Preview
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Ala a
Robert M. Bodzin, State Bar No. 201327
Katrina R. Durek, State Bar No. 289461
AMNI—t
BURNHAM BROWN
A Professional Law Corporation
P. O. Box 119
" ‘
Oakland California 94604 SAEMEATIF‘OEORTY
1901 Harrison Street, 14th Floor :SEP‘ 0 5‘ 2018
'
U]
Oakland, California 94612
Telephone: (510) 444—6800 .
,
Clef parlorc'ourt
Facsimile: (510) 835—6666
rbodzin@burnhambrown.com
kdurek@burnhambrown.com
,
9v
may:
17—GIV— 02888
Attorneys for Specially—Appearing Defendant ”'5
. Declaration'In Support It
DANNY FlSHMAN 1362503
I
10 IllIlIIlIIlIlIIIIllIIIllIlIlIlIllIlI l
11 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO '
12 CIVIL DIVISION —, SOUTHERN BRANCH
13 UNLIMITED JURISDICTION
14 FRED H. GEISLER, M.D., Ph..D., an Case No. 17CIV028'88
individual and NORMAN C; FLEMING, an ~
15 individual, directly, and derivatively on DECLARATION OF ROBERT M.
behalf of RHAUSLER, INC., a California BODZIN IN SUPPORT OF
.16. Corporation, .
SPECIALLY-APPEARING
DEFENDANT DANNY FlSHMAN’S
‘ ‘
17 Plaintiffs, REPLY IN SUPPORT OF MOTION TO
-
QUASH SERVICE OF SUMMONS
13 v. ,
'
AND SECOND AMENDED
COMPLAINT FOR LACK OF
19 TERRY J. JOHNSTON, an individual; PERSONAL JURISDICTION
KATIE SIMS, CPA, an individual;
20 ROBERT JOHN GLYNN, JR., an'
individual; BCOR MEDICAL, lNC., a ,
‘
21 California Corporation; TEDAN _
SURGICAL INNOVATIONS, LLC, a Date: September 12, 2018
22 Texas Limited Liability Company, and Time: 9:00 am.
DOES 1 to 25, Dept: 2
23
Defendants. Complaint Filed: June 28, 2017
24 7
Second Amended Complaint Filed:
And RHAUSLER, |NC., a California May 29,2018 _
25 Corporation, Trial Date: None Set
'26. Nominal Defendant.
27
28 .
1
.
‘
DECLARATION OF ROBERT M. BODZIN ISO SPECIALLY—APPEARING -
Case NO. 17CIV02888
DEFENDANT DAN'NY FISHMAN'S REPLY ISO MOTION TO QUASH
SERVICE OF SUMMONS AND SECOND AMENDED COMPLAINT FOR
LACK OF PERSONAL JURISDICTION
l, ROBERT M. BODZIN, declare:
1. I am an attorney licensed to practice. before all courts in the State of
California. I am a partner of the law firm of Burnham Brown, counsel of record for
Specially—Appearing Defendant Danny Fishman. in this action. The following is based
on my personal knowledge and if called as a witness, I could and would testify
C
i
competently thereto.
2. on October 13, 2017, I emailed Plaintiffs’ counsel offering Mr. Fishman for
a 3—hour deposition in Sugar Land, Texas, to be completed by November 13, 2017.
Attached hereto as Exhibit A is a true and correct copy of the email l sent to Jeffrey
10 Ryan on October 13, 2017. I made this offer immediately following the Court’s
11 publication of its tentative ruling on Tedan’s Motion to Quash and ruling that the
12 .
Plaintiffs be permitted limited jurisdictional discovery of Tedan.
13 3. Mr. Ryan declined to take Mr. Fishman’s deposition, stating that Plaintiffs
14 already knew what Mr. Fishman would say. Attached hereto as Exhibit B is a true and
15 correct copy of the email l received from Mr. Ryan.
16 4. l sent another letter to Mr. Ryan on October 24, 2017, renewing the offer
17 for Plaintiffs to depose Mr. Fishman pursuant to the Court’s instructions. Attached
1'8
hereto as Exhibit C is a true and correct copy of the letter sent to Mr. Ryan.
I
19 5. Mr. Ryan responded via letter on October 25, 2017, stating that Plaintiffs
20 had “absolutely no interest in‘ deposing Danny Fishman.” Attached hereto as Exhibit D
21 is a true and correct copy of the letter received from Mr. Ryan on October 25, 2017.
I
22 I declare under penalty of perjury under the laws of the State of California that
23
24
25
26
27
28
(£21018, at Oakland, California.
4833-5614-0913, v. 1
%
the foregoing is true and correct, and that this declaration was executed on September
ROBERT M. BODZIN
2
DECLARATION OF ROBERT M. BODZIN ISO SPECIALLY—APPEARING Case No. 17CIV02888
DEFENDANT DANNY FISHMAN’S REPLY ISO MOTION TO QUASH
SERVICE OF SUMMONS AND SECOND AMENDED COMPLAINT FOR
LACK OF PERSONAL JURISDICTION
EXHIBIT A .
Katrina Durek
From: Robert Bodzin
Sent: Thursday, August 23, 2018 9:44 AM
To: Katrina Durek
Subject: FW: Geisler vs. Johnston et al
Follow Up Flag: Follow up
Flag Status: Flagged
Original Message——---
—————
From: jhagan@haganlaw.com [mailtozjhagan@haganlaw.com]
Sent: Friday, October 13, 2017 4:03 PM
To: Robert Bodzin ; 'Jeffrey Ryan'
Cc: 'Tina Ernst' ; 'JimmyJacobs' ; 'Cynthia Smith'
; tprountzos@gnhllp.com; FNeuman@gnhllp.com; Eugene Lee
; 'Ron Katz' ; 'Judy Lucero' ; Rogelio
Serrano-Gutierrez ; Damyta Jones—Wilson
Subject: RE: Geisler vs. Johnston et al
Hi Robert,
Jeff is on a plane right now and I would like the opportunity to discuss your proposal with him before I commit to
anything, However, please note that we would also like to take the deposition of Terry Johnston and Rowena Mier and
to propound some Requests for Admissions.
We will get back to you this evening or tomorrow morning on a substantive response to your proposal.
Thanks,
Jennifer
Jennifer Hagan
Hagan Law
535 Middlefield Road, Suite 190
Menlo Park, CA 94025
Office: (650) 322-8498
Mobile: (650) 533—3111
This email may contain CONFIDENTIAL INFORMATION and may be subject to the attorney-client privilege. It is intended
only for the use of the intended recipient(s). If you are not an intended recipient, please be aware that any review, use,
'
dissemination, distribution, downloading, or copying of this communication is unauthorized and prohibited. In addition,
if you have received this communication in error, please immediately notify us by reply email, delete the communication
and destroy all copies. Thank you.
----- Original Message-----
From: Robert Bodzin [mailto:rbodzin@BurnhamBrown.com]
.Sent: Friday, October 13, 2017 3:53 PM
To: Jeffrey Ryan ; jhagan@haganlaw. com
Cc: Tina Ernst ; Jimmy Jacobs ; Cynthia Smith ,-
'
tprountzos@gnhllp. com; FNeuman@gnhllp. com; E'ugene Lee ; Ron Katz
; Judy Lucero ; Rogelio Serrano— Gutierrez ;,Damyta Jones-Wilson
Subject: Re: Geisler vs. Johnston et al -
Jeff & Jennifer. amwriting this email from a hallway ofaconference am at today so cannot attach the court's
I I I
tentative ruling on TeDan's motion‘to quash. It is available on the court's .law and motion tentative ruling website;
TeDanwilI not be opposing the tentative ruling.
’
\
Consistent with the Court' a instructions, I propose the following limited discovery schedule for plaintiffs, with time
limits.
1. 3hour deposition of Danny Fishman In Sugarland, Texas to be completed by 11/13/17 (subject to approval of date by
Fishman -'who Is Orthodox & I cannot reach him today due to him being Orthodox)
Mr
2.2 hour visual walk-through of the TeDan Sugarland, Texas facility before or after Mr. Fishman's deposition by
11/13/17; again date subject to approval from Mr Fishman
3. Plaintiff's supplemental briefing further opposing TeDan's motion to quash, due to be filed/served/& email served on
11/21/17 ,
.
4. TeDan's supplemental briefing in further support of its motion to quash robbery filed/served/email served on 11/28 _
5. Hearing on TeDan's motion toquash set for 12/4/17('subject to court availability)
As per the court's tentative. ruling, Please advise as to your agreement to this proposed limited discovery.
Thank you.
"Robert M.ABodzin - Partner
BURNHAM BROWN
P. O. Box 119- Oakland, CA 94604
Direct: 510. 835. 6833- Fax: 51.0 835. 6666 Oakland--Los Angeles- San Francisco
-Nevada https: //protect- us.mimecast.com/s/RKWOBtAZWt4
This E— mail message is
for the sole use of the intended recipient(s) and may contain confidential attorney client,
confidential attorney work product, and other confidential and privileged information. Any unauthorized review, use,
disclosure or distribution Is prohibited. If you are not the intended recipient, please contact the sender by reply E- mail
.
and destroy all copies of the original message
On Oct 13, 2017, at 9:20 AM, Jimmy Jacobs > wrote:
r
Robert/Ryan,
If there is a tentative ruling on Robert’s motion and either of you contest it, please include me on your notice of
your intent to contest. plan on attending the hearing via courtcall to listen in, so under the local rules, I may also need
I
to call in this afternoon to let the court know. lam going to be at an offsite all day, so I am also asking that you please
make sure to also copy Tina Ernst of my office on any notice of intent to appear, as she may end up contacting the court
on my behalf.
Thank you.
Jimmy
PLEASE NOTE OUR NEW SUlTE NUMBER
James L. Jacobs
GCA Law Partners LLP
2570 W. Camino Real, Suite 400
El
'
Mountain View, CA 94040
Telephone: (650) 428—3900
Facsimile: (650) 428—3901 .
Internet: jjacobs@gcalaw.com
Website: https://protect—us.mimecast.com/s/nKoABLtYKie
This email may contain confidential and privileged material for the sole use of the intended recipient. Any review or
distribution by others is strictly prohibited. If you are not the intended recipient please contact the sender and delete all
copies.
EXHIBIT B
Katrina Durek
From: Robert Bodzin
Sent: Thursday, August 23, 2018 9:45 AM
To: Katrina Durek
‘
Subject: _
FW: Geisler vs. Johnston et aI
Follow Up Flag: Follow up
Flag Statusz. Flagged
From. Jeffrey Ryan [mailto :Jeff@jeffreyryanlaw. com]
Sent: Friday, October 13, 2017 5:08 PM
To: Robert Bodzin
Cc: jhagan@hagan|aw.com; Tina Ernst ; Jimmy Jacobs ; Cynthia Smith
‘
; tprountzos@gnhllp.com; FNeuman@gnhi|p.com; Eugene Lee
; Ron Katz ; Judy Lucero ; Rogelio
Serrano-Gutierrez ; Damyta Jones-Wilson
Subject: Re: Geisier vs. Johnston et al ~
Robert: My plane has been delayed due to the visibilityissues due to the fire.
We would like to depose Danny Bass for 2 hours; Rowena Meir for 2 hours; Terry Johnston for 3 hours. We
already know what Mr. Fishman is going to say so I don’t think a trip down to Tedan’s warehouse facilities is
necessary. We would also like to serve 10 RFAs on Tedan. Finally, we will meet and confer with Jimmy
regarding his woefully inadequate responses to our written discovery. If we are unable to work out a solution
informally we will need to bring a motion to compel before we can schedule a hearing on Tedan’ s motion to
quash. Got to shut off my phone now. Jeff
Sent from my iPhone
On Oct 13, 2017, at 6:53 PM, Robert Bodzin wrote:
Jeff & Jennifer. I am writing this email from a hallway of a conference I am at today so I cannot ,,
attach the court‘ 5 tentative ruling on TeDan' s motion to quash. It is available on the court' 5 law
and motion tentative ruling website.
TeDan will not be opposing the tentative ruling.
Consistent with the Court' a instructions, I propose the following limited discovery schedule for
plaintiffs with time limits:
1. 3hour deposition of Danny Fishman in Sugarland, Texas to be completed by 11/13/17
(subject to approval of date by-Mr F ishman who is Orthodox & I cannot reach him today due to
him being Orthodox) .
2. 2 hour visual walk-through of the TeDan Sugarland, Texas facility before or after Mr.
r
I
1
Fishman's deposition by 1 1/ 13/17; again date subject to approval from Mr Fishman
3. Plaintiffs-supplemental
briefing further opposing TeDan's motion to quash, due to be
’
filed/served/& email served on 11/21/17
4. TeDan's supplemental briefing in further Support of its motion to quash robbery
filed/served/email served on 11/28
5. Hearing on TeDan's motion to quash set for l2/4/17(subject to court availability)
As per the court's tentative ruling, Please advise as to your agreement to this proposed limited
discovery. ,
Thank you.
Robert M. Bodzin - Partner
'
BURNHAM BROWN p
P. O. Box 119--Oakland, CA 94604 '
Direct: 510. 835. 6833--:Fax 510. 835. 6666
. Oakland- Los Angeles- San Francisco -Nevada ,
WWW.BurnhamBrown.com
This E-mail message is for the Sole use of the intended recipient(s) and may contain confidential
attorney client, confidential attorney work product, and other confidential and privileged
information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are
not the intended recipient, please contact the sender by reply E—mail and destroy all copies of the
original message.
On Oct 13, 2017, at 9:20 AM, Jimmy Jacobs
> wrote:
Robert/Ryan,
If there is a tentative ruling on Robert’s motion and either of you contest it, please
include me on your notice of your intent to contest. I plan on attending the hearing via courtcall
to listen in, so under the local rules, I may also-need to call in this afternoon to let the court know
J
.I am going to be at an offsite all day, so I am also asking that you please make sure to also
copy Tina Ernst of my office on any notice of intent to appear, as she may end up contacting the
court on my behalf.
Thank you.
J immy
PLEASE NOTE OUR NEW SUITE NUMBER
'
James L. Jacobs
GCA Law Partners LLP
2570 W. El Camino Real, Suite 400
'Mountain View, CA 94040
Telephone: (650) 428-3900
‘Facsimile: (650) 428-3901
Internet: iiacobs@gcalaw.com
Website: www.gcalaw.com
This emailmay contain confidential and privileged material for the sole use of the intended
recipient. Any review or distribution by others is strictly prohibited. If you are not the intended
recipient please Contact the sender and delete all copies.
'
EXHIBIT C
fl BURNHAM
h BROWN
A PROFESSIONAL LAW CORPORAHo’N
R M
rbodzin@burnhambrowncom
,
Direct Dial (510) 835-6833
October 24, 2017
VIA EMAIL
Jeffrey F. Ryan
LAW OFFICES OF JEFFREY F. RYAN
The Fitzpatrick Building
'2000 BroadWay-‘Street
Redwo‘odCity, CA 94063
Re: MD, Ph.D., at al. v. TerryJ. Johnston, et a],
Fred H. Geisler,
San Mateo County Superior Court Case No. 17CIV02888
Dear Mr. ‘Ryan:
Thislette‘r Continues the meet and confer on Judge Novak’s October 13 tentative
ruling. .As I have not received a response from you to my October 17 letter, ‘I address the
remainingvoutstanding‘ items from. that letter below and incorporate pesitions on the limited
discovery provided by counsel for Terry Johnston and Rhausler, Inc.
Renewal of TeDan’s Offer of Limited Discovery
a. Deposition of Danny‘Fishman, who is the member who owns the highest‘individual
3'
percentage ‘of'TeDan. The offer is for Mr. Fishman’s deposition to take noilonger'than
hours and to proceed in Sugar Land, Texas where he is based.
b. TeDan also reaffirms its offer to Plaintiffs to have a 2-hour visual inspection at TeDan’s
Sugar Land offices and facility and requests only that a NDA be signed for all in
attendance.
Follow-up on Plaintiffs’ Requested Limited Discovery & Proposed SupplementalBriefinggi
Court Hearing on Motion to Quash
1. Terry Johnston: 3-hour depOsition in Menlo Park on the topics of the limited
discovery on TeDan’s-Motion to Quash: Terry Johnston’s defense counsel Jimmy Jacobs
consents and has asked that the time spent by Mr. Johnston on this deposition count against" the
7-hour'time limit set forth in CCP § 2025.290.
O’a’kland l Eos Angeles I San Francisco I Reno l Las Vegas 1901 Harrison Street I 14th Floor Oakland | CA 94612-3501
|
P. O, Box 119 [ Oakland |
CA 94604-0119 mailing address 510-444-6800 telephone l 510—835—6666 facsimile
Jeffrey F. Ryan -
.
Re: Geisler, M.D., Ph.D., et al. v. Johnston, et
'
a1.
'
October 24, 2017
‘
Page 2
2. Walk—Through & Right to Photograph office at 837 Industrial Road, San _
Carlos: Rhausler’s counsel Cindy Smith confirmed consent to this visual inspection. Again,
please note TeDan does not own or hold the lease to this office, and as such, I had no ability to
'
arrange the inspection.
3. Rowena Mier — 3-hour deposition in Menlo Park on the tepics of the limited ,
discovery on TeDan’s Motion to Quash: TeDan is not Ms. Mier’s employer and has no ability to
produce her for deposition. Terry J ohnston’s defense counsel Jimmy Jacobs consents and has '
asked that the time spent by Mr. Johnston on this deposition count against the 7—hour time limit
'
set forth in CCP § 2025.290.
4. Daniel Bass — 3~hour deposition in Menlo Park: While Mr. BaSs is a TeDan
member, it is Mr. Fishman who is the TeDan member who is most knowledgeable on the
company’s executive decision—making, functions and operations. As such, I am again proposing
you reconsider your position and proceed with Mr. Fishman’s deposition so you can question the
TeDan member with the most knowledge of all subjects at issue on the motion to quash.
5. 10 Requests for Admissions Propounded to TeDan: Again, this is agreeable as
long as the topics are limited to what is at issue on the motion to quash and that TeDan has all
rights under CCP § 2033 to respond and/or object. Any responses will be verified.
6. 10 Requests for Admissions Propounded to Terry Johnston: As I do not represent
Mr. Johnston individually, this request needs to be worked out between you and Mr. Jacobs. I
note Plaintiff Geisler already served 33 request for admissions to Mr. Johnston and received
responses. Mr. Jacobs does not agree to this request, but there are no restrictions beyond those
set by CCP § 2033 on further discovery to Mr. Johnston.
7. Further Briefing Schedule: I renew my proposal made in my October 13 email
and my October 17 letter, which is that Plaintiffs’ supplemental briefing further Opposing .
TeDan’s motion to quash, due to be filed/served/email served on November 21, with TeDan’s
supplemental briefing in further support of its motion to quash robbery filed/served/emai] served
on November 28. I believe the court needs specific dates from us, and it is not efficient to have
deadlines triggered by the receipt of deposition transcripts, which can fluctuate based on a
reporter’s workload and whether you pay a higher fee for a rush/expedited transcript.
8. Hearing on TeDan’s Motion to Quash: As proposed in my October 17 letter, I
propose December 4 for this hearing (subject to Court availability). Again, the court asked for a
specific date in the tentative ruling and this is what we need to provide.
As we agreed to on October 16, we are working towards the goal of having a joint
stipulation with agreed upon limited discovery, briefing schedule with a new court date filed by
October 30 or alternatively, if agreements on all points cannot be reached, to request a briefing .
'
,. Jeffrey F. Ryan
Re: Geisler, M.D., Ph.D., et al. v.’Johnston, et a1.
'
October 24, 2017
Page 3
schedule that permits other interested defendants to participate and submit briefs concerning the
limited discovery proposed.
Given that October 30 is fast approaching, I am asking that you electronically
respond to my letter by close of business tomorrow.
Sincerely,
'RMBzdjw
cc: Jennifer Hagan
Cynthia P. Smith
James L. Jacobs
Farley J. Neuman
EXHIBIT D
LAW I‘I‘ICTSOTJEFFREYF. RYAN
. ANASSOCIAI‘ION or AZI’FORNEYS‘
‘ '
‘THETEITSFATRISKBUILDING
2000;? BROADWAY S 111131:T
REDWOOD CITY, CAuronNIA 94063-1802
£14650) 022-2341
JEFFREY F. RYAN
jeff@jje‘ffr’reyryanl‘aW:cern
I ‘ ..
.Qstolbsrfiiés 201.17
BY ELECTRONIC TRANSMISSION
Robert M Bodzin Esq,
BURNHAM BBQ; ii
1"
:rzbodzini@_flb,urnhambrowu.eom‘
P. .0. Box 1.19.
01111111111201 946.1121
iRe'; Gezsler, et aI. :11; Johnston, et. 111,1 S311 Mateo No 17CIV02888,, Meet. and
ConferRegardmg Plaintiffs nht to Conduct Court Ordered Limited
Over TeDan
Beat Robert,
I have your lette of
sterday afternoon but am: perplexed by your failure to
sent a letter to" you With speczfc proposals for
complylng with Judg Order granting plaintiffs the right to don'duef limited
1
discovery You1: response to th ettdr WaS a masterpiece i11 hemrmng- d—hawmg,
.
Withoht. any direct answers to 9111', proposals
However rather than prolong W" atmay be an eXerCISe in creating a favorable
record (but; of:What?) .E'fi’fst Want to again make it abundantly and unrmstakably clear. that;
plamtiffs have absolutel; no: interest in do" 0Sin -7:Dann 1' Fishman. I have explained
,
repeatedly that We: want to hear from Danny Bass, the TeD'an- partner who resides in
California. we are awarethatDanny Fishman haSa one pereent- (1%) greater ownership
interest in. TeDan tha ‘ass, an , Terry Johnston, and We appreciate your efforts to
be helpful, but, again 1 Mr. Bass we aim; to, depose, So, even though Sugarland, Texas
is undoubtedly loyel’y‘ thiS 111111: of year, We: Will: not need to travel there unless Judge
Novak takes‘the extraordmary Step of selecting which of TeDan’ s‘ Dannys we are allowed
to depoSe Danny Bass resides just 40 miles from Menlo Park, Which IS Where my
10/16/2017 letter proposed deposing him for 3' hours. Let’s, pick the date and time before
the Court 1s asked to mtervene
Second, and {as to the deposmon of Terry. Johnston we do NOT agreethat the 3-
hours for his deposition should or} Shall be deducted from the 7 hour limit under C2 C P §
2025 290 We do agree that by producmg his client for the 3- hours of: limited-scope
Page?
deposmon Mr. Jacobs does not Waive any argument that he may later make regarding the
anibit of §2025 .290. .
As; to the walk-through and photographs of Rhaus‘ler 5 offices at: 837 Industrial
Road at San Carlos, I disagree that you cannot arrange for that inspection, but youif
belieVe TeDan 3 connection to the premises is that attenuated then the dates selected
need only be convenient for Plaintiffs,Rhausler and Mr. Johnston You and your client
need not concern yourselves With this 1ss‘ue, unless your dismterest is merely feigned
Keep In mind that Dr Gelsler 1s a Director of Rhausler and as such does not need
anyone? 5 perrmssmn to visit the: company.
Similarly, and While We dispute your assertion that Rowena Mier- 13-. not TeDan '3
employee you apparently do: not believe her testimony is germane However Since Mr.
Jacobs will represent Ms. Mier at her 3-hour deposmon We Will agree that he, on behalf
of his chent(s) reserves the right to argue that §2025 290 requires that the time expended
on: that binned-scope deposmon should be dedu'Ct‘ed from the statutory, 7 hour limit I
Will confer With Mr- Johnston s attorney as to a‘ mutually agreeable date/time
We W111 agree to Wlthdraw our Request for 10 additional Adrmssrons Mr;
..
‘
by
sufficient for now
Should further, or supplemental briefing be necessary on TeDan’ “mot1on to:
vvWWW/WWWVWMWMWWINM110%:4“,“
’quash robbery (Sic),” We agree that Plaintiffs papers Will be filed and served 9 court days
1005..
before the hearing, and TeDT‘ 3; papers Will be filed and sen/ed 5 court days before the
heamng, a provrded by C C.P. §
As for selecting 1a hearing date for TeDanz’ s quashal motion, it does 1101 make sense:
to clog, the Court’s calendar with a proceeding that eVents, 1nclud1ng the: limited
discovery that Judge Novak authorized, may obviate. The reporter’ s transcripts of ”the
deposmons of; Messrs Bass and Johnston and Ms. Mier, may provide d1sposmve
evrdence on the Jurisdicuon issue, so Plamhffs continue to propose that no heanng on
that “motion to quash robbery. (sic)” be set until, at the earliest 14 days: after the final
transcript has been- Sent to the parties. If you have to piek a date now then let’s go With
January 30, 2018-. .
”A
In Sum, we only need (1) dates and times for the 3-hour deposmons, at; Menlo mam/«WI...
Park; of Messrs Bass and Johnston and Ms Mier, and (2) a date and time for the walk-
through and photographic inspection of the offices at 837 Industrial ROad, San Carlos. As
gnawa
you noted; October 30 is fast-approachmg, so I ask that we have definitive resolution to:
those two outstanding issues by 5 00 pm PDT, Friday, October 27, 2.017.
JFR/jl
Preview
I Ala a Robert M. Bodzin, State Bar No. 201327 Katrina R. Durek, State Bar No. 289461 AMNI—t BURNHAM BROWN A Professional Law Corporation P. O. Box 119 " ‘ Oakland California 94604 SAEMEATIF‘OEORTY 1901 Harrison Street, 14th Floor :SEP‘ 0 5‘ 2018 ' U] Oakland, California 94612 Telephone: (510) 444—6800 . , Clef parlorc'ourt Facsimile: (510) 835—6666 rbodzin@burnhambrown.com kdurek@burnhambrown.com , 9v may: 17—GIV— 02888 Attorneys for Specially—Appearing Defendant ”'5 . Declaration'In Support It DANNY FlSHMAN 1362503 I 10 IllIlIIlIIlIlIIIIllIIIllIlIlIlIllIlI l 11 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO ' 12 CIVIL DIVISION —, SOUTHERN BRANCH 13 UNLIMITED JURISDICTION 14 FRED H. GEISLER, M.D., Ph..D., an Case No. 17CIV028'88 individual and NORMAN C; FLEMING, an ~ 15 individual, directly, and derivatively on DECLARATION OF ROBERT M. behalf of RHAUSLER, INC., a California BODZIN IN SUPPORT OF .16. Corporation, . SPECIALLY-APPEARING DEFENDANT DANNY FlSHMAN’S ‘ ‘ 17 Plaintiffs, REPLY IN SUPPORT OF MOTION TO - QUASH SERVICE OF SUMMONS 13 v. , ' AND SECOND AMENDED COMPLAINT FOR LACK OF 19 TERRY J. JOHNSTON, an individual; PERSONAL JURISDICTION KATIE SIMS, CPA, an individual; 20 ROBERT JOHN GLYNN, JR., an' individual; BCOR MEDICAL, lNC., a , ‘ 21 California Corporation; TEDAN _ SURGICAL INNOVATIONS, LLC, a Date: September 12, 2018 22 Texas Limited Liability Company, and Time: 9:00 am. DOES 1 to 25, Dept: 2 23 Defendants. Complaint Filed: June 28, 2017 24 7 Second Amended Complaint Filed: And RHAUSLER, |NC., a California May 29,2018 _ 25 Corporation, Trial Date: None Set '26. Nominal Defendant. 27 28 . 1 . ‘ DECLARATION OF ROBERT M. BODZIN ISO SPECIALLY—APPEARING - Case NO. 17CIV02888 DEFENDANT DAN'NY FISHMAN'S REPLY ISO MOTION TO QUASH SERVICE OF SUMMONS AND SECOND AMENDED COMPLAINT FOR LACK OF PERSONAL JURISDICTION l, ROBERT M. BODZIN, declare: 1. I am an attorney licensed to practice. before all courts in the State of California. I am a partner of the law firm of Burnham Brown, counsel of record for Specially—Appearing Defendant Danny Fishman. in this action. The following is based on my personal knowledge and if called as a witness, I could and would testify C i competently thereto. 2. on October 13, 2017, I emailed Plaintiffs’ counsel offering Mr. Fishman for a 3—hour deposition in Sugar Land, Texas, to be completed by November 13, 2017. Attached hereto as Exhibit A is a true and correct copy of the email l sent to Jeffrey 10 Ryan on October 13, 2017. I made this offer immediately following the Court’s 11 publication of its tentative ruling on Tedan’s Motion to Quash and ruling that the 12 . Plaintiffs be permitted limited jurisdictional discovery of Tedan. 13 3. Mr. Ryan declined to take Mr. Fishman’s deposition, stating that Plaintiffs 14 already knew what Mr. Fishman would say. Attached hereto as Exhibit B is a true and 15 correct copy of the email l received from Mr. Ryan. 16 4. l sent another letter to Mr. Ryan on October 24, 2017, renewing the offer 17 for Plaintiffs to depose Mr. Fishman pursuant to the Court’s instructions. Attached 1'8 hereto as Exhibit C is a true and correct copy of the letter sent to Mr. Ryan. I 19 5. Mr. Ryan responded via letter on October 25, 2017, stating that Plaintiffs 20 had “absolutely no interest in‘ deposing Danny Fishman.” Attached hereto as Exhibit D 21 is a true and correct copy of the letter received from Mr. Ryan on October 25, 2017. I 22 I declare under penalty of perjury under the laws of the State of California that 23 24 25 26 27 28 (£21018, at Oakland, California. 4833-5614-0913, v. 1 % the foregoing is true and correct, and that this declaration was executed on September ROBERT M. BODZIN 2 DECLARATION OF ROBERT M. BODZIN ISO SPECIALLY—APPEARING Case No. 17CIV02888 DEFENDANT DANNY FISHMAN’S REPLY ISO MOTION TO QUASH SERVICE OF SUMMONS AND SECOND AMENDED COMPLAINT FOR LACK OF PERSONAL JURISDICTION EXHIBIT A . Katrina Durek From: Robert Bodzin Sent: Thursday, August 23, 2018 9:44 AM To: Katrina Durek Subject: FW: Geisler vs. Johnston et al Follow Up Flag: Follow up Flag Status: Flagged Original Message——--- ————— From: jhagan@haganlaw.com [mailtozjhagan@haganlaw.com] Sent: Friday, October 13, 2017 4:03 PM To: Robert Bodzin ; 'Jeffrey Ryan' Cc: 'Tina Ernst' ; 'JimmyJacobs' ; 'Cynthia Smith' ; tprountzos@gnhllp.com; FNeuman@gnhllp.com; Eugene Lee ; 'Ron Katz' ; 'Judy Lucero' ; Rogelio Serrano-Gutierrez ; Damyta Jones—Wilson Subject: RE: Geisler vs. Johnston et al Hi Robert, Jeff is on a plane right now and I would like the opportunity to discuss your proposal with him before I commit to anything, However, please note that we would also like to take the deposition of Terry Johnston and Rowena Mier and to propound some Requests for Admissions. We will get back to you this evening or tomorrow morning on a substantive response to your proposal. Thanks, Jennifer Jennifer Hagan Hagan Law 535 Middlefield Road, Suite 190 Menlo Park, CA 94025 Office: (650) 322-8498 Mobile: (650) 533—3111 This email may contain CONFIDENTIAL INFORMATION and may be subject to the attorney-client privilege. It is intended only for the use of the intended recipient(s). If you are not an intended recipient, please be aware that any review, use, ' dissemination, distribution, downloading, or copying of this communication is unauthorized and prohibited. In addition, if you have received this communication in error, please immediately notify us by reply email, delete the communication and destroy all copies. Thank you. ----- Original Message----- From: Robert Bodzin [mailto:rbodzin@BurnhamBrown.com] .Sent: Friday, October 13, 2017 3:53 PM To: Jeffrey Ryan ; jhagan@haganlaw. com Cc: Tina Ernst ; Jimmy Jacobs ; Cynthia Smith ,- ' tprountzos@gnhllp. com; FNeuman@gnhllp. com; E'ugene Lee ; Ron Katz ; Judy Lucero ; Rogelio Serrano— Gutierrez ;,Damyta Jones-Wilson Subject: Re: Geisler vs. Johnston et al - Jeff & Jennifer. amwriting this email from a hallway ofaconference am at today so cannot attach the court's I I I tentative ruling on TeDan's motion‘to quash. It is available on the court's .law and motion tentative ruling website; TeDanwilI not be opposing the tentative ruling. ’ \ Consistent with the Court' a instructions, I propose the following limited discovery schedule for plaintiffs, with time limits. 1. 3hour deposition of Danny Fishman In Sugarland, Texas to be completed by 11/13/17 (subject to approval of date by Fishman -'who Is Orthodox & I cannot reach him today due to him being Orthodox) Mr 2.2 hour visual walk-through of the TeDan Sugarland, Texas facility before or after Mr. Fishman's deposition by 11/13/17; again date subject to approval from Mr Fishman 3. Plaintiff's supplemental briefing further opposing TeDan's motion to quash, due to be filed/served/& email served on 11/21/17 , . 4. TeDan's supplemental briefing in further support of its motion to quash robbery filed/served/email served on 11/28 _ 5. Hearing on TeDan's motion toquash set for 12/4/17('subject to court availability) As per the court's tentative. ruling, Please advise as to your agreement to this proposed limited discovery. Thank you. "Robert M.ABodzin - Partner BURNHAM BROWN P. O. Box 119- Oakland, CA 94604 Direct: 510. 835. 6833- Fax: 51.0 835. 6666 Oakland--Los Angeles- San Francisco -Nevada https: //protect- us.mimecast.com/s/RKWOBtAZWt4 This E— mail message is for the sole use of the intended recipient(s) and may contain confidential attorney client, confidential attorney work product, and other confidential and privileged information. Any unauthorized review, use, disclosure or distribution Is prohibited. If you are not the intended recipient, please contact the sender by reply E- mail . and destroy all copies of the original message On Oct 13, 2017, at 9:20 AM, Jimmy Jacobs > wrote: r Robert/Ryan, If there is a tentative ruling on Robert’s motion and either of you contest it, please include me on your notice of your intent to contest. plan on attending the hearing via courtcall to listen in, so under the local rules, I may also need I to call in this afternoon to let the court know. lam going to be at an offsite all day, so I am also asking that you please make sure to also copy Tina Ernst of my office on any notice of intent to appear, as she may end up contacting the court on my behalf. Thank you. Jimmy PLEASE NOTE OUR NEW SUlTE NUMBER James L. Jacobs GCA Law Partners LLP 2570 W. Camino Real, Suite 400 El ' Mountain View, CA 94040 Telephone: (650) 428—3900 Facsimile: (650) 428—3901 . Internet: jjacobs@gcalaw.com Website: https://protect—us.mimecast.com/s/nKoABLtYKie This email may contain confidential and privileged material for the sole use of the intended recipient. Any review or distribution by others is strictly prohibited. If you are not the intended recipient please contact the sender and delete all copies. EXHIBIT B Katrina Durek From: Robert Bodzin Sent: Thursday, August 23, 2018 9:45 AM To: Katrina Durek ‘ Subject: _ FW: Geisler vs. Johnston et aI Follow Up Flag: Follow up Flag Statusz. Flagged From. Jeffrey Ryan [mailto :Jeff@jeffreyryanlaw. com] Sent: Friday, October 13, 2017 5:08 PM To: Robert Bodzin Cc: jhagan@hagan|aw.com; Tina Ernst ; Jimmy Jacobs ; Cynthia Smith ‘ ; tprountzos@gnhllp.com; FNeuman@gnhi|p.com; Eugene Lee ; Ron Katz ; Judy Lucero ; Rogelio Serrano-Gutierrez ; Damyta Jones-Wilson Subject: Re: Geisier vs. Johnston et al ~ Robert: My plane has been delayed due to the visibilityissues due to the fire. We would like to depose Danny Bass for 2 hours; Rowena Meir for 2 hours; Terry Johnston for 3 hours. We already know what Mr. Fishman is going to say so I don’t think a trip down to Tedan’s warehouse facilities is necessary. We would also like to serve 10 RFAs on Tedan. Finally, we will meet and confer with Jimmy regarding his woefully inadequate responses to our written discovery. If we are unable to work out a solution informally we will need to bring a motion to compel before we can schedule a hearing on Tedan’ s motion to quash. Got to shut off my phone now. Jeff Sent from my iPhone On Oct 13, 2017, at 6:53 PM, Robert Bodzin wrote: Jeff & Jennifer. I am writing this email from a hallway of a conference I am at today so I cannot ,, attach the court‘ 5 tentative ruling on TeDan' s motion to quash. It is available on the court' 5 law and motion tentative ruling website. TeDan will not be opposing the tentative ruling. Consistent with the Court' a instructions, I propose the following limited discovery schedule for plaintiffs with time limits: 1. 3hour deposition of Danny Fishman in Sugarland, Texas to be completed by 11/13/17 (subject to approval of date by-Mr F ishman who is Orthodox & I cannot reach him today due to him being Orthodox) . 2. 2 hour visual walk-through of the TeDan Sugarland, Texas facility before or after Mr. r I 1 Fishman's deposition by 1 1/ 13/17; again date subject to approval from Mr Fishman 3. Plaintiffs-supplemental briefing further opposing TeDan's motion to quash, due to be ’ filed/served/& email served on 11/21/17 4. TeDan's supplemental briefing in further Support of its motion to quash robbery filed/served/email served on 11/28 5. Hearing on TeDan's motion to quash set for l2/4/17(subject to court availability) As per the court's tentative ruling, Please advise as to your agreement to this proposed limited discovery. , Thank you. Robert M. Bodzin - Partner ' BURNHAM BROWN p P. O. Box 119--Oakland, CA 94604 ' Direct: 510. 835. 6833--:Fax 510. 835. 6666 . Oakland- Los Angeles- San Francisco -Nevada , WWW.BurnhamBrown.com This E-mail message is for the Sole use of the intended recipient(s) and may contain confidential attorney client, confidential attorney work product, and other confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply E—mail and destroy all copies of the original message. On Oct 13, 2017, at 9:20 AM, Jimmy Jacobs > wrote: Robert/Ryan, If there is a tentative ruling on Robert’s motion and either of you contest it, please include me on your notice of your intent to contest. I plan on attending the hearing via courtcall to listen in, so under the local rules, I may also-need to call in this afternoon to let the court know J .I am going to be at an offsite all day, so I am also asking that you please make sure to also copy Tina Ernst of my office on any notice of intent to appear, as she may end up contacting the court on my behalf. Thank you. J immy PLEASE NOTE OUR NEW SUITE NUMBER ' James L. Jacobs GCA Law Partners LLP 2570 W. El Camino Real, Suite 400 'Mountain View, CA 94040 Telephone: (650) 428-3900 ‘Facsimile: (650) 428-3901 Internet: iiacobs@gcalaw.com Website: www.gcalaw.com This emailmay contain confidential and privileged material for the sole use of the intended recipient. Any review or distribution by others is strictly prohibited. If you are not the intended recipient please Contact the sender and delete all copies. ' EXHIBIT C fl BURNHAM h BROWN A PROFESSIONAL LAW CORPORAHo’N R M rbodzin@burnhambrowncom , Direct Dial (510) 835-6833 October 24, 2017 VIA EMAIL Jeffrey F. Ryan LAW OFFICES OF JEFFREY F. RYAN The Fitzpatrick Building '2000 BroadWay-‘Street Redwo‘odCity, CA 94063 Re: MD, Ph.D., at al. v. TerryJ. Johnston, et a], Fred H. Geisler, San Mateo County Superior Court Case No. 17CIV02888 Dear Mr. ‘Ryan: Thislette‘r Continues the meet and confer on Judge Novak’s October 13 tentative ruling. .As I have not received a response from you to my October 17 letter, ‘I address the remainingvoutstanding‘ items from. that letter below and incorporate pesitions on the limited discovery provided by counsel for Terry Johnston and Rhausler, Inc. Renewal of TeDan’s Offer of Limited Discovery a. Deposition of Danny‘Fishman, who is the member who owns the highest‘individual 3' percentage ‘of'TeDan. The offer is for Mr. Fishman’s deposition to take noilonger'than hours and to proceed in Sugar Land, Texas where he is based. b. TeDan also reaffirms its offer to Plaintiffs to have a 2-hour visual inspection at TeDan’s Sugar Land offices and facility and requests only that a NDA be signed for all in attendance. Follow-up on Plaintiffs’ Requested Limited Discovery & Proposed SupplementalBriefinggi Court Hearing on Motion to Quash 1. Terry Johnston: 3-hour depOsition in Menlo Park on the topics of the limited discovery on TeDan’s-Motion to Quash: Terry Johnston’s defense counsel Jimmy Jacobs consents and has asked that the time spent by Mr. Johnston on this deposition count against" the 7-hour'time limit set forth in CCP § 2025.290. O’a’kland l Eos Angeles I San Francisco I Reno l Las Vegas 1901 Harrison Street I 14th Floor Oakland | CA 94612-3501 | P. O, Box 119 [ Oakland | CA 94604-0119 mailing address 510-444-6800 telephone l 510—835—6666 facsimile Jeffrey F. Ryan - . Re: Geisler, M.D., Ph.D., et al. v. Johnston, et ' a1. ' October 24, 2017 ‘ Page 2 2. Walk—Through & Right to Photograph office at 837 Industrial Road, San _ Carlos: Rhausler’s counsel Cindy Smith confirmed consent to this visual inspection. Again, please note TeDan does not own or hold the lease to this office, and as such, I had no ability to ' arrange the inspection. 3. Rowena Mier — 3-hour deposition in Menlo Park on the tepics of the limited , discovery on TeDan’s Motion to Quash: TeDan is not Ms. Mier’s employer and has no ability to produce her for deposition. Terry J ohnston’s defense counsel Jimmy Jacobs consents and has ' asked that the time spent by Mr. Johnston on this deposition count against the 7—hour time limit ' set forth in CCP § 2025.290. 4. Daniel Bass — 3~hour deposition in Menlo Park: While Mr. BaSs is a TeDan member, it is Mr. Fishman who is the TeDan member who is most knowledgeable on the company’s executive decision—making, functions and operations. As such, I am again proposing you reconsider your position and proceed with Mr. Fishman’s deposition so you can question the TeDan member with the most knowledge of all subjects at issue on the motion to quash. 5. 10 Requests for Admissions Propounded to TeDan: Again, this is agreeable as long as the topics are limited to what is at issue on the motion to quash and that TeDan has all rights under CCP § 2033 to respond and/or object. Any responses will be verified. 6. 10 Requests for Admissions Propounded to Terry Johnston: As I do not represent Mr. Johnston individually, this request needs to be worked out between you and Mr. Jacobs. I note Plaintiff Geisler already served 33 request for admissions to Mr. Johnston and received responses. Mr. Jacobs does not agree to this request, but there are no restrictions beyond those set by CCP § 2033 on further discovery to Mr. Johnston. 7. Further Briefing Schedule: I renew my proposal made in my October 13 email and my October 17 letter, which is that Plaintiffs’ supplemental briefing further Opposing . TeDan’s motion to quash, due to be filed/served/email served on November 21, with TeDan’s supplemental briefing in further support of its motion to quash robbery filed/served/emai] served on November 28. I believe the court needs specific dates from us, and it is not efficient to have deadlines triggered by the receipt of deposition transcripts, which can fluctuate based on a reporter’s workload and whether you pay a higher fee for a rush/expedited transcript. 8. Hearing on TeDan’s Motion to Quash: As proposed in my October 17 letter, I propose December 4 for this hearing (subject to Court availability). Again, the court asked for a specific date in the tentative ruling and this is what we need to provide. As we agreed to on October 16, we are working towards the goal of having a joint stipulation with agreed upon limited discovery, briefing schedule with a new court date filed by October 30 or alternatively, if agreements on all points cannot be reached, to request a briefing . ' ,. Jeffrey F. Ryan Re: Geisler, M.D., Ph.D., et al. v.’Johnston, et a1. ' October 24, 2017 Page 3 schedule that permits other interested defendants to participate and submit briefs concerning the limited discovery proposed. Given that October 30 is fast approaching, I am asking that you electronically respond to my letter by close of business tomorrow. Sincerely, 'RMBzdjw cc: Jennifer Hagan Cynthia P. Smith James L. Jacobs Farley J. Neuman EXHIBIT D LAW I‘I‘ICTSOTJEFFREYF. RYAN . ANASSOCIAI‘ION or AZI’FORNEYS‘ ‘ ' ‘THETEITSFATRISKBUILDING 2000;? BROADWAY S 111131:T REDWOOD CITY, CAuronNIA 94063-1802 £14650) 022-2341 JEFFREY F. RYAN jeff@jje‘ffr’reyryanl‘aW:cern I ‘ .. .Qstolbsrfiiés 201.17 BY ELECTRONIC TRANSMISSION Robert M Bodzin Esq, BURNHAM BBQ; ii 1" :rzbodzini@_flb,urnhambrowu.eom‘ P. .0. Box 1.19. 01111111111201 946.1121 iRe'; Gezsler, et aI. :11; Johnston, et. 111,1 S311 Mateo No 17CIV02888,, Meet. and ConferRegardmg Plaintiffs nht to Conduct Court Ordered Limited Over TeDan Beat Robert, I have your lette of sterday afternoon but am: perplexed by your failure to sent a letter to" you With speczfc proposals for complylng with Judg Order granting plaintiffs the right to don'duef limited 1 discovery You1: response to th ettdr WaS a masterpiece i11 hemrmng- d—hawmg, . Withoht. any direct answers to 9111', proposals However rather than prolong W" atmay be an eXerCISe in creating a favorable record (but; of:What?) .E'fi’fst Want to again make it abundantly and unrmstakably clear. that; plamtiffs have absolutel; no: interest in do" 0Sin -7:Dann 1' Fishman. I have explained , repeatedly that We: want to hear from Danny Bass, the TeD'an- partner who resides in California. we are awarethatDanny Fishman haSa one pereent- (1%) greater ownership interest in. TeDan tha ‘ass, an , Terry Johnston, and We appreciate your efforts to be helpful, but, again 1 Mr. Bass we aim; to, depose, So, even though Sugarland, Texas is undoubtedly loyel’y‘ thiS 111111: of year, We: Will: not need to travel there unless Judge Novak takes‘the extraordmary Step of selecting which of TeDan’ s‘ Dannys we are allowed to depoSe Danny Bass resides just 40 miles from Menlo Park, Which IS Where my 10/16/2017 letter proposed deposing him for 3' hours. Let’s, pick the date and time before the Court 1s asked to mtervene Second, and {as to the deposmon of Terry. Johnston we do NOT agreethat the 3- hours for his deposition should or} Shall be deducted from the 7 hour limit under C2 C P § 2025 290 We do agree that by producmg his client for the 3- hours of: limited-scope Page? deposmon Mr. Jacobs does not Waive any argument that he may later make regarding the anibit of §2025 .290. . As; to the walk-through and photographs of Rhaus‘ler 5 offices at: 837 Industrial Road at San Carlos, I disagree that you cannot arrange for that inspection, but youif belieVe TeDan 3 connection to the premises is that attenuated then the dates selected need only be convenient for Plaintiffs,Rhausler and Mr. Johnston You and your client need not concern yourselves With this 1ss‘ue, unless your dismterest is merely feigned Keep In mind that Dr Gelsler 1s a Director of Rhausler and as such does not need anyone? 5 perrmssmn to visit the: company. Similarly, and While We dispute your assertion that Rowena Mier- 13-. not TeDan '3 employee you apparently do: not believe her testimony is germane However Since Mr. Jacobs will represent Ms. Mier at her 3-hour deposmon We Will agree that he, on behalf of his chent(s) reserves the right to argue that §2025 290 requires that the time expended on: that binned-scope deposmon should be dedu'Ct‘ed from the statutory, 7 hour limit I Will confer With Mr- Johnston s attorney as to a‘ mutually agreeable date/time We W111 agree to Wlthdraw our Request for 10 additional Adrmssrons Mr; .. ‘ by sufficient for now Should further, or supplemental briefing be necessary on TeDan’ “mot1on to: vvWWW/WWWVWMWMWWINM110%:4“,“ ’quash robbery (Sic),” We agree that Plaintiffs papers Will be filed and served 9 court days 1005.. before the hearing, and TeDT‘ 3; papers Will be filed and sen/ed 5 court days before the heamng, a provrded by C C.P. § As for selecting 1a hearing date for TeDanz’ s quashal motion, it does 1101 make sense: to clog, the Court’s calendar with a proceeding that eVents, 1nclud1ng the: limited discovery that Judge Novak authorized, may obviate. The reporter’ s transcripts of ”the deposmons of; Messrs Bass and Johnston and Ms. Mier, may provide d1sposmve evrdence on the Jurisdicuon issue, so Plamhffs continue to propose that no heanng on that “motion to quash robbery. (sic)” be set until, at the earliest 14 days: after the final transcript has been- Sent to the parties. If you have to piek a date now then let’s go With January 30, 2018-. . ”A In Sum, we only need (1) dates and times for the 3-hour deposmons, at; Menlo mam/«WI... Park; of Messrs Bass and Johnston and Ms Mier, and (2) a date and time for the walk- through and photographic inspection of the offices at 837 Industrial ROad, San Carlos. As gnawa you noted; October 30 is fast-approachmg, so I ask that we have definitive resolution to: those two outstanding issues by 5 00 pm PDT, Friday, October 27, 2.017. JFR/jl