Messerli et al v. Root9B Technologies, Inc et al
ORDER by Magistrate Judge Michael E. Hegarty on 10/14/2015 granting 13 Motion to Vacate Scheduling Conference; denying 14 Motion of Ty Messerli for Appointment as Lead Plaintiff and Approval of Choice of Counsel; granting in part and denyin g in part 15 Motion of David Hampton for Appointment as Lead Plaintiff and Approval of Selection of Counsel. The Scheduling Conference currently set for 11/3/2015 is rescheduled to 11/23/2015 at 10:15 a.m. in Courtroom A-501 of the Alfred A. Arraj United States Courthouse. (mdave, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02152-MEH
TY MESSERLI, on behalf of himself and others similarly situated,
ROOT 9B TECHNOLOGIES, INC.,
JOSEPH J. GRANO, JR.,
KENNETH T. SMITH, and
Michael E. Hegarty, United States Magistrate Judge.
Before the Court are the Joint Motion to Vacate Scheduling Conference [filed October 8,
2015; docket #13], the Motion of Ty Messerli for Appointment as Lead Plaintiff and Approval of
Choice of Counsel [filed October 9, 2015; docket #14], and the Motion of David Hampton for
Appointment as Lead Plaintiff and Approval of Selection of Counsel [filed October 9, 2015; docket
#15]. The latter two motions were filed originally on August 24, 2015 in the United States District
Court for the Central District of California before the case was transferred to this Court, and the
motions remain pending here. The record reflects that Ty Messerli filed a “Notice of NonOpposition to Competing Lead Plaintiff Motion” in response to David Hampton’s motion on August
31, 2015. See docket #1-24. The Defendants filed nothing in response to the pending motions.
Accordingly, the [Unopposed] Motion of David Hampton for Appointment as Lead Plaintiff
and Approval of Selection of Counsel [filed October 9, 2015; docket #15] is granted in part and
denied in part (see infra) and the Motion of Ty Messerli for Appointment as Lead Plaintiff and
Approval of Choice of Counsel [filed October 9, 2015; docket #14] is denied as moot.
Having considered the provisions of Section 21D(a)(3)(B) of the Private Securities Litigation
Reform Act (“PSLRA”), 15 U.S.C. § 78u-4(a)(3)(B), the Court determines that Mr. Hampton is an
adequate Plaintiff and satisfies the requirements of the PSLRA. Thus, the Court appoints David
Hampton as Lead Plaintiff to represent the interests of the class, as defined in the operative pleading.
The Clerk of the Court is directed to add Mr. Hampton as a Plaintiff in this case.
Pursuant to Section 21D(a)(3)(B)(v) of the PSLRA, 15 U.S.C. § 78u-4(a)(3)(B)(v), Mr.
Hampton has selected and retained the law firm of Levi & Korsinsky LLP to serve as Lead Counsel
The Court approves Mr. Hampton’s selection of Lead Counsel. Mr. Hampton also has selected
Shepherd, Finkelman, Miller, & Shah LLP to serve as “Liaison Counsel”; however, Mr. Hampton
has provided insufficient cause and/or explanation to justify approval of “Liaison Counsel” in this
Lead Counsel shall have the following responsibilities and duties, to be carried out either
personally or through counsel whom Lead Counsel shall designate:
coordinate the briefing and argument of any and all motions;
coordinate the conduct of any and all discovery proceedings;
coordinate the examination of any and all witnesses in depositions;
coordinate the selection of counsel to act as spokesperson at all pretrial conferences;
call meetings of the Plaintiffs’ counsel as he deems necessary and appropriate from
time to time;
coordinate all settlement negotiations with counsel for Defendants;
coordinate and direct the pretrial discovery proceedings and the preparation for trial
and the trial of this matter, and to delegate work responsibilities to selected counsel
as may be required;
coordinate the preparation and filings of all pleadings; and
supervise all other matters concerning the prosecution or resolution of the claims
asserted in this case.
No motion, discovery request, or other pretrial proceedings shall be initiated or filed by any
Plaintiffs without the approval of Lead Counsel, so as to prevent duplicative pleadings or discovery
by Plaintiffs. No settlement negotiations shall be conducted without the approval of the Lead
Counsel. Service upon any plaintiff of all pleadings, motions, or other papers in the case, except
those specifically addressed to a plaintiff other than Lead Plaintiff, shall be completed upon service
of Lead Counsel. Lead Counsel shall be the contact between Plaintiffs’ counsel and Defendants’
counsel, as well as the spokespersons for all Plaintiffs’ counsel, and shall direct and coordinate the
activities of Plaintiffs’ counsel. Lead Counsel shall be the contact between the Court and Plaintiffs
and their counsel.
In light of this order, the Joint Motion to Vacate Scheduling Conference [filed October 8,
2015; docket #13] is granted as follows. The Scheduling Conference currently set for November
3, 2015 is vacated and rescheduled to November 23, 2015, at 10:15 a.m. in Courtroom A-501,
on the fifth floor of the Alfred A. Arraj United States Courthouse located at 901 19th Street, Denver,
Colorado. If this date is not convenient, counsel should confer with opposing counsel and contact
my Chambers to obtain an alternate date. Absent exceptional circumstances, no request for
rescheduling will be entertained unless made five business days prior to the date of the conference.
It is further ORDERED that counsel for the parties in this case are to hold a pre-scheduling
conference meeting and jointly prepare a proposed Scheduling Order in accordance with Fed. R.
Civ. P. 26(f) on or before November 2, 2015. Pursuant to Fed. R. Civ. P. 26(d), no discovery shall
be submitted until after the pre-scheduling conference meeting, unless otherwise ordered or directed
by the Court.
Dated at Denver, Colorado, this 14th day of October, 2015.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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