Incentive Capital v. Camelot Entertainment Group et al

Filing 90

Defendant's MEMORANDUM in Opposition re 83 MOTION for Leave to File Opposition to Motion to Dismiss today 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.

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MEMORANDUM IN
OPPOSITION TO PLAINTIFF’S
MOTION TO PERMIT FILING
OF OPPOSITION TO MOTION
TO DISMISS TODAY

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

Defendant Ted Baer, appearing specially, submits the following memorandum in
opposition to Plaintiff’s Motion to Permit Filing of Opposition to Motion to Dismiss Today.

ARGUMENT
Plaintiff Incentive missed the deadline that Plaintiff Incentive had 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. On August 5, 2011, after the deadline had passed by either count,
Plaintiff Incentive motioned the Court to allow it to file its opposition after the deadline.
Plaintiff Incentive argues that excusable neglect should allow Incentive to file an
opposition memorandum well after the deadline has passed. Incentive suggests that it missed the
deadline for filing its opposition because it was waiting for the Court to rule on Defendant Ted
Baer’s Motion to Reconsider the Court’s July 1, 2011 Order [Docket Entry No. 68], and because
its counsel was out-of-town and did not see the Court’s August 4, 2011 ruling on the Motion to
Reconsider.1 [Docket Entry No. 80] However, waiting for the Court’s ruling on the Motion to
Reconsider is not excusable neglect, especially when a ruling on the Motion to Reconsider would
only result in either a reaffirmation of the Court’s original five-day deadline or the setting of a
1 Defendant Ted Baer notes that Plaintiff Incentive’s assertion that its counsel was out-of-state on vacation

and did not receive notice of the Court’s rulings is not supported by affidavit or otherwise. Defendant Ted
Baer also notes that this assertion does not account for the fact that Plaintiff has more than one attorney
representing it, according to the captions of its pleadings, and it does not explain why notice of Defendant
Ted Baer’s filings and the Court’s ruling were not received.
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different, earlier deadline—which is what Defendant Ted Baer was seeking to prevent further
delay in getting a ruling on his Motion to Dismiss; his Motion to Reconsider was not requesting
that Plaintiff Incentive’s deadline be extended any further.
More importantly, the Motion to Reconsider was effectively rendered moot when the Court
did not rule on the Motion to Reconsider until after the deadlines set in the Court’s original July 1,
2011 Order had already expired. In fact, 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. [Docket Entry 71]. Plaintiff Incentive argued
that because Defendant Ted Baer’s Motion to Reconsider was essentially already moot, it would
have been a waste of the Court’s time to reconsider the deadlines. Consequently, it was not
reasonable for Plaintiff Incentive ignore the Court’s deadline for filing its opposition
memorandum in order to wait for the Court to rule on a motion that Plaintiff Incentive already
believed was unnecessary and unlikely to be granted.
Plaintiff Incentive’s mistake in failing to file its opposition to the Motion to Dismiss in
accordance with the Court’s deadline does not under case law amount to the type of excusable
neglect that warrants granting Plaintiff’s Incentive’s motion to permit the filing of the
memorandum now that the deadline has past. See, e.g., Sizemore v. State of New Mex. Dept. of
Labor, 182 Fed. Appx. 848, 852-53 (10th Cir.2006) (no excusable neglect where counsel ignored

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deadline, erroneously relied on Rule 6 to calculate deadline, failed to meet deadline and failed to
seek extension immediately upon receiving defendant's motion); Quigley v.. Rosenthal, 427 F.3d
1232, 1238 (no excusable neglect where counsel mistakenly construed rule and failed to timely
seek attorneys' fees); Ghamrawi v. Case & Assocs. Props. Inc., 116 Fed. Appx. 206, 210 (10th
Cir.2004) (no excusable neglect where counsel knew about but disregarded deadline because of
workload); Lewis v. Herrman's Excavating, 200 F.R.D. 657, 660 (D. Kansas 2001) (no excusable
neglect where counsel missed deadline because of tactical decision).
Plaintiff Incentive otherwise fails to establish a basis for allowing it to file an opposition
memorandum now that the deadline has expired. Defendant Ted Baer accordingly requests that
Plaintiff’s Motion to Permit Filing of Opposition to Motion to Dismiss Today be denied and that
his Motion to Dismiss be submitted to the Court for decision.2
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

2 Defendant Ted Baer notes that his Motion to Dismiss has already been delayed and that further delay on a

decision on his Motion to Dismiss only keeps him personally involved in litigation that is already improper
for lack of jurisdiction, which means additional and unnecessary time and expense being spent while
waiting for a ruling on his motion.
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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 OPPOSITION TO PLAINTIFF’S
MOTION TO PERMIT FILING OF OPPOSITION TO MOTION TO DISMISS TODAY
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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