BYW Franchise Development LLC v. JH Devine Investments 10, Inc. et al

Filing 14

ORDER Granting 13 Motion to Vacate hearing on 9 Motion for Preliminary Injunction scheduled for 10/7/11. Signed by Judge Gloria M. Navarro on 10/6/11. (Copies have been distributed pursuant to the NEF - EDS)

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Matthew J. Kreutzer, Esq.
Nevada Bar. No. 8834,
Jennifer A. Gores, Esq.
Nevada Bar No. 11383
ARMSTRONG TEASDALE LLP
3770 Howard Hughes Parkway, Suite 200
Las Vegas, Nevada 89169
Telephone: [phone]
Facsimile: 702.878.9995

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Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
BYW FRANCHISE DEVELOPMENT, a Nevada
limited liability company,
Plaintiff,
vs.
JH DEVINE INVESTMENTS 10, INC., a
California corporation, and CHERIE HUILLADE, a
California citizen,

CASE NO.: 2:11-CV-01568-GMN-GWF
MOTION TO VACATE
PRELIMINARY INJUNCTION
HEARING SET FOR FRIDAY,
OCTOBER 7, 2011

Defendants.

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Plaintiff BYW Franchise Development, LLC (“BYW”), by and through counsel, moves this

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Court to vacate the hearing set on BYW’s Motion for a Preliminary Injunction, which was set by the

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Court’s Order dated September 30, 2011. In support of this Motion, BYW states as follows:

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1.

On October 4, 2011, BYW’s counsel, Matthew Kreutzer, received a call from David

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Reaves, Esq., who is the Chapter 7 bankruptcy Trustee for the individual debtor, Tonja Demoff, in a

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case currently pending in the United States Bankruptcy Court for the District of Arizona, Case No.

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2:10-bk-00303-RTB. Mr. Reaves stated that it is his position that BYW is 100% owned by Ms.

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Demoff, and Ms. Demoff’s ownership interest in BYW constitutes the property of the bankruptcy

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estate pursuant to 11 U.S.C. § 541.

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2.

Mr. Reaves told BYW’s counsel that Ms. Demoff has no authority to act on behalf of

BYW, and that the actions of Ms. Demoff in filing this lawsuit have not been authorized by the
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bankruptcy estate, Mr. Reaves, or the Court. Mr. Reaves followed the telephone discussion with a

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letter to Mr. Kreutzer confirming the conversation. A copy of the letter from Mr. Reaves is attached

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hereto as “Exhibit 1.”

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3.

Ms. Demoff is the primary client contact for BYW, and is the individual who

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authorized BYW’s counsel to file the instant lawsuit. Mr. Reaves has not authorized plaintiff’s

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counsel to file or proceed with this lawsuit.

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4.

Due to the conflicting positions and instructions from Ms. Demoff and Mr. Reaves,

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plaintiff’s counsel is unable to proceed with representing BYW in this lawsuit or at the scheduled

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hearing until the issue of control of BYW has been resolved.

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WHEREFORE, BYW respectfully request that this Court vacate the preliminary injunction
hearing presently set for October 7, 2011.
Respectfully Submitted,
Dated this 5th day of October, 2011.

ARMSTRONG TEASDALE LLP

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By: /s/ Matthew J. Kreutzer___
Matthew J. Kreutzer
3770 Howard Hughes Parkway, Ste 200
Las Vegas, Nevada 89169
Telephone: [phone]
Facsimile: 702.878.9995
[e-mail]

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Attorneys for Plaintiff
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IT IS SO ORDERED this _____ day of October, 2011.

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Gloria M. Navarro
United States District Judge

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EXHIBIT 1