Encompass Holdings Inc. v. Daly et al

Filing 165

ORDER DENYING REQUEST TO BE EXCUSED FROM SETTLEMENT CONFERENCE. Signed by Magistrate Judge Bernard Zimmerman on 5/25/2011. (bzsec, COURT STAFF) (Filed on 5/25/2011)

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Daren R. Brinkman (State Bar No. 158698)
Laura J. Portillo (State Bar No. 186813)
BRINKMAN PORTILLO, PC
4333 Park Terrace Drive, Suite 205
Westlake Village, CA 91361
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Daren R. Brinkman
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Case No. 3:09-cv-01816-BZ

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ENCOMPASS HOLDINGS, INC., a Nevada
corporation,

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Plaintiff,

STATEMENT OF NON-RIPE ISSUES AND
JURISDICTION ISSUES RELATING TO
SETTLEMENT CONFERENCE

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v.

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CAREY F. DALY II, an individual, and
RANDALL J. LANHAM, an individual,
Defendants.

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CAREY F. DALY II, an individual, and
RANDALL J. LANHAM, an individual,

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Counter-Claimants,

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Settlement Conference Date and Time:
Date: June 2, 2011
Time: 9: 30 A.M.

v.

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ENCOMPASS HOLDINGS, INC., et. al.,
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Cross-Defendants.

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Cross-Defendant Daren Brinkman submits this Statement of Non-Ripe Issues and Jurisdiction
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Issues Relating to Settlement Conference (“Notice”) and respectfully submits as follows:
Cross-Defendant Daren Brinkman (“Brinkman”) cannot participate in the settlement
conference scheduled for June 2, 2011 in the above-entitled action for the following reasons:

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STATEMENT OF NON-RIPE ISSUES AND JURISDICTION ISSUES RELATING TO SETTLEMENT CONFERENCE

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On March 11, 2011, Brinkman filed motions to set aside entry of default against him and

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a motion to dismiss defendants Carey Daly’s and Randall Lanham’s (collectively,

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“Defendants”) claims against Brinkman (the “Motions”).

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2.

Prior to the hearing, the Court issued a tentative ruling (“Tentative”) which would have

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granted Mr. Brinkman’s Motions in their entirety, while allowing Defendants the costs of
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seeking an entry of default against Mr. Brinkman and opposing the Motion. Docket no.

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156.

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3.

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On May 6, 2011, a hearing was held on the Motions and the Court granted the motion to
set aside entry of default against Brinkman, denied the motion for dismissal of the claims

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against Brinkman without prejudice and allowed Defendants until May 25, 2011 to amend

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the third party complaint as it relates to Brinkman. Docket No. 159.

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4.

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Defendants have not yet filed the amended third party complaint (“Amended Third Party
Complaint”) and, therefore, the issues are not ripe for settlement.

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5.

Brinkman has no knowledge regarding the amendments Defendants intend to make and

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Brinkman cannot reasonably engage in a meaningful settlement conference until

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Brinkman is aware of the accusations made against him.

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6.

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Brinkman has not and cannot file a responsive pleading to the Amended Third Party
Complaint until after it is filed, however it is highly likely Brinkman will file a motion to

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dismiss the claims against him and the Court will not have ruled on such motion before
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the Settlement Conference.

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///

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///

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STATEMENT OF NON-RIPE ISSUES AND JURISDICTION ISSUES RELATING TO SETTLEMENT CONFERENCE

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7.

Brinkman is considering filing counterclaims against Daly and Lanham and those claims
would not be filed or at issue before the Settlement Conference.

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Respectfully submitted,
Dated: May 19, 2011

BRINKMAN PORTILLO, PC

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By:
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S
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UNIT
ED

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Laura J. Portillo
Attorneys for Daren R. Brinkman

D
DENIE

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FO

LI

ER

H

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RT

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Dated: 5/25/2011

A

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erman

Zimm
Bernard
Judge

NO

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/s/ Laura J. Portillo

RT
U
O

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ISTRIC
ES D
TC
AT
T

R NIA

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N

D IS T IC T
R

OF

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STATEMENT OF NON-RIPE ISSUES AND JURISDICTION ISSUES RELATING TO SETTLEMENT CONFERENCE

CERTIFICATE OF SERVICE

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STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
The undersigned certifies and declares as follows:
I am employed in the City of Westlake Village and County of Los Angeles, in the State of
California. I am over the age of 18 and am not a party to the within action. I am employed by
Brinkman Portillo, PC whose business address is 4333 Park Terrace Dr., Ste 205, Westlake Village,
California 91361.
On May 19, 2011, I served the following document described as:

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STATEMENT OF NON-RIPE ISSUES AND JURISDICTION ISSUES RELATING TO
SETTLEMENT CONFERENCE
On the interested parties in this action

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[ X ] by placing [
follows:

] the original [ X ] a true and correct copy thereof enclosed in sealed envelopes as

SEE ATTACHED SERVICE LIST

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[ X ] I deposited such envelope in a United States Postal Service Drop Box at Westlake Village,
California. The envelopes were mailed with postage fully prepaid.

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[ ] I am readily familiar with the firm’s practice of collecting and processing correspondence
for mailing. Under that practice it would be deposited with a United States Postal Service Drop Box
on that same day with postage fully prepaid at Westlake Village, California in the ordinary course of
business. I am aware that on motion of the party served, service presumed invalid if postal
cancellation date or postage meter date is more than one day after the date of deposit of mailing in
affidavit.
[ X ] (Federal) I declare under penalty of perjury under the laws of the United States of
America that the forgoing is true and correct.

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Executed on this 19th day of May 2011, at Westlake Village, California.

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Orson Baumann

/s/ Orson Baumann

SERVICE LIST

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By Electronic Mail:
Christopher Ralph Miller
David Patrick Nemecek , Jr

[e-mail]
[e-mail], [e-mail]

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Gregory Armand Rougeau , Esq

[e-mail]

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Jessica R. MacGregor

[e-mail], [e-mail]

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Laura Juanita Portillo

[e-mail]

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Michael Lawrence Schrag

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Paul E. Manasian

[e-mail], [e-mail]

[e-mail], [e-mail]

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By Overnight Mail:
Magistrate Judge Joseph C. Spero
U.S. District Court
450 Golden Gate Ave, Box 36060
San Francisco, CA 94102

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By U.S. Mail:
Thomas J. Fleming
Olshan Grundman Frome Rosenzweig & Wolosky LLP
65 East 55th Street
New York, NY 10022