Aequitas Capital Management motion to delay trial

8/20/2019 Aequitas Capital Management motion to delay trial

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DEFENDANT’S EX PARTE MOTION FOR AN ORDER CONTINUINGTRIAL; MEMORANDUM OF POINTS AND AUTHORITIES 12-CV-2446 CAB (JMA)

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HYONGSOON KIM (SBN 257019)[email protected] LLEWELLYN (SBN 267427)[email protected] E. MURRAY (SBN 293765) [email protected]

AKIN GUMP STRAUSS HAUER & FELD LLP2029 Century Park East, Suite 2400Los Angeles, California 90067-3010Telephone: 310.229.1000Facsimile: 310.229.1001

ERIC GAMBRELL (admitted pro hac vice)[email protected] GUMP STRAUSS HAUER & FELD LLP1700 Pacific Avenue, Suite 4100Dallas, Texas 75201Telephone: 214.969.2800Facsimile: 214.969.4343

Attorneys for Defendant and Counter-ClaimantAequitas Capital Management, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

AMERICAN STUDENT FINANCIAL

GROUP, INC., a Delaware corporation,and TRD CONSULTING, LLC, aMinnesota limited liability company,

Plaintiffs,

v.

AEQUITAS CAPITALMANAGEMENT, INC., an Oregoncorporation, and DOES 1-50, inclusive,

Defendants.

Case No. 12-cv-2446-CAB JMA

[Consolidated with Case No.12-cv-3082-CAB (JMA)]

DEFENDANT’S EX PARTE MOTIONFOR AN ORDER CONTINUINGTRIAL; MEMORANDUM OF POINTSAND AUTHORITIES

Crtrm.: 4CJudge: Hon Cathy Ann Bencivengo

Trial Date: March 14, 2016

AND RELATED COUNTER-CLAIMS.

Case 3:12-cv-02446-CAB-JMA Document 252 Filed 03/03/16 Page 1 of 5



1DEFENDANT’S EX PARTE MOTION FOR AN ORDER CONTINUING

TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES 12-CV-2446 CAB (JMA)

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EX PARTE MOTION

TO THE COURT, PLAINTIFFS, AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE THAT pursuant to Local Rules 83.3(g) and

16.1(d)(3)(c) and Federal Rule of Civil Procedure Rule 16, Defendant Aequitas Capital

Management, Inc. (“Aequitas”) will and hereby does move ex parte for an Order

continuing all currently calendared dates and to set a Case Management Conference

date, allowing the Court to reschedule all associated dates in the above-captioned

matter, in the Court’s discretion.

This ex parte request is based on the fact that Defendant has suffered financial

difficulties that have led to planned severe layoffs and the recent retention of bankruptcy

counsel. These financial difficulties will require Defendant to revise and develop its

counter-claim for breach of contract and affirmative defenses (including, by way of

example only, Defendant’s alternative offset defense), including as a result of Plaintiffs’

breach of the Consulting Services Agreement. Of at least equal importance, the

continuance is brought as a notification and sought to avoid the waste of judicial,

attorney, and client resources given the possibility of a bankruptcy filing that could

result in this case being stayed just prior to trial (or during or soon after trial). In that

event, trial preparation and Court resources would be inefficiently utilized. The related

action in San Diego County state court was continued on March 3, 2016 to September

23, 2016.

Good cause exists to hear this matter on an ex parte basis and to grant the relief

requested pursuant to Federal Rule of Civil Procedure Rule 16. As set forth in the

concurrently filed Declaration of Eric Gambrell, this ex parte Motion is made aftermeeting and conferring with counsel for Plaintiffs, including on February 29, 2016,

fulfilling the requirements set forth in Local Rule 83.3(g). Plaintiffs’ counsel indicated

that they would be opposing this ex parte Motion. Gambrell Decl. ¶ 3.

The names, address, telephone number, and email addresses for Plaintiff’s

counsel are:








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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Defendant Aequitas Capital Management, Inc. (“Aequitas or Defendant”) hereby

applies to this Court ex parte for an order continuing trial, currently set for March 14,2016 to August 22, 2016 or a date convenient to the Court’s calendar and for a

continuance of all trial-related deadlines. Good cause exists for this continuance, and

such a continuance will support the interests of justice and best serves the interests of

fairness and judicial efficiency without prejudice to either party.

II. ARGUMENT

A. Good Cause Exists to Continue the Trial Date.

The Federal Rules of Civil Procedure and Ninth Circuit authority empower this

Court to grant a trial continuance upon an affirmative showing of good cause. Ungar v.

Sarafite, 376 U.S. 575, 589 (1964), Sherman v. U.S., 241 F.2d 329, 338 (9th Cir. 1957).

As set forth below, good cause exists for this continuance and the Court should grant

this ex parte Motion.

Defendant moves this Court for continuance of the currently set March 14, 2016

to August 22, 2016. Gambrell Decl., ¶ 2. No party would be prejudiced by the granting

of this request. This request for a short continuance is necessitated by the severe

financial difficulties faced by Defendant Aequitas Capital Management, Inc., which

have been heavily reported in the media. Defendant has retained restructuring counsel

and advisors. The continuance is sought to allow Defendant to develop its damages

model in light of these development as well as its affirmative defenses (including among

others, offset) to reflect the severe harm caused by Plaintiffs’ breach of the ConsultingServices Agreement, in, among other things, failing to advise Defendant and otherwise

fulfill their contractual obligations. Of at least equal importance – the continuance is

also sought to avoid the waste of judicial, attorney, and client resources (on both sides)

given the possibility of an impending bankruptcy filing that could result in this case

being stayed just prior to trial (or during trial or in the post-trial phase). In that event,






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the significant trial preparation and Court resources utilized on pretrial matters would be

inefficiently used. The related action pending in San Diego County state court was

continued on March 3, 2016 to September 23, 2016.

B.

Good Cause Exists for Hearing This Matter on an Ex Parte BasisDefendant will suffer irreparable harm if its request for a trial continuance is not

heard on an ex parte basis in not having sufficient time to develop its damages theories

in light of the financial problems of Defendant. Given the impending commencement

of trial on March 14, 2016, Defendant will suffer prejudice if the above-caption matter if

this Motion is not heard on an ex parte basis.

III. CONCLUSION

Defendants respectfully request an Order granting a continuance of trial to August

22, 2016 or a date convenient to the Court’s calendar and to set a Case Management

Conference date, allowing the Court to reschedule all associated dates in the above-

captioned matter in the Court’s discretion.

Date : Marc 3, 2016 AKIN GUMP STRAUSS HAUER & FELD LLP

By s/ Eric GambrellEric Gambrell

Attorneys for Defendant and Counter-ClaimantAe uitas Ca ital Mana ement, Inc.


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Aequitas Capital Management motion to delay trial