Roger Cleveland Golf Company Inc v. Prince et al

Filing 27

Consent MOTION to Amend/Correct 21 Scheduling Order, Terminate Motions,,,, by Christopher Prince, Prince Distribution LLC, Roger Cleveland Golf Company Inc. Response to Motion due by 4/8/2010 Proposed order is being emailed to chambers with copy to opposing counsel(McElwaine, John)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION Roger Cleveland Golf Company, Inc., Plaintiff, vs. Christopher Prince, Sheldon Shelley, and Prince Distribution, LLC. Defendants. ) ) ) ) ) ) ) ) ) ) Civil Action No. 2:09-2119-MBS

Consent Motion for Entry of Amended Scheduling Order

Pursuant to Local Civil Rule 6.01, the Plaintiff, Roger Cleveland Golf Company, Inc., with the consent of the Defendants Christopher Prince and Prince Distribution, LLC, 1 moves for the entry of an amended scheduling order so as to allow Bright Builders, Inc., a proposed new party to this suit, reasonable time to investigate the Plaintiff's claims and prepare its defenses. In support of this Motion, the parties would respectfully show the following: 1. On August 12, 2009, Plaintiff initiated this action for trademark infringement and

unfair competition relating to the sale of counterfeit Cleveland Golf brand golf clubs over the internet, specifically through websites owned by the defendants. On September 17, 2009,

Defendants Christopher Prince and Prince Distribution, LLC (collectively "Defendants") timely filed their Answer. 2. On September 19, 2009, the Court issued a Conference and Scheduling Order,

setting, among other things, deadlines to amend the pleadings by November 13, 2009, to complete discovery by March 15, 2010, and to select a jury by July 14, 2010. 3. On October 22, 2010, the Court, upon the request of the parties, entered a Consent

Amended Scheduling Order, setting, among other things, deadlines to amend the pleadings by
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Defendant Sheldon Shelley has failed to appear in this action and, as such, is in default.

December 14, 2009, to complete discovery by April 15, 2010, and to be called for trial beginning on August 16, 2010. 4. Since that time, Plaintiff has been diligently moving forward with both informal

and formal discovery. Plaintiff has met with and interviewed Defendant Sheldon Shelley, has issued third-party subpoenas to Microsoft and PayPal for records related to the Defendants' websites, and has served written discovery, including interrogatories, requests for production and requests for admission, on Defendants Christopher Prince and Prince Distribution, LLC. As the Defendants' responses are now past due, counsel for Plaintiff is working with Defendants' counsel to receive responses without having to burden the Court with a discovery dispute. 5. On February 18, 2010, the deposition of Defendant Christopher Prince was taken,

where, for the first time, Bright Builders, Inc.'s role in the creation and support of the business model and websites through which Plaintiff's trademarks were infringed was revealed. Plaintiff and its counsel were wholly unaware of Bright Builders, Inc. ("Bright Builders") and its integral role in the infringement complained of in the Complaint prior to this time. 6. On March 22, 2010, the parties filed a Consent Motion for Leave to Amend the

Complaint to add Bright Builders as a party to the suit. 7. In the event the Court grants the parties' motion, the parties propose that the

scheduling order governing this case be amended so as to allow Bright Builders reasonable time to prepare to defend itself at trial. Specifically, the parties propose that the scheduling order be amended to provide the following: a. Plaintiff shall file and serve the First Amended Complaint within thirty (30) days of the date of the Court's order granting Plaintiff leave to amend.

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b. Within thirty (30) days of service of the First Amended Complaint on Bright Builders, and in the event Bright Builders makes an appearance in this suit, a conference of the parties pursuant to Rule 26(f) shall be held. Within one week of said conference, the parties shall file an amended Rule 26(f) Report and serve their Rule 26(a)(1) initial disclosures. c. Discovery shall be completed by September 15, 2010. The current deadline for the completion of discovery is April 15, 2010. d. Trial shall occur during the term of court beginning January 1, 2011. The current trial date is during the term of court beginning August 16, 2010. In sum, the parties are seeking an approximate five (5) month extension on existing deadlines in order to accommodate the inclusion of Bright Builders as a new party to this suit. An amended scheduling order reflecting these changes will be submitted to the Court for its consideration. 8. Only one other amendment to the scheduling order governing this case has been

made since the Court's entry of the Consent Amended Scheduling Order, which was submitted by the parties in conjunction with their Joint 26(f) Report. Specifically, the deadlines for the parties' expert disclosures were extended by approximately 45 days. Prior to the expiration of its amended deadline to identify expert witnesses, Plaintiff filed its expert disclosures with the Court. WHEREFORE, the parties pray the Court that the scheduling order be amended so as to allow for the inclusion of Bright Builders, Inc., as a new party to this suit.

[SIGNATURE BLOCKS ON FOLLOWING PAGE]

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WE SO MOVE: NELSON MULLINS RILEY & SCARBOROUGH LLP
By: s/John C. McElwaine John C. McElwaine Federal Bar No. 6710 E-Mail: [e-mail] Janene B. Smith Federal Bar No. 9960 E-Mail: [e-mail] 151 Meeting Street / Sixth Floor Post Office Box 1806 (29402-1806) Charleston, SC 29401-2239 [phone] Admitted Pro Hac Vice Christopher S. Finnerty Massachusetts Bar No. 65732 E-mail: [e-mail] Morgan T. Nickerson Massachusetts Bar No. 667290 E-mail: [e-mail] One Boston Place, 40th Floor Boston, MA 02108 [phone] Attorneys for Plaintiff Roger Cleveland Golf Company, Inc.

WE CONSENT: LIZZI LAW FIRM, PC

By: s/Christopher D. Lizzi Christopher D. Lizzi Federal Bar No. 8040 E-Mail: [e-mail] 2170 Ashley Phosphate Rd., Ste. 402 North Charleston, SC 29406 [phone] Attorneys for Defendants Christopher Prince and Prince Distribution, LLC

Charleston, South Carolina March 22, 2010

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