Victor D. Vital t
GRnBNeeRG TRAURIG, LLP
2200 Ross Avenue, Suite 5200
Dallas, TX 75201
Fax: (214) 665-3601
Email : vitalv@gtlaw.corn
J Brown
PLAINTIFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page I I of I I
0011
CAUSE NO. DC-12-I2887-K
MUGDOCK TAVERN INVESTMENTS $ IN THE DISTRICT COURöBÐ gg
and DUFFY I, LP, $
$
Plaintiffs, $
$
vs. $
$
CAT SEATTLE, LLC, ASCEND $
HEALTH CORPORATION, and $ DALLAS COUNTY, TEXAS
RICHAR-D KRESCH, Individually, $
$
Defend ants and Counter-Plaintiffs, $
$
vs. $
$
DUFFY I, LP" and JAMES P. GR.AHAM, $
$
Counter-Defendants. $ 134Ih JUDICIAL DISTRICT
OBDER
ON THIS THE 25th day of November, 2013, came on to be heard Plaintiffs
Mugdock Tavern Investments and Dufff I, L.P.'s Motion to Compel. The Court, having
heard the evidence and argument of counsel, f,rnds as follows:
It is hereby ORDERED, ADJUDGED and DECREED that Plaintiffs Mugdock
Tavern Investments and Duf$'I, L.P.'s Motion to Compel is hereby GRANTED, and it is
further;
ORDERED, ADJUDGED and DECREED that Defendants Ascend Health
Corporation, CAT Seattle, LLC and Richard Kresch will produce any documents
ORDER
tl5396t25vl
04386.20
EXHIBIT
's
ô
D
g 0072
responsive to Plaintiffs Mugdock Tavern and Dufff I, L.P.'s Requests for
Production by it is frrther
ORDERED, ADJUDGED and DECREED that Defendants Ascend Health
Corporation, CAT Seattle, LLC and Richard Kresch will amend discovery responses by
€-
accordance with Rule 196.2(b) bV stating that, with respect to each
reques! any responsive documents have been produced and identiflred by Bates number,
or that no responsive documents have been identified responsive to the request.
SIGNED this of November,2013.
I
IN
ORDER'
fl5396125v1
0ø.386.20
0013
CAUSII NO. DC*I 2-12887.K
MTJG DOCK TAVERN INVtrSTMENTS $ IN TIIE DISTRICl'COURT OF
and DUFFY I, LP, $
$
Plaintiffs, $
$
vs
$
$
CAT SEATTLE, LLC, ASCBNI) $
HEALTH CORPORATION, and $ DALLAS COUNTY, TEXAS
IIICHARD KRESCH, Individuaily, $
$
Defendants and Cou nter-Plaintiffso $
$
vs
$
$
DUFFY I, LP. and JAMBS P. GRAI{AM, $
$
Ct¡ u nter-I)efenda n ts. $ 134fI.JUDICIAL DISTRICT
ORDEB
ON TI-llS TI-IE l0'r'clay of March, 2014. carne on to be heard Plaintil'fs Mugdock
'favern 'fhird
Investments and Durly l, L,P.'s Motion to Compel. The Court, having
heard the evidence and arguments of counsel, lin
Preview
FILED DALLAS COUNTY 5/9/2014 12:09:04 PM GARY FITZSIMMONS DISTRICT CLERK CAUSE NO. DC-I 2-I2887-G MUGDOCK TAVERN INVESTMENTS $ IN THE DISTRICT COURT OF and DUFFY I, LP, $ $ Plaintiffs, $ $ VS $ $ CAT SEATTLE, LLC, ASCENÐ s HEALTH CORPORATION, and $ DALLAS COUNTY, TEXAS RICHARD KRESCH, Individually, $ s f)efendants and Counter-Plain tiffs, s s vs. s s DUFFY I, LP. and JAMES P. GRAHAM, $ $ Counter-Defendants. $ 134th JUDICIAL DISTRICT PLAINTIFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL TO THE HONORABLE JUDGE OF SAID COT]RT: Come now, PLAINTIFF MUGDOCK TAVERN INVESTMENTS, PLAINTIFF/COI-INTER-DEFENDANT DUFFY I, L.P. ("Duffy"), and COLTNTER- DEFENDANT JAMES P. GRAHAM ("Graham") and file this Motion for Continuance of Summary Judgment and Trial against CAT SEATTLE, LLC ("CAT"), ASCEND HEALTH CORPORATION ("Ascend"), and RICHARD KRE,SCH ("Kresch"), Individually (hereinafter may be collectively referred to as the "Defendants"), and, in support thereof, would respectfully show the Court the following: PLAINTIFFS'MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page I of ll 0001 I. Introduction Plaintiffs' have filed three separate Motions to Compel, all granted; and despite the fact that Plaintiffs'First Request for Production was served in July of 2013, Defendants have delivered at least 10 different waves of documents responsive to those requests, spanning some eight months, with the latest one coming on May 6, less than 30 days before trial. Ptaintiffs still have yet to complete Defendants' corporate representative depositions, in addition to several other depositions, and have, based on the circumstances, a genuine concern that document production is actually complete. II. Factual Background 1. Plaintiffs' Original Petition was filed on November 1, 2012. Defendants' filed a Motion to Dismiss on January 75,2013, based on the purported application of a forum selection clause in the applicable agreement(s) between the parties. Following a hearing and subsequent briefing, this Court denied Defendants'Motion to Dismiss on May 15,2013.r Defendants file its Original Counterclaims against Duffy and Graham on May 22,2013. 2. Plaintiffs' served their First Request for Production of Documents on July 18, 2013, its Interrogatories to Defendants on August 6,2013, and its Second Request for Production of Documents on August 9,2013. Defendants' filed its Objections and Responses to Plaintiffs' First Request for Production of Documents on August 19,2013, its Objections and Answers to Plaintiffs' Interrogatories on September 5, 2013, and its Objections and Responses to Plaintiffs' Second Request for Production on September ll ,2013. 3. I{owever, Defendants did not initially produce any documents or make them available for inspection. Instead, in addition to a myriad of objections which were ultimately withdrawn I Despite Defendants still maintain this ruling, a cause of action based on this forum selection clause PLAINTIFFS'MOTION FOR CONTTNUANCE OF SUMMARY JUDGMENT AND TRIAL PageZ of 1l 0002 either (a) following one of Plaintiffs' three motions to compel (more below) or (b) by rule I 1 agreement, Defendants refused to produce documents until a Protective Order was in place claiming that many, if not all, documents contained confidential and/or trade secret infor:rnation. 4. An Agreed Protective Order was signed by this Courl on August 30,2013. Defendants' overbroad "attorney's eyes only" designation prohibited Plaintiffs ability to even view the Schick Shadel protocols (the essence of Plaintiffs' lawsuit). This issue was not resolveduntil after Plaintiffs were forced to file an Application for Relief from Agreed Protective Order on January 13,2014, a full six months after documents were first requested.2 5. On August 29,2013, the Defendants filed an Agreed Motion for Continuance requesting this Court re-set this case until February 24, 2014, due to the delays caused by the Motion to Dismiss and the inadequacy of discovery to that point. This Court granted that Motion on September 7, 2013 and re-set the trial until February 24, 2014. The Court subsequently signed an Amended Scheduting Order with a discovery deadline of January 24,2014' 6. On September 12, 2013, Defendants delivered its fiïst 2,500 documents (1't wave) to Plaintiffs in no definable order. Following a letter to Defendants requesting that they amend their responses to Plaintiffs'document requests to comply with Rule 196, Defendants delivered another 4,500 documents on November i 3, 2013 (2"d wave), also in a document- dump fashion and by then almost four months after they were initially requested. 7. Plaintiffs filed its first Motion to Compel on November i8, 2073, based on the aforementioned inadequacy of Defendants' responses to discovery. This Court's Order 2 with documents in no definable order, as Therefore, not only were Plaintiffs dealing with a slow, rolling production detailed infra,but befendants' overbroad designation prohibited them from even looking at those documents that had been produced. PLAINTIFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT A ND TRIAL Page 3 of I I 0003 granted that motion on November 25,20ß.3 Defendants' had until December 2,2013, to fix its discovery responses. 8. On November 15, 2013, cognizant of a fast-approaching discovery deadline, Plaintiffs noticed the deposition of Defendant Kresch to occur on December 4,2013.. At7z09 p.m. on the evening of December 2, 2013, Defendantso counsel sent an e-mail to Plaintiffs' counsel which attached a cover letter indicating Defendants had sent or were sending yet another 500 documents for Plaintiffs to digest, again in no definable order (3'd wave). On December 4,2013,Defendant Kresch was deposed.a 9. On December 2, 2013, Defendants served amended discovery responses, but they did not comply with the Court's order. As a result, Plaintiffs' f,rled its Second Motion to Compel on December 13,2013. Following ahearing wherein Plaintiffs'were forced to, effectively, re- asseded their first Motion to Compel, Defendants' agreed to withdraw reservation language in its discovery responses. Defendants served amended discovery responses on December 20, 2013. On December 30, 20ß (4th wave), and again on January 8, 2014 (Sth wave), Defendants submitted yet more documents. 10. Since early fall, Defendants had been trying to obtain the depositions of Defendants' corporate representatives. Plaintiffs had sought deposition dates from Defendants' corporate representative as early as August 20ß,s Plaintiffs again sought theses depositions, finally noticing them on December 23,2013, to occur in early January. The notices were quashed' Plaintiffs were finally given deposition dates for the third week of January, 2014. The Plaintiffs' First Motion to Compel is attached hereto as Exhibit A. '4 , A true and conect copy of the Order granting Plaintiffs reserved remaining time at the close of Kresch's deposition due to the late receipt of those 500 documents. Unbeknownst at the time, an additional 2,000 documents to Plaintiffs had yet to arrive,either. ' Plaintiffshad intended to depose Defendants' corporate representatives soon afterhaving received and reviewed what they assumed would have been documents responsive to their requests for production and answers to its interrogatories. PLATNTIFFS'MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page 4 of 11 0004 depositions of corporate representatives Steve Page and Karen Young occurred on January 20, and 23'd, respectively.6 11. Recognizing that discovery was far from complete, Plaintiffs filed a Motion for Continuance on January 9,2014.7 This Court granted that motion on January 21,2014, and re-set the case for June 2,2014. An amended scheduling order was entered on February 4, 2014, with a discovery cut-off of May 2,2014. 12, On January 24, 2014, after the first two corpolate representative depositions, Defendants delivered another CD of documents (6th wave). On February 6, 2014, DeÍèndants delivered an additional 1450 documents (7th wave). 13. As a result of continuing defective discovery responses and the uncertainty of what documents remained to be produced, Plaintiffs' were forced to file their Third Motion to Compel on March 3, 2014. Within that motion, Plaintiffs explained that documents continuing to come in should have been produced responsive to Plaintiffs' initial Request for Production, served in July of 2013. This Court's Order granted Plaintiffs' Motion on March I0, 2014.8 14. On that same day, March 10,2014, Defendants' counsel sent Plaintiffs'counsel a letter that included the following: "As another housekeeping matter, to follow up on the conversation you had with Victor today, pleøse tell us what documents or cøtegory of documents youfeel we have not produced. After we know what you believe is missing, we will do one finøl sweep to try to find all of such documents or at least be in a position to tell 6 On Friduy, January 17,2}ll,Plaintiffs received a lefter from counsel for Defendants regarding the topics on which each corporate representative deponent would be testifling regarding more here. 7 Defendants while technically opposed to the motion because they wanted clarification on discovery agreed that a continuance was appropriate. t Plaintiffs' Third Motion to Compel hereto as A true and correct copy of the CouÉ's Order granting is atlached Exhibit B. PLAINTTFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page 5 Of 1I 0005 you that we do not possess them. Although we believe we have produced whøt has been requested of us, we want to make sure to tie up any loose ends on our side before trial, as I am sure you want to do on your side too."e On March 26,2014, Defendants produced two more CDs with over 800 documents (8th and 9rh wave). 15. On April 8 and 9, 2014, Plaintiffs took the depositions of five Schick Shadel employees in Seattle, V/ashington. Defendants third corporate representative, Asad Islam, who also happens to be the treating physician at Schick Shadel in Denton and a purported expeft on Schick Shadel protocols, implementation and training, was deposed on April 11, 2014. However, due to conflicts as a result of Dr. Islam's schedule, his deposition was moved to later in the day and will not be concluded before May 16, 2014. Plaintiffs' own expert, Dr. Richard Frawley, will not have had an opportunity to review Defendants' corporate representative testimony until, at earliest, two weeks before trial. 16. On May 5,2014, Plaintiffs'deposed Stacy Sprabury, a licensed vocational nurse at Schick Shadel in Denton and Renee Shadden, the Director of Social Services at Mayhill Hospital and a purported experl on Schick Shadel "protocols, implementation and staff training."l0 17. During Sprabury's deposition, she revealed that she had in her possession documents responsive to Plaintiffs' prior requests. The next day, Defendants produced a binder with an additional 200 documents, purportedly a part of Sprabury's own "personal binder" (10th wave).ll In addition, Sprabury revealed that Rick Harding, Mayhill's former Administrator, directed all Schick Shadel staff members not to contact Schick Shadel Seattle staff. As a n A true and corect copy of this letter is attached hereto as Exhibit C (emphasis added). l0,See Defendants'4th Amended and Supplemental Response to Plaintiffs' Request for Disclosure at9, a true and corect copy of which is attached hereto as Exhibit D. " A true and correct copy of this letter is attached hereto as Exhibit E. PLAINTIFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page 6 of 1l 0006 result, Plaintiffs will seek to depose Rick Harding and the additional staff members who were so informed.l2 18. During Shadden's deposition, it was revealed that she did not, in fact, have any expertise on protocols, implementation and staff training, utterly contrary to the designation, but rather that she was an expert only on counseling and staff counseling at Schick Shadel in Denton.l3 ilI. Argument 19. The 'lexas Rules of Civil Procedure allow the Court to continue a surrunary judgment and trial for additional discovery. See Tex. R. Civ. P. 252. The additional discovery sought is material to Plaintiff s claims, defenses and summary judgment. 20. Defendants admittedly have engaged in a "rolling production." Plaintiffs have been required to f,rle three separate Motions to Compel arising out of responses to discovery and documents produced.la To date, Plaintiffs'have received 10 separate productions over the course of eight months, the latest coming in on lli4.ay 6,2014. In addition, recent deposition testimony and Defendants' counsel's own letter gives rise to areal conceffr that more documents could be out there and may be coming. Even assuming that Defendants have diligently tumed over responsive documents as they find them, the net effect on Plaintiffs' ability to conduct discovery and prepare for trial is the same. 21. Since this Court granted the prior Motion for Continuance on January 21,2014, Plaintifß have been diligent in their efforts to ftnalize discovery and prepare for trial. During that time, Plaintiffs have deposed the following: 12 The deposition transcript for Sprabury is not available at the time of filing this motion, but Plaintiffs will bring a rough draft to the hearing if it is available. '' The deposition transcriptfor Shadden is not available will bring a at the time of frling this motion, but Plaintiffs rough draft to the hearing if it is available. 'o Plaintifß' filed a fourth Motion to Compel with respect to the Inspection of Schick Shadel at Mayhill, only to receive a CD containing additional pictures of the facility at the hearing; and Plaintiffs' wel'e required to file an Application for Relieffrom the Agreed Protective Orderjust so their client could look at documents he already had. PLAINTIFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL PageT of 1l 0007 . Susan Young, corporate representative ¡ Steve Page, corporate representative . Ralph Elkins, treatment doctor, Seattle o Elaine Oksendahl, Administrator, Seattle . Debra Kristiansen, training nurse for Denton facility o Marvy Schmidt, training nurse for Denton facility . Kalyan Dandala, doctor who trained physicians in Denton . Stacy Sprabury, nurse, Denton facility o Renee Shadden, Director of Counseling, Denton facility However, Plaintiffs still have several depositions to take. First, they have not finished the deposition of Dr. Islam. As the treating physician at Schick Shadel in Denton, and an expert on the protocols and training at issue in the case, his testimony is, of course, vital to both the trial and the summary judgment. 22. Also, Plaintifß will seek to depose Raza Sayed, one of only two, treating physicians at Schick Shadel in Denton who withdrew from the Schick Shadel program shortly after itopened because, according to Dr. Dandala, deposed on April 9,2014, he was concerned about participating in the Schick Shadel program based on his limited exposure to the protocols.ls In addition, Plaintiffs will also seek to depose Denton administrator Rick Harding and other Schick Shadel Denton staff members whom he directed not to communicate with anyone at Schick Shadel in Seattle. Given that the sufficiency of training and adherence to the Schick Shadel protocols are at the heart of this case, those depositions are also vital. 23. Finally, the parties have not mediated the case, despite this Courl's Scheduling Order. In the late fall, counsel for Plaintiffs approached counsel for Defendants about mediation r5 Despite his involvement in training for the Schick Shadel implementation and the fact that he worked at Schick Shadel in Denton for a short time, he is not listed on Defendants' Response to Requests for Disclosure as a person with knowledge of relevant facts. PLAINTIFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page 8 of ll 0008 pursuant to the Couft's then-existing Scheduling Order and was told itwas too soon to mediate. On March lI, 2014, counsel for Plaintiffls again contacted opposing counsel and the court- appointed mediator, James M. Stanton regarding its impending mediation deadline of April 9, 2014. To date, Defendants have not responded. 24. Plaintiffs respectfully move the Court to grant a continuance of the summary judgment hearing and the current trial setting for a period of at least 90 days to give them adequate time to conclude discovery, receive and analyze discovery from Defendants and prepare for trial. This request for continuance is not sought for delay, but so that justice may be done. PRAYER WHEREFORE, PREMISES CONSIDERED, Movants pray that the Court will set this Motion for a hearing, and, upon completion of the hearing, grant the relief requested herein, and for such other and fuither relief at law in equity to which Plaintiffs may be justly entitled. Respectfully submitted, GLA Y, P.C By: Charles C. Frederiksen State Bar No. 07413300 J. Randal Brown State Bar No. 24009812 14801 Quorum Drive, Suite 500 Dallas, Texas 75254 (972) 419-8300 (Telephone) (972) 419-8329 (Fax) cfied eriksen@ gpm-l aw. com ATTORNEY FOR PLAINTIFFS PLAINTÍFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page 9 of I I 0009 VERIFICATION STATE OF TEXAS ) ) COUNTY OF'DALLAS ) BEFORE ME, the undersigned Notary Public, on this day personally appeared Charles C. Frederiksen, who being duly sworn on his oath deposed and said that he is the attorney for Plaintiffs MUGDOCK TAVERN INVESTMENTS, DUFFY 1, L.P. and Counter/Defendant JAMES P. GRAHAM, in the above-entitled and numbered cause; that he has read the above and foregoing Motion for Continuanee of Summary Judgment and Trial; and that every statement contained therein is within his personal knowledge and is true and comect. Pursuant to Local Rule 3.01(b), Plaintiffs MUGDOCK TAVERN INVESTMENTS, DUFFY 1, L.P. and Counter/Defendant JAMES P. GRAHAM have personally approved this Motion. C. Frederiksen SV/ORN TO BEFORE ME on ,n" ffOay of May,20t4 Notary Public in and for the State of Texas N s Name Printed -,&.&-rn My Commission Expires: PLAINTIFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page l0 of ll 0010 CERTIFICATE OF CONFERENCE Counsel for movant and counsel for respondent have personally conducted a conference at which there was a substantive discussion of every item presented to the Court in this motion and despite best efforls the counsel have not been able to resolve all of those matters presented. Cerlified to on May$,2014by J Randal Brown CERTIFICATE OF SERVICE The undersigned hereby certif,res thatatrue and correct copy of the foregoing was served on the following on ivtal$í 2014, via email: Victor D. Vital t GRnBNeeRG TRAURIG, LLP 2200 Ross Avenue, Suite 5200 Dallas, TX 75201 Fax: (214) 665-3601 Email : vitalv@gtlaw.corn J Brown PLAINTIFFS' MOTION FOR CONTINUANCE OF SUMMARY JUDGMENT AND TRIAL Page I I of I I 0011 CAUSE NO. DC-12-I2887-K MUGDOCK TAVERN INVESTMENTS $ IN THE DISTRICT COURöBÐ gg and DUFFY I, LP, $ $ Plaintiffs, $ $ vs. $ $ CAT SEATTLE, LLC, ASCEND $ HEALTH CORPORATION, and $ DALLAS COUNTY, TEXAS RICHAR-D KRESCH, Individually, $ $ Defend ants and Counter-Plaintiffs, $ $ vs. $ $ DUFFY I, LP" and JAMES P. GR.AHAM, $ $ Counter-Defendants. $ 134Ih JUDICIAL DISTRICT OBDER ON THIS THE 25th day of November, 2013, came on to be heard Plaintiffs Mugdock Tavern Investments and Dufff I, L.P.'s Motion to Compel. The Court, having heard the evidence and argument of counsel, f,rnds as follows: It is hereby ORDERED, ADJUDGED and DECREED that Plaintiffs Mugdock Tavern Investments and Duf$'I, L.P.'s Motion to Compel is hereby GRANTED, and it is further; ORDERED, ADJUDGED and DECREED that Defendants Ascend Health Corporation, CAT Seattle, LLC and Richard Kresch will produce any documents ORDER tl5396t25vl 04386.20 EXHIBIT 's ô D g 0072 responsive to Plaintiffs Mugdock Tavern and Dufff I, L.P.'s Requests for Production by it is frrther ORDERED, ADJUDGED and DECREED that Defendants Ascend Health Corporation, CAT Seattle, LLC and Richard Kresch will amend discovery responses by €- accordance with Rule 196.2(b) bV stating that, with respect to each reques! any responsive documents have been produced and identiflred by Bates number, or that no responsive documents have been identified responsive to the request. SIGNED this of November,2013. I IN ORDER' fl5396125v1 0ø.386.20 0013 CAUSII NO. DC*I 2-12887.K MTJG DOCK TAVERN INVtrSTMENTS $ IN TIIE DISTRICl'COURT OF and DUFFY I, LP, $ $ Plaintiffs, $ $ vs $ $ CAT SEATTLE, LLC, ASCBNI) $ HEALTH CORPORATION, and $ DALLAS COUNTY, TEXAS IIICHARD KRESCH, Individuaily, $ $ Defendants and Cou nter-Plaintiffso $ $ vs $ $ DUFFY I, LP. and JAMBS P. GRAI{AM, $ $ Ct¡ u nter-I)efenda n ts. $ 134fI.JUDICIAL DISTRICT ORDEB ON TI-llS TI-IE l0'r'clay of March, 2014. carne on to be heard Plaintil'fs Mugdock 'favern 'fhird Investments and Durly l, L,P.'s Motion to Compel. The Court, having heard the evidence and arguments of counsel, lin