Incentive Capital v. Camelot Entertainment Group et al

Filing 62

Plaintiff's MOTION for Extension of Time To Respond To Defendant Baer's Motion to Dismiss and Defendant Jarowey's Motion to Quash filed by Plaintiff Incentive Capital. (Attachments: # 1 Text of Proposed Order) Motions referred to Samuel Alba.(Pia, Joseph)

Joseph G. Pia (9945)
Nathan S. Dorius (8977)
PIA ANDERSON DORIUS REYNARD & MOSS
222 South Main Street, Suite 1800
Salt Lake City, Utah 84101
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]
Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

INCENTIVE CAPITAL, LLC, a Utah Limited
Liability Company,
Plaintiff,
v.
CAMELOT ENTERTAINMENT GROUP,
INC., a Delaware Corporation; CAMELOT
FILM GROUP, INC., a Nevada Corporation;
CAMELOT DISTRIBUTION GROUP, INC.,
a Nevada Corporation, ROBERT P. ATWELL,
an individual; JAMIE R. THOMPSON, an
individual; STEVEN ISTOCK, an individual;
TED BAER, an individual; PETER
JAROWEY, an individual,

PLAINTIFF’S MOTION FOR
EXTENSION OF TIME TO RESPOND TO
DEFENDANT TED BAER’S MOTION TO
DISMISS AND TO DEFENDANT PETER
JAROWEY’S MOTION TO QUASH
Civil No. 2:11-cv-00288
Judge Clark Waddoups
(Oral Argument Requested)

Defendants.

Pursuant to DUCivR 7 -1, Plaintiff Incentive Capital, LLC (“Plaintiff” or “Incentive”), by
and through counsel of record, hereby moves the Court for a second extension of time to respond
to (1) Defendant Ted Baer’s (“Baer”) Motion to Dismiss for Lack of Jurisdiction (“Motion to

Dismiss”), and (2) Defendant Peter Jarowey’s (“Jarowey”) Motion to Quash Service (“Motion to
Quash”).
INTRODUCTION
Plaintiff requests an extension of time until five days after Defendants Robert Atwell,
Camelot Distribution Group, Camelot Entertainment Group, Camelot Film Group, Steven Istock,
and Jamie Thompson (collectively the “Atwell Defendants”) file their answer to Plaintiff’s
Complaint within which to respond to Baer’s Motion to Dismiss and to Jarowey’s Motion to
Quash. Said course of action will prevent the piece-meal litigation that would result if Baer’s
and Jarowey’s Motions were allowed to proceed without the benefit of the Atwell Defendants’
filed answer. The Court is being put in a situation where it will need to needlessly re-litigate the
same issues addressed in Baer’s and Jarowey’s Motions when the Atwell Defendants finally
answer the Complaint. Plaintiff requests a reasonable extension of time until less than five
business days after the Atwell Defendants respond to Plaintiff’s Complaint before being required
to file opposition to Baer’s and Jarowey’s Motions.
STATEMENT OF FACTS
1.

On or about March 25, 2011, Plaintiff filed its Complaint (“Initial Complaint”)

against Defendants. Dkt. Entry No. 1.
2.

On or about April 14, 2011, Plaintiff filed an Amended Complaint (“Complaint”).

Dkt. Entry No. 2.
3.

All named Defendants were required to answer the Complaint within 30 days of

service of the Complaint, or by May 23, 2011. Dkt. Entry Nos. 12 – 18.

ii

4.

On or about April 27, 2011, due to the extreme prejudice and irreparable harm

caused by Defendants, Plaintiff filed a Motion for Temporary Restraining Order (“First Motion
for TRO”). Dkt. Entry No. 19.
5.

On or about May 2, 2011, Plaintiff’s First Motion for TRO was denied. Dkt.

Entry No. 26.
6.

On or about May 5, 2011, due to the continued extreme prejudice and irreparable

harm caused by Defendants, Plaintiff filed a second Motion for Temporary Restraining Order
(“Second Motion for TRO”). Dkt. Entry No. 28.
7.

On or about May 12, 2011, Plaintiff’s Second Motion for TRO was denied. Dkt.

Entry No. 41.
8.

On or about May 15, 2011, Defendant Baer filed a Motion to Dismiss for Lack of

Jurisdiction (“Motion to Dismiss”). Dkt. Entry No. 42.
9.

On or about May 17, 2011, the Atwell Defendants filed a Motion for Extension of

Time to Answer Plaintiff’s Complaint (“First Atwell Motion to Extend”). Dkt. Entry No. 45.
10.

On or about May 20, 2011, the Atwell Defendants’ First Motion to Extend was

granted without opportunity for objection by Plaintiff. Dkt. Entry No. 46. The Atwell
Defendants were ordered to answer the Complaint by June 27, 2011, or 35 days from the first
deadline for their response to Plaintiff’s Complaint. Id.
11.

On or about May 23, 2011, Defendant Jarowey filed a Motion to Quash Service

(“Motion to Quash”). Dkt. Entry No. 47.

iii

12.

On or about June 14, 2011, Plaintiff filed a Motion for Extension of Time to

Respond to Baer’s Motion to Dismiss. Dkt. Entry No. 54. The Court granted Plaintiff until June
24, 2011 to respond to Baer’s Motion to Dismiss. Dkt. Entry No. 57.
13.

On or about June 15, 2011, Plaintiff filed a Motion for Extension of Time to

Respond to Jarowey’s Motion to Quash. Dkt. Entry No. 56. The Court granted Plaintiff until
June 24, 2011 to respond to Jarowey’s Motion to Quash. Dkt. Entry No. 58.
14.

On or about June 23, 2011, the Atwell Defendants filed a second Motion for

Extension of Time to Answer or Otherwise Respond to Plaintiff’s Complaint (“Second Atwell
Motion to Extend”). Dkt. Entry No. 59. The Atwell Defendants request an extension until July
22, 2011, or 25 days from the second deadline for their response to Plaintiff’s Complaint. Id.

iv

ARGUMENT
PLAINTIFF’S MOTION FOR EXTENSION OF TIME TO RESPOND TO
BAER’S MOTION TO DISMISS AND JAROWEY’S MOTION TO QUASH
SHOULD BE GRANTED TO AVOID RELIGITATION OF THE ISSUES.
Although Defendants Ted Baer (“Baer”) and Peter Jarowey (“Jarowey”) have decided to
pursue their own independent defense and courses of action with regard to the present matter,
they nonetheless cannot disassociate themselves from the allegations against them in relation to
their association with the Atwell Defendants as agents and/or representatives of Camelot
Distribution Group, Camelot Entertainment Group, and/or Camelot Film Group (collectively
“Camelot”). Both Baer and Jarowey were present at every critical stage of the negotiation,
execution and breach of the Note and Security Agreements at issue. See generally Complaint.
Specifically, Baer served as legal counsel to the Atwell Defendants and acted on their behalf in
relation to the Note and Security Agreements in question. See id at ¶ 80. Additionally, Jarowey
served as the Atwell Defendants’ consultant in performing due diligence in relation to the same
Note and Security Agreements. See id. at ¶¶ 76 – 77. As such, the allegations set forth in
Plaintiffs Complaint against Baer, Jarowey and the Atwell Defendants are inextricably
intertwined.
Based on the interrelatedness of the issues against all named Defendants, this Court
would be subject to manage inefficient and piece-meal litigation if Baer’s and Jarowey’s
Motions are allowed to proceed without the Atwell Defendants’ answer to Plaintiff’s Complaint.
The Atwell Defendants have had ample time to respond to the Complaint – nearly 65 days to be
exact, once the June 27, 2011 deadline to answer the Complaint arrives. Yet, the Atwell
Defendants seek an additional 25 days in further delay of their response to Plaintiff’s Complaint.
1

This Court previously granted the Atwell Defendants’ First Motion to Extend just one business
day after the Motion was filed and without affording Plaintiff the opportunity to respond. By
their Second Motion to Extend, the Atwell Defendants indicate their reason for seeking yet
another extension – to wait for the pending litigation in a related California Action (United States
District Court, Central District of California, Case No. 2:11-CV-02323, Judge Dean D.
Pregerson presiding) to be resolved. None of the named parties can foretell what will happen in
the California Action, must less when the issues pending before the California federal court will
be resolved. As such, and based on the Atwell Defendants’ reasoning behind their recently filed
Second Motion to Extend, it appears that the Atwell Defendants will continue to seek extensions
from this Court indefinitely.
Whether or not the Atwell Defendants will actually continue their present delay in
responding to Plaintiff’s Complaint undoubtedly affects this Court’s proceedings with regard to
Baer’s and Jarowey’s Motions. As previously discussed, the issues presented in Baer’s and
Jarowey’s Motions are based on the same transaction and occurrence as the issued presented in
Plaintiff’s Complaint – the inducement, execution and breach of the Note and Security
Agreements at issue. If Baer’s and Jarowey’s Motions are allowed to proceed by requiring
Plaintiff to respond without the Atwell Defendants’ answer to the Complaint, this Court will
effectively set a disjointed course of litigation wherein the same issues addressed in Baer’s and
Jarowey’s Motions, and in subsequently related briefs, motions and memoranda, will have to be
re-litigated once the Atwell Defendants are either required or decide to answer the Complaint.
In the interests of judicial economy, and to avoid the inevitable piece-meal litigation that
will result if Baer’s and Jarowey’s Motions are allowed to proceed, Plaintiff respectfully requests
2

that its Motion for Extension of Time be granted. A proposed Order granting the Motion for
Extension of Time is attached hereto as Exhibit A.
CONCLUSION
Based on the foregoing, Plaintiff respectfully requests that this Court grant it a reasonable
extension of five days after the Atwell Defendants file a response to Plaintiff’s Complaint within
which to respond to Defendant Ted Baer’s Motion to Dismiss and Defendant Peter Jarowey’s
Motion to Quash.
DATED this 24th day of June, 2011.
PIA ANDERSON DORIUS REYNARD & MOSS

/Joseph Pia/ ____________________________
Joseph Pia
Attorneys for Plaintiff

3

CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of June, 2011, a true and correct copy of forgoing
PLAINTIFF’S MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANT
TED BAER’S MOTION TO DISMISS AND TO DEFENDANT PETER JAROWEY’S
MOTION TO QUASH was served by electronic mail on the following:
Milo Steven Marsden
Todd D. Weiler
DORSEY & WHITNEY LLP
136 South Main Street, Suite 1000
Salt Lake City, Utah 84101-1685
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
By: /s/ Joseph Pia

4