On October 24, 2013 a
Motion-Secondary
was filed
involving a dispute between
Copernicus Dynamics, Lp,
Fleming, Norman C.,
Geisler, Fred,
Roes 1-25, Inclusive,
Zischke, Gena,
Tedan Surgical Innovations, Llc, A Texas Limited Liability Company,
and
3Cor, Inc, A California Corporation,
3Cor Medical, Inc.,
Azucena, Kimberly,
Bass, Daniel,
Does 1 To 25,
Does 2 To 25,
Fishman, Daniel,
Glynn, Robert John, Jr,
Industry Of The Redwoods, Llc, A Nevada Llc,
Johnston, Terry,
Magnolia Group, Llp,
Mier, Rowena,
Rhausler, Inc.,
Rhausler, Inc., A California Corporation,
Sims, Katie, Certified Public Acc,
Tedan Surgical Innovations, Llc, A Texas Limited Liability Company,
for Complex Civil Unlimited
in the District Court of San Mateo County.
Preview
l 1 JAMES L. JACOBS, State Bar No. 158277
ROBERT W. LUCKINBILL, State Bar No. 131977
/2/Z/
§ 2 GCA LAW PARTNERS LLP
Q
2570 W. El Camino Real, Suite 400
3 Mountain View, CA 94040
Telephone: (650) 428-3900
4 Facsimile: (650) 428-3901
5 Attorneys for Defendants
TERRY J. JOHNSTON and ROBERT GLYNN, JR.
6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
.
8 IN AND FOR THE COUNTY OF SAN MATEO
9
FRED H. GEISLER, M.D., Ph.D.,an No. 17CIV02888
individual, and NORMAN C. FLEMING, an
10 individual, directly, and derivatively on EX PAR TE APPLICATION OF
behalf of RHAUSLER, INC., a California DEFENDANTS TERRY JOHNSTON
11 Corporation, AND ROBERT GLYNN JR. FOR AN
'
ORDER EXTENDING TIME TO FILE
12 Plaintiffs, RESPONSIVE PLEADING WITH
RESPECT TO SECOND AMENDED
13 vs. COMPLAINT; MEMORANDUM OF
POINTS AND AUTHORITIES
14 TERRY J. JOHNSTON, an individual;
KATIE SIMS, CPA, an individual; ROBERT
15 JOHN GLYNN, JR., an individual; 3COR
MEDICAL, INC., California Corporation;
21
Ex Parte: November 22, 2017'
16 TEDAN SURGICAL INNOVATIONS, LLC, Time: 2 pm.
a Texas Limited Liability Company, and Dept: Law & Motion
17 DOES 1 to 25,
18 Defendants,
Complaint Filed: June 28, 2017
and RHAUSLER, INC., a California Tm” Date‘ Not SCI
19
Corporatlon,
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20 EPA .
App'mm"
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Nominal Defendant. I
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TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: L — - '
23
Pursuant to Rule 3.1200 et seq. of the California Rules of Court (“CRC”), Section
24
473 of the California Code of Civil Procedure, and Rule 2.3(C)(5) of the Superior Court of
25
California, County of San Mateo Local Court Rules (“Local Rules”), Defendants Terry J.
26
Johnston (“Johnston”) and Robert Glynn, Jr. (“Glynn” and collectively with Johnston, the
27 “Moving Parties”) respectfully submit this Ex Parte Application for an order extending
EXPARTE APPL FOR ORDER EXTENDING
TIME TO FILE RESPONSIVE PLEADING,
MEMO OF P’S & A’S -1-
WWW” ‘
1 their time to file a responsive pleading in this action, whether it be to the First Amended
2 Verified Complaint, the Second Amended Verified Complaint, or some other yet to be
3 submitted complaining document.
4 This application is based on the facts that: (1) the Moving Parties’ responses to the
5 Second Amended Complaint are currently due to be filed and served on December 4, 2017;
6 (2) Co—Defendant TeDan Surgical Innovations, LLC (“TeDan”) has filed a motion to
7 revoke or vacate the court’s order granting plaintiffs leaVe to file the Second Amended
8 Complaint with a hearing date set for January 10, 2018; and (3) the uncertainty surrounding
9 the operative complaint warrants postponing the requirement that any defendant be
10 required to submit a responsive pleading until thirty (3 0) days following issuance by the
1 1 Court of a ruling on the pending TeDan motion at which point the uncertainty should be
1 2 removed.
13 In addition, and in the alternative, this application is based on the fact that the scope
14 of work required to prepare a responsive pleading in response to the Second Amended
15 Verified Complaint warrants an extension of time.
.
16 In compliance with Rule 3.1201 , Moving Parties’ Ex Parte Application is
17 supported by the Memorandum of Points & Authorities set forth below and the Declaration
18 of James L. Jacobs in support of this Ex Parte Application (“Jacobs Decl.”), filed
1 9 concurrently herewith.
20 Notice of this Ex Parte Application was properly provided to all counsel. On
21 November 20, 2017, counsel for Moving Parties provided e-mail notice of this Ex Parte
22 Application to counsel for plaintiffs and counsel for all parties to this action in
23 conformance with CRC Rule 3.1204(b). Declaration of James L. Jacobs (“Jacobs Decl.”)
24 at 1[ 4 and Ex. A. In response, counsel for plaintiffs (Mr. Ryan) indicated that he would
25 oppose this Ex Parte Application. Id. at 11 4 and Ex. B. Accordingly, the parties have not
26 resolved this dispute or eliminated the need for this Ex Parte Application.
27
EXPARTE APPL FOR ORDER EXTENDING
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PLEADING,
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1 MEMORANDUM OF POINTS AND AUTHORITIES
-
2 A. Key Facts.
3 After having previously filed their initial Verified Complaint and 49-page First
4 Amended Verified Complaint (neither of which were ever at issue), on October 30, 2017,
5 plaintiffs filed a 66-page Second Amended Verified Complaint in this action. Jacobs Decl.
6 at 11 2. As a result, Moving Parties’ responsive pleadings are due on or before December‘4,
7 2017. Id.
8 On November 15, 2017, defendant TeDan Surgical Innovations, LLC (“TeDan”)
9 filed a motion to vacate or revoke the order granting plaintiffs leave to file a Second
10 Amended Verified ComplaintId. at 11 3. By its motion, TeDan seeks to have the Court
1 1 rescind its grant to. plaintiffs of leave to amend thereby resulting in the Court treating the
12 Second Amended Verified Complaint as if it had never been filed. Id. Were that motion to
13 be granted, the First Amended Complaint would be the operative document unless and
14 until leave to file another complaint were sought and obtained by plaintiffs. Id. A hearing is
15 set on that motion for Janum 10, 2018. Id.
16 B. Applicable Legal Authority.
17 The California Code of Civil Procedure provides that “[t]he court may, in
18 furtherance of justice, and on any terms as may be proper, . . . enlarge the time for answer
19 or demurrer.” Cal. Civ. Proc. Code § 473(a)(1).
20 The Local Rules of this .Court provide the procedure whereby a party may obtain
21 such an extension of time, providing that the time to respond to a pleading may be
22 extended ex parte by' the Court, stating
23 Before the time to respond has expired, any, party served with a complaint or cross-
complaint may, with notice to all other parties in the action, make ex-parte
24
appllcatlon to the court upon good cause shown for an extensron of tlme to respond.
25 The filing of a timely application for an extension will automatically extend the
time to respond by five days, whether or not the application is granted.
Local Rule 2.3(C)(5)(c).
::
EXPARTE 'APPL FOR ORDER EXTENDING
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C. Good Cause Exists to Extend the Time for All Defendants to Serve and
File Responsive Pleadingg.
Given defendant TeDan’s motion to revoke or vacate the previously-entered order
granting plaintiffs leave to amend that is set for hearing in January 2018, there is uncertainty
COWVCDUI-D-OON—k as to Which document will ultimately be the operative complaint in this matter. The matter is
not yet at issue, and it is completely unclear as to which complaint defendants will be called
upon to respond.
Requiring defendants to respond to a complaint that may shortly be withdrawn from
the Court’s files accomplishes nothing other than to waste the Court’s time as well as the
time and resources of the parties and their counsel. Tens of hours of attorney and client time
are likely to be spent providing tie—rifled answers to the 66-page (260 paragraph) pleading.
Jacobs Decl. at 11 2. Moreover, if defendants are required to answer now and if TeDan’s
motion to vacate is subsequently granted, Moving Parties (and all other defendants) may then
be required to spend significant additional hours responding to a materially different 49—page
(211 paragraph) First Amended Complaint or some other operative complaint should
plaintiffs seek leave of court 'to file one. Id. No legitimate interest is served by that result.
Granting this Ex Parte Application for an extension of time to file and serve responsive
pleadings will ensure the efficient process of pleading in this matter and will not prejudice
anyone since this case is not yet at issue and has no trial date set. Such a ruling would also
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ensure that each party is not required to undertake potentially frivolous and costly exercises
pending a determination of which is the operative complaint. Id. at 11
2. Counsel for
specially appearing defendant TeDan and for nominal defendant Rhausler, Inc. have both
expressed their support for the relief sought by this Ex Parte Application. Id. at 11 5.
D. In the Alternative. Good Cause Exists to Extend by 15 davs (to
December 19 2017) the Time for Moving Parties to Serve and File
Responsive Pleadings.
In the event the Court is not inclined to grant the application as detailed above,
Moving Parties seek, in the alternative, an order extending their deadline to file a response to
EXPARTE APPL FOR ORDER EXTENDING
TIME TO FILE RESPONSIVE PLEADING,
MEMO OF P s & A’S _
-4-
_\
the current operative pleading to December 19, 2017. Good cause for such an extension
exists for at least three separate reasons. m, as previously noted, not only is the Second
Amended Verified Complaint a 66-page long, 260 paragraph opus; it is verified. Thus, any
answer filed must also be verified. Preparing a verified response to such a lengthy, detailed»
pleading entails a significant aniount of time and effort not only from counsel but from the
Moving Parties themselves. Particularly in light of the Thanksgiving holiday, additional time
M,
(OCDNODU'l-t
is warranted. Moving Party Johnston and his counsel are already presently involved
in a significant level of activity in this case: plaintiffs, have, in just the last three weeks, sent
more than 220—pages of meet and confer letters and prematurely filed a motion to compel — to
.
A O which Mr. Johnston and counsel are in the process of responding. Thus, plaintiff’ 5 Clear
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strategy is to throw the proverbial “kitchen sink”vat Moving Parties and then deny a
reasonable request for an extension in order for plaintiffs to seek to gain an untoward
‘
A N
A 00 advantage. Id. at 11
6. Third, there is no prejudice to plaintiffs if a 15-day extensiOn is
A 4'3 granted. Simply stated, there is nothing presently scheduled in this case which is negatively
A
U1 impacted if Moving Parties are provided an extension (to December 19) to respond to the
A
0) Second Amended Complaint. Id. at 1] 7.
A
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A 00 Respectfully submitted,
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MO Dated: November 22, 2017 GCA LAW PARTNERS LLP
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Atto sfor Defendants
TERRY J. JOHNSTON and ROBERT
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EXPARTE APPL. FOR ORDER EXTENDING
TIME TO FILE RESPONSIVE PLEADING,
MEMO OF P’S & A’S -5-
GCA Law Pnnnm LLP
(MONK-19W
Preview
l 1 JAMES L. JACOBS, State Bar No. 158277 ROBERT W. LUCKINBILL, State Bar No. 131977 /2/Z/ § 2 GCA LAW PARTNERS LLP Q 2570 W. El Camino Real, Suite 400 3 Mountain View, CA 94040 Telephone: (650) 428-3900 4 Facsimile: (650) 428-3901 5 Attorneys for Defendants TERRY J. JOHNSTON and ROBERT GLYNN, JR. 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA . 8 IN AND FOR THE COUNTY OF SAN MATEO 9 FRED H. GEISLER, M.D., Ph.D.,an No. 17CIV02888 individual, and NORMAN C. FLEMING, an 10 individual, directly, and derivatively on EX PAR TE APPLICATION OF behalf of RHAUSLER, INC., a California DEFENDANTS TERRY JOHNSTON 11 Corporation, AND ROBERT GLYNN JR. FOR AN ' ORDER EXTENDING TIME TO FILE 12 Plaintiffs, RESPONSIVE PLEADING WITH RESPECT TO SECOND AMENDED 13 vs. COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES 14 TERRY J. JOHNSTON, an individual; KATIE SIMS, CPA, an individual; ROBERT 15 JOHN GLYNN, JR., an individual; 3COR MEDICAL, INC., California Corporation; 21 Ex Parte: November 22, 2017' 16 TEDAN SURGICAL INNOVATIONS, LLC, Time: 2 pm. a Texas Limited Liability Company, and Dept: Law & Motion 17 DOES 1 to 25, 18 Defendants, Complaint Filed: June 28, 2017 and RHAUSLER, INC., a California Tm” Date‘ Not SCI 19 Corporatlon, __fl_ _ _ _ 1i:clv——02888 20 EPA . App'mm" . Nominal Defendant. I 5:92;? 21 ‘1 2‘2 llllllllllllllllllllllllllll\Illl ' "“ TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: L — - ' 23 Pursuant to Rule 3.1200 et seq. of the California Rules of Court (“CRC”), Section 24 473 of the California Code of Civil Procedure, and Rule 2.3(C)(5) of the Superior Court of 25 California, County of San Mateo Local Court Rules (“Local Rules”), Defendants Terry J. 26 Johnston (“Johnston”) and Robert Glynn, Jr. (“Glynn” and collectively with Johnston, the 27 “Moving Parties”) respectfully submit this Ex Parte Application for an order extending EXPARTE APPL FOR ORDER EXTENDING TIME TO FILE RESPONSIVE PLEADING, MEMO OF P’S & A’S -1- WWW” ‘ 1 their time to file a responsive pleading in this action, whether it be to the First Amended 2 Verified Complaint, the Second Amended Verified Complaint, or some other yet to be 3 submitted complaining document. 4 This application is based on the facts that: (1) the Moving Parties’ responses to the 5 Second Amended Complaint are currently due to be filed and served on December 4, 2017; 6 (2) Co—Defendant TeDan Surgical Innovations, LLC (“TeDan”) has filed a motion to 7 revoke or vacate the court’s order granting plaintiffs leaVe to file the Second Amended 8 Complaint with a hearing date set for January 10, 2018; and (3) the uncertainty surrounding 9 the operative complaint warrants postponing the requirement that any defendant be 10 required to submit a responsive pleading until thirty (3 0) days following issuance by the 1 1 Court of a ruling on the pending TeDan motion at which point the uncertainty should be 1 2 removed. 13 In addition, and in the alternative, this application is based on the fact that the scope 14 of work required to prepare a responsive pleading in response to the Second Amended 15 Verified Complaint warrants an extension of time. . 16 In compliance with Rule 3.1201 , Moving Parties’ Ex Parte Application is 17 supported by the Memorandum of Points & Authorities set forth below and the Declaration 18 of James L. Jacobs in support of this Ex Parte Application (“Jacobs Decl.”), filed 1 9 concurrently herewith. 20 Notice of this Ex Parte Application was properly provided to all counsel. On 21 November 20, 2017, counsel for Moving Parties provided e-mail notice of this Ex Parte 22 Application to counsel for plaintiffs and counsel for all parties to this action in 23 conformance with CRC Rule 3.1204(b). Declaration of James L. Jacobs (“Jacobs Decl.”) 24 at 1[ 4 and Ex. A. In response, counsel for plaintiffs (Mr. Ryan) indicated that he would 25 oppose this Ex Parte Application. Id. at 11 4 and Ex. B. Accordingly, the parties have not 26 resolved this dispute or eliminated the need for this Ex Parte Application. 27 EXPARTE APPL FOR ORDER EXTENDING WWW” 331:. n cRcEIASI'éONSIVE 15%]; PLEADING, _2_ \ 1 MEMORANDUM OF POINTS AND AUTHORITIES - 2 A. Key Facts. 3 After having previously filed their initial Verified Complaint and 49-page First 4 Amended Verified Complaint (neither of which were ever at issue), on October 30, 2017, 5 plaintiffs filed a 66-page Second Amended Verified Complaint in this action. Jacobs Decl. 6 at 11 2. As a result, Moving Parties’ responsive pleadings are due on or before December‘4, 7 2017. Id. 8 On November 15, 2017, defendant TeDan Surgical Innovations, LLC (“TeDan”) 9 filed a motion to vacate or revoke the order granting plaintiffs leave to file a Second 10 Amended Verified ComplaintId. at 11 3. By its motion, TeDan seeks to have the Court 1 1 rescind its grant to. plaintiffs of leave to amend thereby resulting in the Court treating the 12 Second Amended Verified Complaint as if it had never been filed. Id. Were that motion to 13 be granted, the First Amended Complaint would be the operative document unless and 14 until leave to file another complaint were sought and obtained by plaintiffs. Id. A hearing is 15 set on that motion for Janum 10, 2018. Id. 16 B. Applicable Legal Authority. 17 The California Code of Civil Procedure provides that “[t]he court may, in 18 furtherance of justice, and on any terms as may be proper, . . . enlarge the time for answer 19 or demurrer.” Cal. Civ. Proc. Code § 473(a)(1). 20 The Local Rules of this .Court provide the procedure whereby a party may obtain 21 such an extension of time, providing that the time to respond to a pleading may be 22 extended ex parte by' the Court, stating 23 Before the time to respond has expired, any, party served with a complaint or cross- complaint may, with notice to all other parties in the action, make ex-parte 24 appllcatlon to the court upon good cause shown for an extensron of tlme to respond. 25 The filing of a timely application for an extension will automatically extend the time to respond by five days, whether or not the application is granted. Local Rule 2.3(C)(5)(c). :: EXPARTE 'APPL FOR ORDER EXTENDING Eyhlig‘gg‘gzhsl 213:;0NSIVE PLEADING, _3_ WWW” C. Good Cause Exists to Extend the Time for All Defendants to Serve and File Responsive Pleadingg. Given defendant TeDan’s motion to revoke or vacate the previously-entered order granting plaintiffs leave to amend that is set for hearing in January 2018, there is uncertainty COWVCDUI-D-OON—k as to Which document will ultimately be the operative complaint in this matter. The matter is not yet at issue, and it is completely unclear as to which complaint defendants will be called upon to respond. Requiring defendants to respond to a complaint that may shortly be withdrawn from the Court’s files accomplishes nothing other than to waste the Court’s time as well as the time and resources of the parties and their counsel. Tens of hours of attorney and client time are likely to be spent providing tie—rifled answers to the 66-page (260 paragraph) pleading. Jacobs Decl. at 11 2. Moreover, if defendants are required to answer now and if TeDan’s motion to vacate is subsequently granted, Moving Parties (and all other defendants) may then be required to spend significant additional hours responding to a materially different 49—page (211 paragraph) First Amended Complaint or some other operative complaint should plaintiffs seek leave of court 'to file one. Id. No legitimate interest is served by that result. Granting this Ex Parte Application for an extension of time to file and serve responsive pleadings will ensure the efficient process of pleading in this matter and will not prejudice anyone since this case is not yet at issue and has no trial date set. Such a ruling would also NNNNNNNNAAAAAAAAAA \ICDU'l-hCONAOCOCDVGU'l-bWN—‘O ensure that each party is not required to undertake potentially frivolous and costly exercises pending a determination of which is the operative complaint. Id. at 11 2. Counsel for specially appearing defendant TeDan and for nominal defendant Rhausler, Inc. have both expressed their support for the relief sought by this Ex Parte Application. Id. at 11 5. D. In the Alternative. Good Cause Exists to Extend by 15 davs (to December 19 2017) the Time for Moving Parties to Serve and File Responsive Pleadings. In the event the Court is not inclined to grant the application as detailed above, Moving Parties seek, in the alternative, an order extending their deadline to file a response to EXPARTE APPL FOR ORDER EXTENDING TIME TO FILE RESPONSIVE PLEADING, MEMO OF P s & A’S _ -4- _\ the current operative pleading to December 19, 2017. Good cause for such an extension exists for at least three separate reasons. m, as previously noted, not only is the Second Amended Verified Complaint a 66-page long, 260 paragraph opus; it is verified. Thus, any answer filed must also be verified. Preparing a verified response to such a lengthy, detailed» pleading entails a significant aniount of time and effort not only from counsel but from the Moving Parties themselves. Particularly in light of the Thanksgiving holiday, additional time M, (OCDNODU'l-t is warranted. Moving Party Johnston and his counsel are already presently involved in a significant level of activity in this case: plaintiffs, have, in just the last three weeks, sent more than 220—pages of meet and confer letters and prematurely filed a motion to compel — to . A O which Mr. Johnston and counsel are in the process of responding. Thus, plaintiff’ 5 Clear A -\ strategy is to throw the proverbial “kitchen sink”vat Moving Parties and then deny a reasonable request for an extension in order for plaintiffs to seek to gain an untoward ‘ A N A 00 advantage. Id. at 11 6. Third, there is no prejudice to plaintiffs if a 15-day extensiOn is A 4'3 granted. Simply stated, there is nothing presently scheduled in this case which is negatively A U1 impacted if Moving Parties are provided an extension (to December 19) to respond to the A 0) Second Amended Complaint. Id. at 1] 7. A \l A 00 Respectfully submitted, A (O MO Dated: November 22, 2017 GCA LAW PARTNERS LLP N —‘ NN N 00 .yQM/W AMEs L. JéyCOBS N -§ Atto sfor Defendants TERRY J. JOHNSTON and ROBERT N (11 GLYNN, JR. N CD N \l EXPARTE APPL. FOR ORDER EXTENDING TIME TO FILE RESPONSIVE PLEADING, MEMO OF P’S & A’S -5- GCA Law Pnnnm LLP (MONK-19W