Bemo USA Corporation et al v. Jake's Crane, Rigging & Transport International, Inc.

Filing 94

ORDER Granting 92 Motion to Extend Time. IT IS ORDERED that defendant shall have until 11/28/2017, to file an opposition to the motion, and plaintiff shall have until 12/5/2017, to file a reply. The hearing on 90 the Motion to Compel is set for 10:30 a.m., 12/19/2017. Signed by Magistrate Judge Peggy A. Leen on 11/28/2017. (Copies have been distributed pursuant to the NEF - MR)

Case 2:08-cv-00745-JCM-PAL Document 92 Filed 11/13/17 Page 1 of 4

1 Marquis Aurbach Coffing
Albert G. Marquis, Esq.
2 Nevada Bar No. 1919
Chad F. Clement, Esq.
3 Nevada Bar No. 12192
James Beckstrom, Esq.
4 Nevada Bar No.14032
10001 Park Run Drive
5 Las Vegas, Nevada 89145
Telephone: [phone]
6 Facsimile: [phone]
[e-mail]
7 [e-mail]
[e-mail]
8
Attorneys for Defendant Jake’s
9
UNITED STATES DISTRICT COURT
10
BEMO USA CORPORATION, et al.,
10001 Park Run Drive
Las Vegas, Nevada 89145
[phone] FAX: [phone]

MARQUIS AURBACH COFFING

DISTRICT OF NEVADA
11
12
Case Number:
13

Plaintiff,
2:08-cv-00745-JCM-PAL

14
vs.
15
16 JAKE’S CRANE, RIGGING &
TRANSPORT INTERNATIONAL, INC., et
17 al.,

MOTION TO EXTEND TIME TO FILE
OPPOSITION TO
PLAINTIFF’S MOTION TO COMPEL
[ECF No. 90]
(SECOND REQUEST)

18
19

Defendant.

20
21

Jake’s Crane, Rigging & Transport International, Inc., as well as the other entities

22 (collectively, “Jake’s”) by and through its counsel of record Albert G. Marquis, Esq., Chad
23 F. Clement, Esq., and James Beckstrom, Esq., of the law firm of Marquis Aurbach Coffing,
24
25

hereby submits its Motion to Extend Time to File its Opposition to Plaintiff’s Motion to
Compel from its current due date, that being Monday, November 13, 2017, for fourteen (14)

26
calendar days; which would make the due date November 28, 2017. This Motion is made
27
Page 1 of 4
MAC:13363-015 3248619_1.docx 11/13/2017 7:10 PM

Case 2:08-cv-00745-JCM-PAL Document 92 Filed 11/13/17 Page 2 of 4

1 and based upon the papers and pleadings on file herein and the following Memorandum of
2 Points and Authorities. This motion is filed on November 13, 2017. See LR 6-1.
3

MEMORANDUM OF POINTS AND AUTHORITIES

4 I.

INTRODUCTION

5

Jake’s hereby moves this Court for a two week extension of time to file an

6 Opposition to Bemo USA Coporation’s Motion to Compel Compliance with Subpoena
7 Duces Tecum to Rich Wightman & Company. This Motion is supported by good cause as
8 indicated by the Declaration of Chad Clement, Esq., attached hereto, and made without the
9 intent to delay, hinder, or frustrate proceedings.
FACTS RELEVANT TO THIS REQUEST

11
10001 Park Run Drive
Las Vegas, Nevada 89145
[phone] FAX: [phone]

MARQUIS AURBACH COFFING

10 II.

The instant Motion follows diligent efforts by the counsel for Jake’s to timely

12 resolve the underlying objections to the subpoena duces tecum to Rich Wightman &
13 Company (“Wightman”) without judicial intervention. Counsel has diligently worked with
14 opposing counsel Phillip Varricchio, Esq. and Rachel J. Holzer, Esq., in an attempt to avoid
15 having to file the instant Motion to no avail.
16

The Subpoena Duces Tecum was issued to Wightman, a non-party accountant for

17 Jake’s, seeking production of records on February 1, 2017. Within that Subpoena, Plaintiff
18 sought production of nearly twenty-five years of documents relating to six non-party
19 entities, containing no proximal limitation. Additionally, the Subpoena sought information
20 that contained privileged accountant-client information, as to the same six non-party entities.
21 The subpoena requested Wightman produce:
22
23
24
25
26
27

“[A]ny and all documentation of financial records (including but not limited
to tax returns, bank statements, income statements, general deposits, balance
sheets, patents, patent license agreements, patent assignments) which name,
benefit and/or identify the following entities: (1) Jake’s Crane Rigging and
Transport International; (2) Construction Management Co.; (3) Ganesh, LLC;
(4) Ganesh II, LLC; (5) Robb Technologies, LLC; (6) Transworld
Manufacturing Company; and (7) Lift Equipment Certification Company,
Inc.”
See Exhibit 1, attached to ECF DKT. No. 90.
Page 2 of 4
MAC:13363-015 3248619_1.docx 11/13/2017 7:10 PM

Case 2:08-cv-00745-JCM-PAL Document 92 Filed 11/13/17 Page 3 of 4

1

On February 10, 2017, counsel for Wightman, Frank Ellis, Esq. served a written

2 objection pursuant to FRCP 45(2)(B). Additionally, Jake’s served a written objection on
3 March 6, 2017.

Following the written objections by both Jake’s and Wightman, Plaintiff

4 had limited contact with Jake’s or Wightman for almost eight months.

Based on the

5 understanding the parties were working towards an amicable solution to narrow the scope
6 and proximity of the requests, counsel for both Jake’s and Wightman waited for Bemo to
7 provide further information as to how they would agree to narrow the requests at issue.
8

On October 18, 2017, Bemo, after months of no communication with Jake’s or

9 Wightman, filed the underlying Motion to Compel. As set forth in the Declaration of Chad

11 good faith efforts to contact his clients. Additionally, Jake’s counsel has reached out to
10001 Park Run Drive
Las Vegas, Nevada 89145
[phone] FAX: [phone]

MARQUIS AURBACH COFFING

10 Clement, Esq., since the filing of Bemo’s Motion to Compel, Jake’s has made numerous

12 Bemo in an attempt to narrow the scope of information requested and produce the requested
13 information without judicial intervention.

However, based on counsel’s current trial

14 schedule and Mr. Ellis being out of the jurisdiction from November 6, 2017 through
15 November 10, 2017, counsel has been unable to meaningfully discuss the underlying
16 requests. During this time, Counsel for Jake’s has been working diligently to discuss the
17 requests with Jake’s, but due to conflicting schedules, over twenty-five years of documents
18 being requested, and the fact the subpoenaed entities have different ownership structures,
19 counsel has been unable to fully investigate any opposition to such requests.
20

On November 3, 2017, Bemo, Wightman, and Jake’s stipulated to extend the

21 Opposition Deadline to November 13, 2017, in order for Jake’s and Wightman to further
22 contact their clients and narrow the scope of information requested. However, as indicated
23 supra, because of conflicting schedules between Wightman and Jake’s counsel, as well as
24 their respective clients, counsel has been unable to obtain such information before the
25 looming November 13, 2017 deadline. On November 13, 2017, counsel for Jake’s contacted
26 counsel for Bemo by telephone and email to request a stipulation under the above noted
27 circumstances. However, counsel was unwilling to extend such extension. Additionally, on
Page 3 of 4
MAC:13363-015 3248619_1.docx 11/13/2017 7:10 PM

Case 2:08-cv-00745-JCM-PAL Document 92 Filed 11/13/17 Page 4 of 4

1 November 13, 2017, the James A. Beckstrom, Esq., again contacted Bemo’s counsel Phillip
2 Varricchio, Esq. and Rachel Holzer, Esq., by electronic mail and telephone to express the
3 reasons for delay and to ask for a two week continuance. However, Bemo was again
4 unwilling to extend such extension and waited until 3:55 PM to inform Jake’s of their
5 refusal to extend the two week continuance.
6 III.

LEGAL ARGUMENT

7

Pursuant to LR 6-1, a Court may grant an extension of time upon a showing of good

8 cause. As indicated by the Declaration of Chad Clement, Esq., good cause exists and
9 therefore, the Motion to Extend Time should be granted.
CONCLUSION

11
10001 Park Run Drive
Las Vegas, Nevada 89145
[phone] FAX: [phone]

MARQUIS AURBACH COFFING

10 IV.

Based on the foregoing, Jake’s respectfully asks this Court to grant a two week

12 extension to file an opposition to the Motion to Compel, with the new deadline to be
13 November 28, 2017.
14

DATED this 13th day of November, 2017.

15

MARQUIS AURBACH COFFING

16
17

By___/s/ Chad F. Clement _______
Albert G. Marquis, Esq.
Nevada Bar No. 1919
Chad F. Clement, Esq.
Nevada Bar No. 12192
James Beckstrom, Esq.
Nevada Bar No.14032
10001 Park Run Drive
Las Vegas, Nevada 89145
Attorneys for Defendants

18
19
20
21
22
23
24
25
26
27
Page 4 of 4

MAC:13363-015 3248619_1.docx 11/13/2017 7:10 PM

Case 2:08-cv-00745-JCM-PAL Document 92-1 Filed 11/13/17 Page 1 of 3

1
2

DECLARATION OF CHAD F. CLEMENT, ESQ., IN SUPPORT OF MOTION TO
EXTEND TIME TO FILE OPPOSITION TO MOTION TO COMPEL COMPLIANCE
WITH SUBPOENA DUCES TECUM TO RICH WIGHTMAN & COMPANY

3

Chad F. Clement, Esq., declares as follows:

4

1.

I am over the age of 18 years and have personal knowledge of the facts stated

5

herein, except for those stated upon information and belief, and as to those, I believe them to be

6

true. I am competent to testify as to the facts stated herein in a court of law and will so testify if

7

called upon.

8

2.

I am a Director with the law firm of Marquis Aurbach Coffing (“MAC”), counsel

other entities (collectively, “Jake’s”) in this case. I make this Declaration in support of the

11

Motion to Extend Time to File Opposition to Motion to Compel Compliance with Subpoena

12
10001 Park Run Drive
Las Vegas, Nevada 89145
[phone] FAX: [phone]

of record for defendant Jake’s Crane, Rigging & Transport International, Inc., as well as the

10
MARQUIS AURBACH COFFING

9

Duces Tecum (“Motion”).

13
14
15
16
17

3.

The Subpoena Duces Tecum (“Subpoena”) was issued to Wightman, a non-party

accountant for Defendant Jake’s Crane, seeking production of records on February 1, 2017.
4.

On February 10, 2017, counsel for Wightman, Frank Ellis, Esq. served a written

objection pursuant to FRCP 45(2)(B).
5.

Additionally, Jake’s served a written objection on March 6, 2017. The basis for

18

the objection was on the grounds the information requested (1) calls for accountant-client

19

privileged information, NRS 49.125-49.2.05, as it calls for “any and all documentation of

20

financial records . . . ;” (2) calls for sensitive, confidential, and/or proprietary personal and

21

business information, as it calls for financial information from entities who were not parties to

22

the case and are not subject to the judgment; (3) is overly broad and unduly burdensome, as the

23

request contains no time limitation, is extremely broad, calling for “any and all documentation of

24

financial records . . . which name, benefit and/or identify [7 entities],” and calls for information

25

from entities who were not parties to the case and are not subject to the judgment; (4) is

26

duplicative, as some of the requested documents have already been produced; (5) is vague and

27

ambiguous, given its breadth and scope; (6) calls for irrelevant information, given its breadth and

28

scope; and (7) seeks case or liability related discovery, not post-judgment discovery.
Page 1 of 3
MAC:13363-015 3248648_1.docx 11/13/2017 7:12 PM

Case 2:08-cv-00745-JCM-PAL Document 92-1 Filed 11/13/17 Page 2 of 3

1
2
3
4
5
6
7
8
9

6.

Following the written objections by both Jake’s and Wightman, Bemo’s counsel

agreed to narrow the scope of its requests within the Subpoena to avoid judicial intervention.
7.

Counsel for Bemo failed to contact the undersigned for approximately eight

months after the discussions.
8.

On or about October 18, 2017, Bemo filed a Motion to Compel Compliance with

Subpoena Duces Tecum to Rich Wightman & Company.
9.

Counsel for Bemo did not have a substantive meet and confer with the

undersigned before filing the Motion to Compel.
10.

On October 31, 2017, the undersigned had a telephone conversation with Bemo

counsel Phillip Varricchio, where the Subpoena requests were discussed at length and the parties

11

agreed to attempt to narrow the scope of the requests.

12
10001 Park Run Drive
Las Vegas, Nevada 89145
[phone] FAX: [phone]

MARQUIS AURBACH COFFING

10

11.

Following the October 31, 2017, telephone call with opposing counsel, the

13

undersigned diligently attempted to contact Jake’s to discuss the information requested in the

14

Subpoena. However, because of conflicting schedules, the undersigned has been unable to

15

meaningfully discuss the requested information contained with the Subpoena before the

16

November 13, 2017 deadline.

17

12.

Additionally, the undersigned has been unable to discuss the feasibility of

18

producing the requested information with Wightman’s counsel or determine what types of

19

information Wightman has in his possession.

20
21
22

13.

Upon information and belief of the undersigned, a large number of the documents

requested within the Subpoena are subject to accountant-client privilege.
14.

On November 3, 2017, Bemo, Wightman, and Jake’s stipulated to extend the

23

Opposition Deadline to November 13, 2017, in order for Jake’s and Wightman to further contact

24

their clients and narrow the scope of information requested.

25

15.

Because of conflicting schedules between Wightman and Jake’s counsel, as well

26

as their respective clients, and a shortened week due to Veterans Day, the undersigned has been

27

unable to obtain such information before the looming November 13, 2017 deadline.

28
Page 2 of 3
MAC:13363-015 3248648_1.docx 11/13/2017 7:12 PM

Case 2:08-cv-00745-JCM-PAL Document 92-1 Filed 11/13/17 Page 3 of 3

1

16.

Additionally, the undersigned was subject to prescheduled depositions, hearings,

2

and conferences the entire week November 6, 2017, and Frank Ellis, counsel for Wightman was

3

out of the office the week of November 6, 2017.

4

17.

To avoid filing the instant Motion, on November 13, 2017 the undersigned

5

contacted Bemo counsel Phillip Varricchio, Esq. and Rachel Holzer, Esq., by telephone to

6

express the reasons for delay and to ask for a two week continuance, but was unable to reach

7

counsel either Mr. Varricchio or Ms. Holzer.

8

18.

Additionally, on November 13, 2017, the undersigned’s associate James A.

Beckstrom, Esq., again contacted Bemo’s counsel Phillip Varricchio, Esq. and Rachel Holzer,

10

Esq., by electronic mail and telephone to express the reasons for delay and to ask for a two week

11

continuance.

12
10001 Park Run Drive
Las Vegas, Nevada 89145
[phone] FAX: [phone]

MARQUIS AURBACH COFFING

9

13
14
15
16

19.

Counsel for Bemo refused any such continuance to both requests, therefore

necessitating the instant Motion.
Pursuant to 28 U.S.C. § 1746 and NRS § 53.045, I declare under penalty of perjury, that
the foregoing is true and correct.
Dated this 13th day of November, 2017.

17
18
19

/s/ Chad F. Clement
Chad F. Clement, Esq.

20
21
22
23
24
25
26

IT IS ORDERED that defendant shall have until November 28, 2017, to file an
opposition to the motion, and plaintiff shall have until December 5, 2017, to file a reply.
The hearing on the Motion to Compel (ECF No. 90) is set for 10:30 a.m., December
19, 2017.
Dated: November 28, 2017
_____________________________
Peggy A. Leen
United States Magistrate Judge

27
28
Page 3 of 3
MAC:13363-015 3248648_1.docx 11/13/2017 7:12 PM