Incentive Capital v. Camelot Entertainment Group et al

Filing 68

MEMORANDUM in Support re 67 MOTION Reconsider Order on Plaintiff's Motion for Extension of Time to Respond to Defendant Ted Baer's Motion to Dismiss for Lack of Jurisdiction re 65 Order on Motion for Extension of Time, MOTION Reconsider Order on Plaintiff's Motion for Extension of Time to Respond to Defendant Ted Baer's Motion to Dismiss for Lack of Jurisdiction re 65 Order on Motion for Extension of Time, filed by Defendant Ted Baer. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(James, Dennis)

Dennis R. James, No. 1642
Brian H. Hess, No. 10313
MORGAN, MINNOCK, RICE & JAMES, L.C.
Kearns Building, Eighth Floor
136 South Main Street
Salt Lake City, Utah 84101
Telephone No.: [phone]
Facsimile No.: [phone]
[e-mail]
Attorneys for Defendant Ted Baer

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

INCENTIVE CAPITAL, LLC, a Utah Limited
Liability Company,
Plaintiff,
vs.
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,
Defendants.

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MEMORANDUM IN SUPPORT
OF DEFENDANT TED BAER’S
MOTION TO RECONSIDER
ORDER ON PLAINTIFF’S
MOTION FOR EXTENSION OF
TIME TO RESPOND TO
DEFENDANT TED BAER’S
MOTION TO DISMISS FOR
LACK OF JURISDICTION

Civil No. 2:11-CV-00288
Honorable Clark Waddoups

Defendant Ted Baer, appearing specially, submits the following memorandum in support
of Defendant Ted Baer’s Motion to Reconsider Order on Plaintiff’s Motion for Extension of Time
to Respond to Defendant Ted Baer’s Motion to Dismiss for Lack of Jurisdiction.

STATEMENT OF FACTS
1.

On June 24, 2011, Plaintiff Incentive Capital filed its second Motion for Extension

of Time to Respond to Defendant Ted Baer’s Motion to Dismiss and to Defendant Peter Jarowey’s
Motion to Quash, requesting an extension until five days after Defendants Robert Atwell, Camelot
Distribution Group, Camelot Entertainment Group, Camelot Film Group, Steven Istock, and Jamie
Thompson (referred to by Plaintiff as the “Atwell Defendants”) file their answer to Plaintiff’s
Amended Complaint. (Docket Entry No. 62).
2.

On June 29, 2011, Lynette Ambrose a paralegal at Morgan, Minnock, Rice &

James, L.C., counsel for Defendant Ted Baer, called the offices of Judge Clark Waddoups and
spoke with his administrative assistant and informed the Court that Defendant Ted Baer would be
filing an opposition to Plaintiff’s Motion for Extension of Time to Respond to Defendant Ted
Baer’s Motion to Dismiss. (Affidavit of Lynette Ambrose at ¶¶2-3, Exhibit “A”).
3.

Lynette Ambrose understood from the conversation that the Court would not take

action on the Order until Defendant Ted Baer’s opposition memorandum was filed with the Court,
and she understood that the rules allowed 14 days from the filing of Plaintiff’s Motion for the filing
of an opposition memorandum. (Id. at ¶4-6, Exhibit “A”).
4.

Defendant Ted Baer’s Memorandum in Opposition to Plaintiff’s Motion for

Extension of Time to Respond to Defendant Ted Baer’s Motion to Dismiss was filed at
approximately 3:00 p.m. on July 1, 2011. (Id. at ¶7, Exhibit “A”; Docket Entry No. 66, attached
as Exhibit “B”).

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5.

The Court’s docket shows that the Court entered the July 1, 2011 Order on

Plaintiff’s Motion for Extension of Time to Respond to Defendant Ted Baer’s Motion to Dismiss
for Lack of Jurisdiction before Defendant Ted Baer’s opposition memorandum was received by
the Court. (Docket Entry No. 65).
ARGUMENT
Under DUCivR 7-1(B), Defendant Ted Baer timely opposed Plaintiff’s Motion of
Extension of Time to Respond to Defendant Ted Baer’s Motion to Dismiss for Lack of Jurisdiction
by filing his opposition memorandum on July 1, 2011, within 14 days of June 24, 2011, when
Plaintiff first filed its Motion. In addition, prior to filing his opposition, Defendant Ted Baer put
the Court on advance notice that he would be filing an opposition memorandum to avoid having
the Order entered before the time for opposing the Motion expired. Defendant Ted Baer
understood that no action would be taken on the Order until his opposition had been filed.
However, the Order was entered on July 1, 2011—only seven days after Plaintiff filed its
Motion, and before Defendant Ted Baer filed his opposition to the Motion for the Court to
consider. Because Defendant Ted Baer’s opposition was filed in a timely manner in accordance
with the deadlines set by local rule, and because the Court was put on notice that Defendant Ted
Baer would be filing an opposition memorandum, his arguments against Plaintiff’s Motion for
Extension should have been considered before any action was taken on the Plaintiff’s Motion and
before the Order was entered. The Court has discretion to reconsider the Order, Fed. R. Civ. P.
54(b); see also Anderson v. Deere & Co., 852 F.2d 1244, 1246 (10th Cir. 1988); Artificial Nail
Technologies, Inc. v. Flowering Scents, LLC, 2007 WL 3254744 (D. Utah Nov. 2, 2007), and

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Defendant Ted Baer therefore requests that the Court exercise its discretion to reconsider its entry
of the Order and fully consider Defendant Ted Baer’s timely opposition to the Motion.
DATED this 1st day of July, 2011.
MORGAN, MINNOCK, RICE & JAMES, L.C.

/s/ Dennis R. James
Dennis R. James
Brian H. Hess
Counsel for Defendant Ted Baer

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CERTIFICATE OF SERVICE
I hereby certify that on this 1st day of July, 2011, I electronically filed a true and correct
copy of the foregoing MEMORANDUM IN SUPPORT OF DEFENDANT TED BAER’S
MOTION TO RECONSIDER ORDER ON PLAINTIFF’S MOTION FOR EXTENSION
OF TIME TO RESPOND TO DEFENDANT TED BAER’S MOTION TO DISMISS FOR
LACK OF JURISDICTION with the Clerk of Court using the CM/ECF system which sent
notification of such filing to the following:
Wayne G. Petty
Joseph G. Pia
MOYLE & DRAPER, P.C.
Nathan S. Dorius
[e-mail]
PIA ANDERSON DORIUS REYNARD &
Attorneys for Defendant Peter Jarowey
MOSS, PLLC
[e-mail]
[e-mail]
Attorneys for Plaintiff
Marc E. Kasowitz
David J. Shapiro
KASOWITZ, BENSON, TORRES &
FRIEDMAN LLP
[e-mail]
[e-mail]
Attorneys for Defendant Peter Jarowey

John A. Snow
Karen E. O’Brien
VAN COTT BAGLEY CORNWALL &
McCARTHY
[e-mail]
[e-mail]
Attorneys for Defendants Camelot, Atwell,
Thompson and Istock
Jonathan M. Levitan
[e-mail]
Attorneys for Defendants Camelot, Atwell,
Thompson and Istock

/s/ Lynette Ambrose

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