Bartech Systems International, Inc. v. Mobile Simple Solutions, Inc. et al

Filing 467

ORDER granting ECF No. 466 Stipulation for Extension of Joint Proposed Pretrial Order Deadline (Ninth Request). Proposed Joint Pretrial Order due by 6/11/2018. NO FURTHER EXTENSIONS WILL BE GRANTED. Signed by Magistrate Judge Nancy J. Koppe on 4/6/2018. (Copies have been distributed pursuant to the NEF - KW)

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Michael R. Kealy,
Nevada Bar No. 971
Ashley C. Nikkel,
Nevada Bar No. 12838
PARSONS BEHLE & LATIMER
50 W. Liberty Street, Suite 750
Reno, Nevada 89501
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
– and –

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Gregory T. Lawrence, Esq.
(Admitted Pro Hac Vice)
Kyle S. Kushner, Esq.
(Admitted Pro Hac Vice)
CONTI FENN & LAWRENCE LLC
36 S. Charles Street, Suite 2501
Baltimore, Maryland 21201
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Plaintiff/Counter-Defendant
BARTECH SYSTEMS INTERNATIONAL, INC.
UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BARTECH SYSTEMS INTERNATIONAL,
INC., a Delaware corporation,
Plaintiff,

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PARSONS
BEHLE &
LATIMER

vs.
MOBILE SIMPLE SOLUTIONS, INC., a
Delaware corporation, MOBILE SIMPLE
SOLUTIONS (IAS), INC., a Canadian
corporation, GEM SA, a Belgian corporation,
VINCENT TESSIER, an individual,
CHRISTELLE PIGEAT, an individual,
Defendants.

Case No. 2:15-cv-02422-MMD-NJK
STIPULATION AND ORDER FOR
EXTENSION OF JOINT PROPOSED
PRETRIAL ORDER DEADLINE
(Ninth Request)

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MOBILE SIMPLE SOLUTIONS, INC., a
Delaware corporation, VINCENT TESSIER,
an individual, CHRISTELLE PIGEAT, an
individual, GEM SA, a Belgian corporation,
Counterclaimants,
vs.
BARTECH SYSTEMS INTERNATIONAL,
INC., a Delaware corporation,

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Counter-defendant.

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Pursuant to the provisions of Federal Rule of Civil Procedure 6 and Local Rules IA 6-1, 7-1,

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and 26-4, Plaintiff and Counter-defendant Bartech Systems International, Inc. (“Bartech”) and

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Defendant and Counterclaimant GEM SA (“GEM”), by and through their attorneys, hereby

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stipulate and agree that an extension by sixty (60) days to June 11, 2018 of the deadline for

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submission of the proposed Joint Pretrial Order presently set for April 12, 2018 is necessary for
good cause shown. This is the ninth request for an extension of a scheduled deadline. The parties
agree that this will be the final extension of the Joint Pretrial Order deadline sought by either
Bartech or GEM.
STIPULATION

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GEM and Bartech jointly agree that an extension by sixty (60) days to June 11, 2018 of the

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deadline for submission of the proposed Joint Pretrial Order presently set for April 12, 2018 is

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necessary for good cause shown. A Motion to extend a deadline set by a Scheduling Order must be
supported by a showing of “good cause.” Fed. R. Civ. P. 6(b)(1)(A); see also LR 26-4. This
Court’s Order set the deadline for submission of the proposed Joint Pretrial Order for April 12,

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2018. See Order (ECF No. 459 at 1). The parties agree that the current deadline cannot reasonably

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be met due to recent developments that have arisen from discovery previously authorized by this

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Court, including the deposition of GEM’s corporate designee and the production by GEM of

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PARSONS
BEHLE &
LATIMER

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additional documents pursuant to this Court’s Order. See Order (ECF No. 459 at 22); Min. of Proc.

2 (ECF No. 423). Additionally, the parties further agree that the current deadline cannot reasonably
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be met because the parties must meet and confer with Defendant Tessier regarding completion of
the Joint Pretrial Order.
On February 12, 2018, this Court directed GEM to, among other things:

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[P]roduce documents in response to Plaintiff’s Requests for Production 7, 15 (for the
time period of September 1, 2016 to the present), 16 (excluding communications
between Defendant, Defendants Mobile Canada and Pigeat, and GBV), and 20 (for
the time period of August 1, 2016 – November 30, 2016), no later than March 12,
2018.

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Order (ECF No. 452 at 22). On February 27, 2018, Bartech deposed GEM’s corporate designee
without the foregoing documents. On March 12, 2018, GEM produced to Bartech pursuant to this

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Court’s Order over 500 pages of discovery, including certain documents related to GEM’s finances.
On February 27, 2018, Bartech learned during the deposition of GEM’s corporate designee

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15 that GEM transferred on December 23, 2017, among other things, the ABreez software to a wholly16 owned French subsidiary named Mobile Simple Software Services (France) (“Mobile France”).1
17 Since that time, the parties have worked diligently to resolve issues attendant to that transfer without
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Court intervention. GEM produced on March 5 and 7, 2018 certain documents related to GEM’s
transfer of ABreez to Mobile France. Bartech anticipates filing imminently a Consent Motion for
Leave to File the Third Amended Complaint and a Third Amended Complaint to add Mobile

22 Simple Software Services (France) as a defendant in these proceedings to ensure the enforceability
23 of any judgment and injunctive relief subsequently obtained in this matter (“Consent Motion”). The
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Bartech deposed GEM’s corporate designee one day after Bartech filed its Opposition to
GEM’s Request for Extension of Joint Proposed Pretrial Order Deadline (ECF No. 458). Bartech
has changed its position with respect to the Joint Pretrial Order deadline due to facts discovered
during the deposition of GEM’s corporate designee, documents produced by GEM pursuant to
this Court’s Order, and developments in Defendant Vincent Tessier’s bankruptcy case, as detailed
further herein.
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parties agree that said Consent Motion will resolve any issues arising from the transfer of ABreez to

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Mobile France.

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Bartech requested a second deposition of GEM’s corporate designee due to GEM’s
production of documents related to the transfer of ABreez to Mobile France and those produced
pursuant to this Court’s Order. GEM agreed to that deposition. The deposition will be held as soon

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as April 13, 2018. In addition, Bartech intends to supplement the previously produced report of its

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testifying damages expert, R. Christopher Rosenthal, based upon the documents recently produced

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by GEM and the second deposition of GEM’s corporate designee on those documents. Bartech has

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offered to make Mr. Rosenthal available to GEM for a deposition in light of that supplemental
report. GEM reserves the right to challenge or object to any supplemental report provided by Mr.

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Rosenthal.
The foregoing developments that have arisen from discovery previously authorized by this

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Court should be resolved before the parties are positioned to file the proposed Joint Pretrial Order.

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That is because the proposed Joint Pretrial Order requires the parties to, among other things, identify

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specific portions of deposition transcripts to be offered at trial. See LR 16-3(b)(10). The parties are

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unable to designate specific portions of deposition transcripts to be offered at trial where certain
depositions remain to be taken.
Separately, the parties agree that good cause exists for an extension by 60 days of the

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deadline to file the Joint Pretrial Order due to developments in Defendant Vincent Tessier’s Chapter

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7 bankruptcy proceeding (In re Tessier, Case No. 17-15946-led). Importantly, the Bankruptcy

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Court has scheduled a hearing for April 5, 2018 on the scope of a proposed Order that lifts the

25 automatic bankruptcy stay as to Defendant Tessier. That means that Defendant Tessier will become
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BEHLE &
LATIMER

active in this litigation as soon as April 5, 2018. The parties agree that a meet and confer with
Defendant Tessier regarding completion of the Joint Pretrial Order (i.e., the exchange of exhibits

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and objections) is necessary. And that meet and confer cannot happen until the bankruptcy stay is

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lifted.

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In addition, Bartech has filed against Defendant Tessier an adversary proceeding captioned
Bartech Systems International, Inc. v. Vincent Tessier, Adversary Proceeding No.: 2:18-ap-1009
(the “Adversary Proceeding”). Bartech has also filed a Motion to Withdraw the reference of that

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Adversary Proceeding to this Court. That Motion to Withdraw the Reference remains pending

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before the Chief Judge of this Court in Case No. 2:18-cv-00212-GMN. Should that Motion to

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Withdraw the Reference be granted and the Adversary Proceeding consolidated with this action,

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then Bartech will be required to prove its non-dischargeability claims in this case. That will impact,
among other portions of the Joint Pretrial Order, statements of contested or material issues of fact or

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law. See LR 16-3(b)(4)-(7).
The parties jointly propose the following schedule for completion of the Joint Pretrial Order
deadline by June 11, 2018:
Exchange of Exhibit Lists and
Portions of Deposition Transcripts to
Be Used at Trial

May 30, 2018

Exchange of Factual Admissions

June 1, 2018

Meet and Confer Regarding Factual
Admissions and Other Outstanding
Issues

June 5, 2018

Parties Exchange Final Versions of
Respective Contributions to the Joint
Pretrial Order

June 8, 2018

Bartech Will Compile Into One Joint
Pretrial
Order
the
Parties’
Respective Contributions and Send
the Final Version to Defendants for
Approval Before Filing

June 11, 2018

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BEHLE &
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CONCLUSION

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For the foregoing reasons, GEM and Bartech jointly agree that an extension by sixty (60)
days to June 11, 2018 of the deadline for submission of the proposed Joint Pretrial Order presently
scheduled for April 12, 2018 is necessary for good cause shown.
DATED:

April 5, 2018

DATED:

April 5, 2018

PARSONS BEHLE & LATIMER

GREENE INFUSO, LLP

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/s/ Michael R. Kealy
Michael R. Kealy, Esq.
Nevada Bar No. 971
Ashley C. Nikkel, Esq.
Nevada Bar No. 12838

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– and –

/s/ Keith W. Barlow
(Signed by filing attorney with permission of
counsel)
Michael V. Infuso, Esq.
Nevada Bar No. 7388
Keith W. Barlow, Esq.
Nevada Bar No. 12689
3030 South Jones Boulevard, Suite 101
Las Vegas, Nevada 89146
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]

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CONTI FENN & LAWRENCE LLC
Gregory T. Lawrence Esq.
(Admitted Pro Hac Vice)
Kyle S. Kushner, Esq.
(Admitted Pro Hac Vice)
Attorneys
for
Plaintiff/CounterDefendant
BARTECH SYSTEMS INTERNATIONAL,
INC.

Attorneys for Defendant/Counterclaimant
GEM SA

NO FURTHER EXTENSIONS WILL BE GRANTED.
IT IS SO ORDERED:

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_____________________________________
UNITED STATES DISTRICT JUDGE
UNITED STATES MAGISTRATE JUDGE

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PARSONS
BEHLE &
LATIMER

April 6, 2018
DATED: ______________________________

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