Intelligent Office System, LLC, The v. Virtualink Canada, Ltd. et al

Filing 32

ORDER denying 25 Motion for Leave to Allow Telephonic Testimony of Michael Jones, by Judge Christine M. Arguello on 2/9/2016.(vbarn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 15-cv-02724-CMA-MEH
THE INTELLIGENT OFFICE SYSTEM, LLC, a Colorado limited liability company,
Plaintiff,
v.
VIRTUALINK CANADA, LTD., a Canadian corporation, and
BRIAN MONTEITH,
Defendants.

ORDER DENYING MOTION FOR LEAVE TO ALLOW TELEPHONIC TESTIMONY
OF MICHAEL JONES AT PRELIMINARY INJUNCTION HEARING

Before the Court is Plaintiff Intelligent Office System, LLC’s Motion for Leave to
Allow Telephonic Testimony of Michael Jones, filed February 3, 2016. (Doc. # 25.)
Intelligent Office System, LLC (IO) requests that the Court permit Michael Jones to
testify by telephone at the Court’s Preliminary Injunction hearing, which will occur on
February 11 and 12, 2016. (Id.) Defendants Virtualink Canada and Brian Monteith
oppose the instant Motion. (Doc. # 31.)
IO asserts that telephonic testimony of Mr. Jones should be permitted in the
Court’s upcoming hearing because IO’s counsel “was not able to interview Mr. Jones
until February 2, 2016,” and “[t]his situation presents extraordinary circumstances in
terms of the timeliness of this Motion, especially considering the short time frame, just
over a month, between when the Hearing was scheduled and the date of the Hearing.”

(Doc. # 25 at 2.) It also states that “Michael Jones currently resides in Calgary,
Canada, and is, therefore, beyond the subpoena power of this Court. Moreover, as
undersigned counsel anticipates that Mr. Jones’ testimony will last less than an hour,
the travel costs from Calgary would be exorbitant for such a brief examination.” (Id.)
Finally, IO provides the following description of Mr. Jones’ anticipated testimony: “Mr.
Jones will testify, among other things, that his franchises failed as a result of the
defective cloud software implemented by Defendant Virtualink. Mr. Jones will also
testify that, in turn, Virtualink terminated his franchise rights and assumed his locations.”
(Id.)
In opposing the instant Motion, Virtualink argues that IO’s request is untimely,
and the Court agrees. Specifically, IO filed its Motion for a Preliminary Injunction on
December 21, 2015; the Court began communicating with counsel to set a hearing
almost immediately after this date; and the preliminary injunction hearing has been on
the Court’s (and counsels’) calendars since January 4, 2016. This Court’s Practice
Standards require any motion to appear by telephone to be filed “at least 21 days before
trial or hearing.” CMA Practice Standard 43.1(a)(1). Although the Court recognizes
there was a little more than a month between the hearing setting and the actual hearing,
such that it might not have been possible for IO’s counsel to comply with the letter of
this practice standard, IO’s waiting an entire month after the hearing had been set to file
the instant Motion – and doing so barely a week before the preliminary injunction
hearing – certainly does not comply with its spirit.

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Additionally, the Court’s practice standards also require that a movant provide a
“detailed description of all testimony which is proposed to be presented remotely.” CMA
Practice Standard 43.1(a)(1)(B) (emphasis added). Although the instant Motion failed to
do so, from what the Court can surmise, Mr. Jones’ testimony would have, at best,
tangential relevance to IO’s Motion for Preliminary Injunction. The gravamen of the
parties’ dispute at this juncture is whether IO properly terminated the Master License
Agreement (MLA) it signed with Virtualink. Virtualink indicates, however, that Mr. Jones
“abandoned his sub-franchisee businesses well in advance of IO’s purported
termination of [the Master Lease Agreement between itself] and Virtualink,” and the
Court cannot see how Mr. Jones’ testimony about his interactions with Virtualink (before
IO’s purported termination of the MLA) would aid the Court in determining whether IO
acted properly. Indeed, IO did not provide an affidavit or declaration from Mr. Jones in
support of its Motion for a Preliminary Injunction.
In sum, both because IO’s request is untimely, and because Mr. Jones’ testimony
would have no relevance as to the specific issue to be addressed by the Court in the
Preliminary Injunction hearing, the Court hereby DENIES the instant Motion (Doc. # 25).
Accordingly, Mr. Jones will not be permitted to testify telephonically at that hearing.
DATE: February 9, 2016
BY THE COURT:

_____________________________
CHRISTINE M. ARGUELLO
United States District Judge

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