Perritt et al v. The Cupcakery, et al

Filing 40

SUR-REPLY to Reply to Response to Motion re 34 Emergency MOTION for Extension of Time to File Response/Reply as to 24 MOTION to Change Venue filed by Pamela F. Jenkins, The Cupcakery. (Slater, Jodie)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION RICKY B. PERRITT, Individually; The Cupcakery, LLC, a Texas Limited Liability Company; Buster Baking, LLC, a Texas Limited Liability Company; and the Woodlands Baking, LLC, a Texas Limited Liability Company, Plaintiffs, v. PAMELA F. JENKINS, Individually; and The Cupcakery, LLC, a Nevada Limited Liability Company, Defendants. § § § § § § § § § § § § § § § § CAUSE NO. 4:11-CV-23 DEFENDANTS PAMELA F. JENKINS AND THE CUPCAKERY, LLC, A NEVADA LIMITED LIABILITY COMPANY'S SUR-REPLY TO EMERGENCY MOTION FOR EXTENSION OF DEADLINE TO RESPOND TO MOTION TO TRANSFER VENUE Defendants Pamela F. Jenkins ("Jenkins") and The Cupcakery, LLC, a Nevada Limited Liability Company ("Nevada Cupcakery") (collectively, the "Defendants") file this Sur-Reply in connection with Plaintiffs Ricky B. Perritt ("Perritt"), The Cupcakery, LLC, a Texas Limited Liability Company (the "Texas Cupcakery"), Buster Baking, LLC, a Texas Limited Liability Company ("BBLLC"), and the Woodlands Baking, LLC, a Texas Limited Liability Company's ("WBLLC"), and Custom Version Corporation's ("Custom") (collectively, Perritt, Texas Cupcakery, BBLLC, WBLLC, and Custom are the "Plaintiffs") Emergency Motion for DEFENDANTS PAMELA F. JENKINS AND THE CUPCAKERY, LLC, A NEVADA LIMITED LIABILITY COMPANY'S SUR-REPLY TO EMERGENCY MOTION FOR EXTENSION OF DEADLINE TO RESPOND TO MOTION TO TRANSFER VENUE Page 1 Extension of Deadline to Respond to Defendants' Motion to Transfer Venue, filed March 3, 2011 (Dkt. No. 34) (the "Motion") based on the following: 1. Plaintiffs' argument that venue is proper in the Eastern District of Texas is misplaced. See Pls.' Resp. at p. 2. Defendants have not objected to venue in the Eastern District of Texas as improper. Rather, Defendants have moved to transfer this case to the District of Nevada pursuant to 28 U.S.C. § 1404(a) for the convenience of the parties and witnesses, and in doing so have provided the Court with an analysis of the private and public interest factors under In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (Volkswagen I).1 Plaintiffs' arguments for their "overwhelming basis for venue in the Eastern District" have no bearing on an analysis of the private and public interest factors set forth in Volkswagen I. See Pls.' Resp. at p. 2. Likewise, Plaintiff's request for Ms. Jenkins's deposition to determine Ms. Jenkins's "contacts" with Texas is unnecessary, as Ms. Jenkins's contacts with Texas have no bearing on an analysis of the private and public interest factors set forth in Volkswagen I. See Pls.' Resp. at 3. 2. Further, Plaintiffs did explore venue facts at the hearing on the Temporary Restraining Order on January 31, 2011 and obtained answers from Ms. Jenkins to questions related to venue issues. 3. Last, Ms. Jenkins's studies abroad before she started The Cupcakery or had a The private factors to be considered are: "(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive." In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (hereinafter Volkswagen I). The public factors are: "(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws of the application of foreign law." Id. 1 DEFENDANTS PAMELA F. JENKINS AND THE CUPCAKERY, LLC, A NEVADA LIMITED LIABILITY COMPANY'S SUR-REPLY TO EMERGENCY MOTION FOR EXTENSION OF DEADLINE TO RESPOND TO MOTION TO TRANSFER VENUE Page 2 child have no bearing on whether trial in this matter is more convenient in Texas or in Nevada today. Ms. Jenkins's travels are irrelevant to the analysis required for a venue transfer under 28 U.S.C. § 1404 (a). See Volkswagen I, 371 F.3d at 203. For all of the foregoing reasons, Plaintiffs' Motion should be denied. Respectfully submitted, /s/ Jodie A. Slater Jodie A. Slater Texas State Bar No. 24046862 STRONG & NOLAN, LLP 1701 N. Market St., Suite 200 Dallas, Texas 75202 (214) 635-5643 (telephone) (214) 752-6929 (telecopy) jodie@strongnolan.com ATTORNEY FOR DEFEDANTS DEFENDANTS PAMELA F. JENKINS AND THE CUPCAKERY, LLC, A NEVADA LIMITED LIABILITY COMPANY'S SUR-REPLY TO EMERGENCY MOTION FOR EXTENSION OF DEADLINE TO RESPOND TO MOTION TO TRANSFER VENUE Page 3 DEFENDANTS PAMELA F. JENKINS AND THE CUPCAKERY, LLC, A NEVADA LIMITED LIABILITY COMPANY'S SUR-REPLY TO EMERGENCY MOTION FOR EXTENSION OF DEADLINE TO RESPOND TO MOTION TO TRANSFER VENUE Page 4 CERTIFICATE OF SERVICE I hereby certify that on the 11th day of March 2011, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following: Michael J. Whitten Michael J. Whitten & Associates, P.C. 218 N. Elm Street Denton, Texas 76201 Clyde M. Siebman Siebman, Burg, Phillips & Smith, LLP Federal Courthouse Square 300 North Travis Street Sherman, TX 75090 /s/Jodie A. Slater Jodie A. Slater DEFENDANTS PAMELA F. JENKINS AND THE CUPCAKERY, LLC, A NEVADA LIMITED LIABILITY COMPANY'S SUR-REPLY TO EMERGENCY MOTION FOR EXTENSION OF DEADLINE TO RESPOND TO MOTION TO TRANSFER VENUE Page 5

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