Monster Energy Company v. Consolidated Distributors, Inc. et alMOTION to extend timeM.D. Fla.October 4, 2012UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION MONSTER ENERGY COMPANY, f/k/a HANSEN BEVERAGE COMPANY, d/b/a MONSTER BEVERAGE COMPANY (“MBC”), Plaintiff, vs. CONSOLIDATED DISTRIBUTORS, INC., METTEMP, INC., JOE COOL, INC., JOE COOL BIKE WEEK INC., DAVID BAKSHT, MICHELLE AMAR, AND YOSEF AMAR; Defendants. Case No. 6:11-CV-329-ORL-22DAB MOTION FOR LEAVE TO FILE A MOTION FOR SUMMARY JUDGMENT THREE DAYS AFTER THE DEADLINE FOR DISPOSITIVE MOTIONS BY DEFENDANT DAVID BAKSHT (Fed. R. Civ. P. 6(b)(1)(B)) Defendant David Baksht moves the Court pursuant to Federal Rule of Civil Procedure 6(b)(1)(B) for leave to file a motion for summary judgment three days after the deadline for dispositive motions set forth in the Case Management and Scheduling Order [DE 121]. Defendant Baksht’s motion for summary judgment (filed as Attachment 1 herewith) seeks an order dismissing the claims against him for lack of personal jurisdiction and on the grounds that he was not the moving and active force behind the infringement alleged in this action against defendant Consolidated Distributors, Inc. Fed.R.Civ.P. 6(b)(1)(B) provides, “When an act may or must be done within a Case 6:11-cv-00329-ACC-DAB Document 179 Filed 10/04/12 Page 1 of 5 PageID 5629 2 specified time, the court may, for good cause, extend the time:… (B) on motion made after the time has expired if the party failed to act because of excusable neglect.” The Case Management and Scheduling Order [DE 121] established the last day for the filing of dispositive motion as October 1, 2012. Defendant seeks leave to file his motion on October 4 for the following reasons: Because of the Jewish Holidays of Rosh Hashana, Yom Kippur and Succoth and the Jewish Sabbath, Defendant Baksht’s counsel was able to perform work according to Jewish law on only 8 of the 15 days from September 17 to October 1. In addition, on three of these days 8 on which counsel was permitted to work, there were depositions scheduled in this action, leaving counsel only five work days. (See the calendar below) Sunday Monday Tuesday Wednesday Thursday Friday Saturday September 17 Rosh Hashana 18 Rosh Hashana 19 Travel 20 Deposition Rodney Sacks 21 Deposition Tom Kelly 22 Sabbath 23 Travel 24 Deposition David Baksht 25 Yom Kippur Eve 26 Yom Kippur 27 28 29 Sabbath 30 1 Succoth; Dispositive Motions Deadline 2 Succoth 3 4 Counsel used two of the remaining 5 work days available to him to prepare for the depositions during this period. The remaining three days were used to prepare a motion for summary judgment on behalf of defendant Consolidated Distributors, Inc., which was timely filed on September 30 [DE 170], one day before the dispositive motion deadline. The reason that motion was filed one day early is because October 1, 2012 was the holiday of Succoth, on which according to Jewish law counsel was not permitted to work on or file the motion. The holiday of Case 6:11-cv-00329-ACC-DAB Document 179 Filed 10/04/12 Page 2 of 5 PageID 5630 3 Succoth continued through October 2, 2012. Therefore, counsel was unable to complete the motion for summary judgment for David Baksht until the evening of October 3, 2012. Defendant and his counsel are aware that the Court has stated in the Case Management and Scheduling Order, “Motions to extend the dispositive motions deadline or to continue the trial are generally denied. See Local Rule 3.05(c)(2)(E). The Court will grant an exception only when necessary to prevent manifest injustice.” Therefore, it is not without chagrin that counsel and defendant file this request for an extension of time. WHEREFORE, in the interest of justice, defendant Baksht respectfully requests that the Court grant the request for a three day extension of the dispositive motion deadline, and for such other and further relief as this Court deems just and proper. GOOD FAITH CERTIFICATION Pursuant to Local Rule 3.01(g), prior to filing this motion, counsel for the Mr. Baksht conferred with counsel for the Plaintiff in a good faith effort to resolve the issues raised by this motion, and Defendant’s counsel herein certifies that the parties could not agree upon the resolution of the motion. Respectfully submitted this 4 th day of October, 2012. ________________________________ MOSHE MORTNER, ESQ. New York Bar No.: 2085801 mm@mortnerlaw.com The Mortner Law Offices 40 Wall Street, 28 th Floor New York, NY 10005 646-820-8770 Telephone 646-304-3169 Facsimile Lead Counsel pro hac vice for Defendant CONSOLIDATED DISTRIBUTORS, INC. /s/ Peter J. Mackey Peter J. Mackey Case 6:11-cv-00329-ACC-DAB Document 179 Filed 10/04/12 Page 3 of 5 PageID 5631 4 Florida Bar No.: 0629138 Kristina Hager Snyderman Florida Bar No.: 0089327 MACKEY LAW GROUP, P.A. 1402 Third Avenue West Bradenton, FL 34205 (941) 746-6225 Telephone (941) 748-6584 Facsimile Local Counsel for Defendants, CONSOLIDATED DISTRIBUTORS, INC. Case 6:11-cv-00329-ACC-DAB Document 179 Filed 10/04/12 Page 4 of 5 PageID 5632 5 CERTIFICATE OF SERVICE I hereby certify that on October 4, 2012, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. __________________________________ MOSHE MORTNER, ESQ. New York Bar No.: 2085801 mm@mortnerlaw.com The Mortner Law Offices 40 Wall Street, 28 th Floor New York, NY 10005 646-820-8770 Telephone 646-304-3169 Facsimile Lead Counsel for Defendants, CONSOLIDATED DISTRIBUTORS, INC. and DAVID BAKSHT Case 6:11-cv-00329-ACC-DAB Document 179 Filed 10/04/12 Page 5 of 5 PageID 5633
