Vivoteck USA, Inc. v. 4XEM Corporation, Inc.

Filing 28

JOINT CASE MANAGEMENT STATEMENT AND ORDER by Judge Paul S. Grewal granting 20 . (psglc1S, COURT STAFF) (Filed on 9/3/2014)

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Mark R. Figueiredo, Esq. (State Bar No. 178850)
Elias E. Salameh, Esq. (State Bar No. 251871)
STRUCTURE LAW GROUP, LLP
1754 Technology Drive, Suite 135
San Jose, California 95110
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff
VIVOTEK USA, INC.

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Richard J. Mooney, Esq. (State Bar No. 176486)
RIMON P.C.
One Embarcadero Center #400
San Francisco, CA 94111
Telephone: [phone]
[e-mail]
Attorneys for Defendants
4XEM CORPORATION, INC. and JOHN
FORTIER

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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VIVOTEK USA, INC., a California
corporation,
Plaintiff,

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CASE NO. CV 13-04452 PSG
JOINT CASE MANAGEMENT
STATEMENT AND [PROPOSED] ORDER

v.
Date: January 28, 2014
Time: 10:00 a.m.
4XEM CORPORATION, INC.,
incorporated under the laws of Canada; and Dept.: 5
Judge: Hon. Paul S. Grewal
JOHN FORTIER, an individual, doing
business as 4XEM USA,

Defendants.

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-1JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER

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The parties to the above-entitled action jointly submit this JOINT CASE

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MANAGEMENT STATEMENT AND [PROPOSED] ORDER pursuant to the Standing Order

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for All Judges of the Northern District of CA, dated July 1, 2011 and Civil Local Rule 16-9.

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1.

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Jurisdiction & Service
This Court has jurisdiction over this action under 28 U.S.C. § 1332 because there is

diversity of citizenship and the matter in controversy exceeds, exclusive of interests and costs,
the sum of $75,000. Plaintiff Vivotek USA, Inc. (“Plaintiff”) is a California corporation, having
its principle place of business located at 2050 Ringwood Avenue, San Jose, CA 95131.

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Defendant 4XEM Corporation, Inc. (“4XEM CANADA”) is a business entity incorporated under
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the laws of Canada, having its principle place of business at 17 Easton Road, Unit 6, Brantford,
Ontario N3P 1J4, Canada. Defendant John Fortier is not a citizen or resident of California. He
is a citizen of Ontario, Canada, and Plaintiff alleges (and Defendants deny) that Mr. Fortier is
also a citizen of Nevada.
Defendant 4XEM CANADA was served with the summons and complaint on December

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4, 2013. 4XEM CANADA answered the complaint on December 24, 2013. Plaintiff alleges that

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valid service was made on Defendant Fortier on October 9, 2013. No timely response to this

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service was received, and a default was taken on November 15, 2013. Fortier subsequently filed

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a motion to set aside default on December 24, 2013. Fortier contests that he was validly served.

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The motion was not opposed and will come on for a hearing on January 28, 2014. No additional

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parties remain to be served.

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2.

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Facts
Plaintiff has alleged the following factual background. Plaintiff develops, manufactures

and sells video surveillance security equipment and related equipment and software. These
products are sold through a world-wide network of authorized distributors. Defendants are
resellers of surveillance and other electronics products. Through June, 2013, Defendants were
authorized distributors of Plaintiff’s products. During that period, Defendants placed purchase
orders for Plaintiff’s products. Pursuant to those purchase orders Plaintiff provided Defendants
-2JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER

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with shipments of products. Within the past 2 years, Defendants made payments in the

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aggregate amount of $262,497.95 towards the accounts receivable incurred under their purchase

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orders with Plaintiff. After application of payments, Defendants have an unpaid balance of

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$314,008.46 due and owing to Plaintiff. Plaintiff has demanded repayment of this balance.

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Defendants have failed and refused to pay this sum, and the amount of $314,008.46 remains due
and owing to Plaintiff, exclusive of interest.

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Through June, 2013, Defendants were authorized to make certain consignment sales of
Plaintiff’s products whereby Defendants would arrange for the sale of Plaintiff’s products to a

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third party, the third party would pay Plaintiff directly for these products, and Plaintiff would
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then pay Defendants a percentage thereof. One such third party was Ingram Micro, a technology
distribution company. In or about February, 2013, Plaintiff shipped certain products to Ingram
Micro on behalf of Defendants. In violation of their consignment agreement with Plaintiff,
Defendants received payment directly from Ingram Micro. The portion of this sale that would

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have been retained by Plaintiff, less the payment that would have been made to Defendants, is

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$67,712. Plaintiff has demanded payment of this balance. Defendants have failed and refused to

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pay this sum, and the entire amount remains due and owing to Plaintiff, exclusive of interest.
Defendant 4XEM CANADA has denied the principal allegations of the complaint (while

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acknowledging that 4XEM CANADA and Plaintiff had a business relationship). If the

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unopposed motion to set aside the default as to Mr. Fortier is granted, Mr. Fortier will deny the

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principal allegations of the complaint.

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3.

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Legal Issues
The parties do not anticipate any novel or particularly complicated legal issues at this

stage. Plaintiff’s complaint raises claims for breach of contract, common counts, quantum
valebant and conversion. These issues will be largely decided based on the facts of the matter.
Although Defendant believes that certain of the claims are not properly pleaded, neither Plaintiff
nor Defendants believe there will be any significant dispute regarding legal issues.

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4.

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Pending Motions:

Motions

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Defendant Fortier’s motion to set aside default: Mr. Fortier filed the motion on

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December 24, 2013. Plaintiff did not respond. Mr. Fortier filed a brief “reply” on January 14,

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2014. The motion is set for hearing on January 28, 2014.
Plaintiff’s Anticipated Motions:

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Plaintiff anticipates possibly filing a motion for summary judgment and a motion for
right to attach order and writ of attachment. However, discovery and pre-trial motions may be

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filed as needed.
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Defendants’ Anticipated Motions:
Defendant may file a motion for summary judgment or for partial summary judgment.

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5.

The parties do not anticipate any specific amending of the pleadings at this time.

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Amendment of Pleadings

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Evidence Preservation

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The parties certify that they have reviewed the Guidelines Relating to the Discovery of

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Electronically Stored Information. The parties further certify that they have met and conferred

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pursuant to F.R.C.P. 26(f).

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7.

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Disclosures
The parties have complied with the initial disclosure requirements of F.R.C.P. 26.

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Counsel for Plaintiff and Defendants completed an initial document exchange on January 13,

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2014. The parties are in the process of reviewing the documents disclosed as part of this initial

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document exchange, but anticipate that upon the completion of such a review each side will be

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deemed to be in compliance with the initial disclosure requirements.

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Discovery
No discovery has been taken to date. The parties anticipate propounding written

discovery and taking the depositions of, including but not limited to, the corporate
representatives of Plaintiff, Defendant 4XEM CANADA, and individual defendant Fortier.
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No class action certification is anticipated in this matter.
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Related Cases
There are no related cases.

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Class Actions

Relief
Plaintiff is claiming damages in the sum of $381,720, or as according to proof. These

damages are calculated as per the statement of facts, above, and as described in Plaintiff’s
complaint. Plaintiff is also claiming all applicable interest, costs of suit, attorneys’ fees, punitive

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damages, and all other and further relief as the court may deem just and proper.
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Defendants contest liability, and contest the amount of damages alleged, should liability

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be established.
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Settlement and ADR
It is anticipated that written discovery will provide a basis from which the parties can

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explore settlement. The parties anticipate pursuing mediation, or some other mutually agreeable

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form of ADR, after initial written discovery proceeds.

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13.

Consent to Magistrate Judge For All Purposes
All parties consent to have a magistrate judge conduct all further proceedings, including

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trial and entry of judgment.

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14.

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Not applicable.
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Narrowing of Issues
The parties anticipate that certain issues in this matter may be suitable for narrowing,

either through agreement or motion, following the completion of written discovery.
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Other References

Expedited Trial Procedure
Not applicable.

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Scheduling
The parties propose the following pretrial schedule:
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JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER

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Fact Discovery Cutoff: June 20, 2014

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Designation of Experts with Reports: July 18, 2014

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Designation of Rebuttal Experts (if any) with Reports: August 1, 2014

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Expert Discovery Cutoff: August 29, 2014

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Last Day for Hearing on Dispositive Motions: October 3, 2014

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Final Pretrial Conference: November 7, 2014
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Trial
All parties request a trial by jury. Trial is anticipated to last one week.

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Disclosure of Non-party Interested Entities or Persons

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Plaintiff: Vivotek Holding; Wen-Chang Chen; Hung-Chung Hu; and Chih-Chung Lan.
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Defendants: John Philip Fortier; and Christopher Todd Schaus.

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Other
Not applicable.

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Dated: January 21, 2014

STRUCTURE LAW GROUP, LLP

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By: ___/s/______________________
Mark R. Figueiredo, Esq.
Attorneys for Plaintiff
VIVOTEK USA, INC.

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Dated: January 21, 2014

RIMON, P.C.

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By: ___/s/______________________
Richard Mooney, Esq.
Attorneys for Defendants
4XEM CORPORATION, INC. and JOHN
FORTIER

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-6JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER