Incentive Capital v. Camelot Entertainment Group et al

Filing 89

MEMORANDUM in Support re 88 Defendant's MOTION to Strike 87 Memorandum in Opposition to Motion, filed by Defendant Ted Baer. (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.

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

MEMORANDUM IN SUPPORT
OF DEFENDANT TED BAER’S
MOTION TO STRIKE
PLAINTIFF INCENTIVE’S
MEMORANDUM IN
OPPOSITION TO TED BAER’S
MOTION TO DISMISS FOR
LACK OF PERSONAL
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 Strike Plaintiff Incentive’s Memorandum in Opposition to Ted
Baer’s Motion to Dismiss for Lack of Personal Jurisdiction.

ARGUMENT
Plaintiff Incentive missed the deadline that Plaintiff Incentive had itself petitioned the
Court to set for its opposition to Defendant Ted Baer’s Motion to Dismiss. [Docket Entry No. 65]
Under the Court’s July 1, 2011 Order, Plaintiff Incentive was required to timely file its opposition
five days after July 27, 2011 deadline for the Atwell Defendants to file their answer to Plaintiff
Incentive’s complaint. The Atwell Defendants filed their answer and triggered the 5-day deadline
for Plaintiff’s opposition to be filed on July 27, 2011. Properly calculated, the five-day period
expired on August 1, 2011. Even if the weekend is excluded in calculating the 5-day period, the
time for Plaintiff Incentive to respond to Defendant Ted Baer’s Motion to Dismiss expired at the
very latest on August 3, 2011. Only after the deadline had passed by either count did Plaintiff
Incentive file, on August 5, 2011, its opposition memorandum. Because it is untimely, the Court
should not consider the memorandum and it should be stricken.
Plaintiff Incentive cannot show any basis that would allow Incentive to file its opposition
memorandum after the deadline has passed. Plaintiff Incentive has been on notice of the five-day
deadline that was triggered by the Atwell Defendant’s answer to the complaint but nevertheless
failed to file its opposition in time. Plaintiff Incentive requested the deadline, and in the
opposition memorandum Plaintiff Incentive filed on July 19, 2011 to Defendant Ted Baer’s
Motion to Reconsider, Plaintiff Incentive argued that reconsideration of the Court’s July 1, 2011
Order was unnecessary because the July 27, 2011 deadline for the Atwell Defendants to answer
Plaintiff Incentive’s complaint was already approaching and that Plaintiff’s response to Defendant
Ted Baer’s Motion to Dismiss would be due just five days after the July 27, 2011 deadline.

S:\DENNIS\INCENTIVE CAPITAL V. CAMELOT\MEMO.MOT.STRIKE.DOCX

2

[Docket Entry 71]. Consequently, it was not reasonable for Plaintiff Incentive to ignore the
Court’s deadline for filing its opposition memorandum and file it opposition memorandum late.
Allowing Plaintiff Incentive’s late-filed opposition memorandum will only continue to
delay decision on Defendant Ted Baer’s Motion to Dismiss—which has already been delayed by
several extensions that Plaintiff Incentive has previously sought. The delay keeps Defendant Ted
Baer personally involved in litigation that is improper for lack of jurisdiction, which means
additional and unnecessary time and expense being spent while waiting for a ruling on his motion.
Defendant Ted Baer accordingly requests that the Court Strike Plaintiff Incentive’s Memorandum
in Opposition to Ted Baer’s Motion to Dismiss for Lack of Personal Jurisdiction and decide his
Motion to Dismiss.
DATED this 10th day of August, 2011.
MORGAN, MINNOCK, RICE & JAMES, L.C.

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

S:\DENNIS\INCENTIVE CAPITAL V. CAMELOT\MEMO.MOT.STRIKE.DOCX

3

CERTIFICATE OF SERVICE
I hereby certify that on this 10th day of August, 2011, I electronically filed a true and
correct copy of the foregoing MEMORANDUM IN SUPPORT OF DEFENDANT TED
BAER’S MOTION TO STRIKE PLAINTIFF INCENTIVE’S MEMORANDUM IN
OPPOSITION TO TED BAER’S MOTION TO DISMISS FOR LACK OF PERSONAL
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

S:\DENNIS\INCENTIVE CAPITAL V. CAMELOT\MEMO.MOT.STRIKE.DOCX

4