Perritt et al v. The Cupcakery, et al

Filing 95

REPLY to Response to Motion re 90 Opposed SEALED MOTION for Leave to File Plaintiffs' Supplemental Surreply in Opposition to Defendants' Motion to Transfer Venue filed by Buster Baking, Ricky B Perritt, The Cupcakery, The Woodlands Baking, LLC. (Barnes, Stephanie)

UNITED STATES DISTRICT COURT
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;
THE WOODLANDS BAKING, LLC,
a Texas Limited Liability Company;
CUSTOM VERSION CORPORATION,
a Texas Corporation
Plaintiffs,
v.
PAMELA F. JENKINS, Individually; and
THE CUPCAKERY LLC, a Nevada
Limited Liability Company
Defendants.

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Civil Action No. 4:11-CV-23

REPLY BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR LEAVE TO FILE
THEIR SUPPLEMENTAL SURREPLY BRIEF
IN OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER VENUE
Plaintiffs RICKY B. PERRITT, Individually, THE CUPCAKERY, LLC, a Texas
Limited Liability Company, BUSTER BAKING, LLC, a Texas Limited Liability Company,
THE WOODLANDS BAKING, LLC, a Texas Limited Liability Company, and CUSTOM
VERSION CORPORATION, a Texas Corporation (collectively “Plaintiffs”), by and through
their attorneys, hereby file this their Reply Brief in Support of their Motion for Leave to File
Plaintiffs’ Supplemental Surreply Brief in Opposition to Defendants’ Motion to Transfer Venue.
Plaintiffs filed their Motion for Leave on the evening of July 7, 2011. (Docket No. 90).
Defendants PAMELA F. JENKINS Individually and THE CUPCAKERY LLC, a Nevada
Limited Liability Company (“Defendants”) filed their response brief in opposition to Plaintiffs’
Motion for Leave the next morning arguing that Plaintiffs’ counsel failed to satisfy the meet and

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confer requirements set forth in Local Rule CV-7(h).1 (Docket No. 93). Despite being able to
file a brief in opposition to Plaintiffs’ Motion for Leave, Defendants’ counsel has yet to return
Plaintiffs’ counsel’s phone calls.

As noted in the certificate of conference contained in

Plaintiffs’ Motion for Leave, Plaintiffs’ counsel called Defendants’ counsel four times (leaving
four voice messages explaining the relief requested) prior to filing the Motion for Leave.
Additionally, in a further attempt to meet and confer, Plaintiffs’ counsel called Defendants’
counsel again on July 8, 2011 after Defendants filed their response brief and left another voice
message. Ms. Slater has not returned any of Plaintiffs’ counsel’s phone calls.
Significantly, in their response brief Defendants admit to conducting discovery
concerning the promissory notes. These documents are located in Texas (and have always been
in Texas) and the witnesses related to them are in Texas. This fact weighs heavily against
transferring this case to Nevada. Consideration of this new fact (arising with Defendants’ first
set of discovery served after the filing of Plaintiffs’ surreply) justifies granting leave to
supplement the briefing on Defendants’ Motion to Transfer and denying the Motion to Transfer
Venue.
Plaintiffs respectfully request that the Court grant their Motion for Leave and consider
their Supplemental Surreply Brief in Opposition to Defendants’ Motion to Transfer Venue.
Plaintiffs reiterate their prayer that Defendants’ Motion to Transfer be denied in its entirety.

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Defendants’ response brief also contains responsive arguments in opposition to the merits of
Plaintiffs’ Motion for Leave. (Docket No. 93). Thus, clearly Defendants oppose Plaintiffs’
Motion for Leave and the issue is ripe for the Court’s consideration.
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Respectfully submitted,

SIEBMAN, BURG, PHILLIPS & SMITH, LLP
/s/ Stephanie R. Barnes
CLYDE M. SIEBMAN
State Bar No. 18341600
BRYAN H. BURG
State Bar No. 03374500
STEPHANIE R. BARNES
State Bar No. 24045696
Federal Courthouse Square
300 North Travis Street
Sherman, Texas 75090
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE
The undersigned certifies that on this 8th day of July, 2011, all counsel of record who are
deemed to have consented to electronic service are being served with a copy of this document
through the Court’s CM/ECF system under Local Rule CV-5(a)(3). Any other counsel of record
will be served by a facsimile transmission and/or first class mail.
/s/ Stephanie R. Barnes

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