PLAINTIFFS' MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANTS KUSHGO, LLC, ARTHUR ANDREAYSAN, AND HALO BOARD, LLC'S EMERGENCY MOTION TO QUASH AMENDED DEPOSITION NOTICE AND FOR PROTECTIVE ORDER

[FIRST REQUEST]

RICHARD F. BOULWARE, II, District Judge.

Plaintiffs Equalia, LLC and Hoverboard Technologies Corporation (collectively "Equalia"), by and through their counsel of record, Ropers Majeski Kohn & Bentley, hereby moves this Court for an extension of time to respond to Defendants' Emergency Motion To Quash Amended Deposition Notice And For Protective Order (ECF No. 77 and 78).

Equalia's Motion for Extension of Time is based on the following Memorandum of Points and Authorities; the pleadings and papers on file herein; the Declaration of Lael D. Andara., counsel for Equalia; and any oral arguments that this Court will permit at a hearing on the matter.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

On February 17, 2017, Equalia conducted the deposition of Arthur Andreasyan, a Kusgho officer and employee. During the deposition, Equalia confirmed that Avetik Andreasyan, another crucial Kusgho officer and employee, held pertinent information and knowledge regarding Kushgo's operations in jurisdictions outside of California. That same day, Equalia served on Defendant's counsel a "Notice of Taking Deposition of Avetik Andreasyan" for February 24, 2017, which Equalia later re-noticed for March 7, 2017 to accommodate Avetik's extended absence from this country.

On February 21, 2017, Defendants filed an Emergency Motion to Quash Equalia's Amended Deposition Notice of Avetik Andreasyan. ECF No. 78. In this motion, Defendants falsely argue that Equalia is limited to only deposing Defendants' designated corporate representative about Kusgho's jurisdiction operations, and therefore cannot depose Avetik. Moreover, Defendants now erroneously claim that Avetik is not a Kusgho employee, and that Equalia must incur costly expenses and time to personally serve Avetik as a non-party.

Equalia refutes Defendants position and intend to oppose Defendants' Emergency Motion. Specifically, testimony developed during Arthur's deposition confirms that Avetik is an employee and managing agent for Kusgho, and therefore Equalia can notice his deposition without a subpoena. However, Equalia has been informed that a certified copy of Arthur's deposition transcript is not available to support Equalia's opposition until February 27, 2017. As a result, Equalia moves this Court for an extension to respond to Defendants' Emergency Motion until March 3, 2017, especially because Equalia will suffer prejudice absent this brief extension.

II. SUMMARY OF PERTINENT FACTS

Since February 2, 2017, Equalia informed Defendants that it intended to depose Avetik Andreasyan because Equalia believed Avetik would have relevant information to jurisdictional issues based on his representations to Equalia at the Consumer Electronics Show ("CES") in Las Vegas, Nevada. Andara Decl., ¶¶3-7, Ex. A-C. Specifically, at CES Avetik introduced himself to Equalia's officers and agents as a partner with Arthur Andreasyan in Kushgo and held himself out as a Kusgho officer to the public. Andara Decl., ¶¶3-5, Ex. B-C. Based on these representations, Equalia intended to depose Avetik pursuant to Federal Rules of Civil Procedure, Rule 30(a)(1) as a Kusgho managing agent and officer with factual knowledge about Kushgo's jurisdictional operations. Andara Decl., ¶7.

Notwithstanding this simple request, Defendants made specious arguments to obstruct Equalia's right underneath this Court's Discovery Plan and Scheduling Order to conduct basic jurisdictional discovery. ECF No. 66. Exemplary of this obstruction is Defendants' arguments that Equalia is only limited to depose a corporate representative of Defendants, and therefore cannot conduct further depositions of individuals who likely have jurisdictional information regarding Kusgho's operations. ECF No. 78, 3:1-4. Moreover, Defendants erroneously now claim Avetik is not a Kusgho employee, and that Equalia must incur costly expenses and time to personally serve Avetik as a non-party. ECF No. 2:22-3:1; Andara Decl., ¶7, 3:7-8. But this is nothing more than an apparent attempt by Defendants to avoid Avetik providing pertinent jurisdictional testimony.

For example, on February 6, 2017, the parties conducted a meet and confer to resolve this issue (among others) informally before noticing Avetik's deposition. Andara Decl. ¶7. At this meet and confer, Equalia's counsel made it specifically clear to Defendants' counsel that Equalia wanted to notice Avetik's deposition as a Kushgo managing agent with pertinent jurisdictional information. Andara Decl., ¶7, 3:5-6. Despite not making any factual inquiry into Avetik's employment relationship with Kusgho, Defendants' counsel represented Avetik was a non-party and Equalia needed to personally serve him. Andara Decl., ¶7, 3:7-8. Moreover, Defendants' counsel bluntly stated Kushgo was not going to consent to the depositions of Arthur's family members regardless of whether they were employees or not. Andara Decl., ¶7, 4:20-21. Instead, Defendants' counsel informed that Equalia would have to move to compel Avetik's deposition. Andara Decl., ¶7, 5:10-17.

Thereafter, on February 17, 2017, Equalia took the deposition of Arthur. Andara Decl., ¶8. During this deposition, Arthur testified that Avetik: (1) was one of two primary employees for Kushgo; (2) met with the manufacture of the infringing product that spawned this litigation; (3) was the primary person to communicate with the manufacturer over the last year; (4) worked at the Kushgo facility; (5) appeared on multiple social media postings and videos, (6) and was listed by Kushgo as the Chief Operating Officer at the recent CES show that Avetik had attended as an exhibitor for Kushgo. Andara Decl., ¶¶9-11. Based on Arthur's testimony, that same day Equalia served on Defendants' counsel a Notice of Taking Deposition of Avetik Andreasyan because it was clear Kushgo employed Avetik and he was a managing agent. Andara Decl., ¶¶12-14, Ex. F.

III. ARGUMENT

A. THIS COURT SHOULD EXTEND THE DATE FOR EQUALIA TO RESPOND TO DEFENDANTS' EMERGENCY MOTION BECAUSE ARTHUR'S TESTIMONY IS PERTINENT TO DECIDING THIS MOTION.

When Rule 30 was amended in 1970 to place a duty on a corporation to designate the person with the most knowledge of the subject area to be examined on the corporation, it did not preclude a party from requesting to depose a specific officer or agent of a corporation. United States v. One Parcel of Real Estate at 5860 N. Bay Rd., Miami Beach, Fla., 121 F.R.D. 439, 440 (S.D. Fla. 1988); Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625, 628 (C.D. Cal. 2005). As the advisory committee notes to the 1970 amendment state, "if the examining party believes that certain officials who have not testified pursuant to this subdivision have added information, he [or she] may depose them." Fed. R. Civ. P. 30 (1970 Advisory Committee Notes). Thus, a party wishing to depose a "specific officer or agent of a corporation may still obtain it and is not required to allow the corporation to decide for itself whose testimony the other party may have." One Parcel of Real Estate at 5860 N. Bay Rd., Miami Beach, Fla., 121 F.R.D. at 440.

Here, Defendants have moved to quash Equalia's deposition notice for Avetik because he allegedly is a non-party to this action. But despite this unsubstantiated claim, at Arthur's deposition on February 17, 2017, Arthur testified to numerous facts that demonstrate Avetik is not only a Kushgo employee, but a managing agent and officer with jurisdictional information. As such, a certified copy of Arthur's deposition transcript is pertinent to Equalia's opposition to Defendants' Emergency Motion. But Equalia has been informed that a certified copy of Arthur's deposition transcript is not available to support Equalia's opposition until February 27, 2017. Andara Decl. ¶29. Consequently, good cause exists under Local Rule IA-6-1 for this Court to extend the date for Equalia to file its opposition to Kushgo's Emergency Motion until after it receives a certified transcript of Arthur's deposition.

B. THIS COURT SHOULD EXTEND THE DATE FOR EQUALIA TO RESPOND TO DEFENDANTS' EMERGENCY MOTION BECAUSE EQUALIA WILL SUFFER PREJUDICE.

Under Local Rule 7-4, it is the policy of this Court to discourage the use of emergency motions. See L.R. 7-4(b) ("Emergency motions should be rare."). This is because the filing of emergency motions creates numerous problems for the opposing party and the court resolving them. Painter v. Atwood, No. 2:12-CV-01215-JCM, 2014 WL 6871750, at *1 (D. Nev. Nov. 25, 2014). As such, a Court retains the discretion to deny any matter submitted as an "`emergency' motion when, in fact, there is no emergency. Id.

Here, Defendants' insistence to resort to filing emergency motions consistently when no emergency is present has created numerous issues for Equalia that will cause prejudice if an extension is not granted. First, there was absolutely no emergency facing Defendants to justify them filing their motion on an emergency basis. Equalia has noticed Avetik's deposition for March 7, 2017. Therefore, Defendants had until March 7, 2017 to file any motion for a protective order, which would have precluded Equalia from conducting the deposition until this Court rendered an order on that motion. Moreover, if Defendants had regularly noticed their Emergency Motion, Equalia's response would not have been due until March 7, 2017. L.R. 7-2(b). Thus, a regularly noticed motion would also have provided Equalia sufficient time to obtain Arthur's deposition transcript. Additionally, Defendants' motion would have been fully briefed before this Court by March 14, 2017, creating no procedural issues because jurisdictional discovery does not conclude until April 13, 2017. The parties therefore would still have had a full month to conduct Avetik's deposition after March 14, 2017. ECF No. 66, 3:11-15. As a result, there was absolutely no emergency to cause Defendants to file another baseless Emergency Motion.

Secondly, Defendants' Emergency Motion prejudices Equalia from presenting vital evidence to this Court to resolve this dispute. As explained in great detail above, Arthur's testimony at his deposition is pertinent to resolving the issue before the Court. Therefore, Defendants' Emergency Motion forces Equalia to oppose their motion without this transcript and any time to brief this Court on these issues. This results in Equalia sustaining undue prejudice that is not warranted or curable. Simply stated, Defendants' Emergency Motion is nothing more than an ill-conceived attempt to cause this Court to resolve this dispute without Equalia introducing evidence against their position. This tactic is strongly disfavored, as this district has a policy to hear disputes on the merits and prevent a decision by ambush. See Silver State Broad., LLC v. Beasley FM Acquisition, No. 211CV01789APGCWH, 2016 WL 320110, at *4 (D. Nev. Jan. 25, 2016); see also Shakespear v. Wal-Mart Stores, Inc., No. 2:12-CV-01064-MMD, 2013 WL 6498898, at *4 (D. Nev. Dec. 10, 2013). Therefore, this Court should extend the date for Equalia to respond to Defendants' Emergency Motion until March 3, 2017 to avoid Equalia sustaining undue prejudice.

IV. CONCLUSION

For the reasons stated above, Equalia respectfully request this Court to extend the date for Equalia to respond to Defendants' Emergency Motion until March 3, 2017.

IT IS SO ORDERED:

DECLARATION OF LAEL D. ANDARA IN SUPPORT OF PLAINTIFFS' MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANTS KUSHGO, LLC, ARTHUR ANDREAYSAN, AND HALO BOARD, LLC'S EMERGENCY MOTION TO QUASH AMENDED DEPOSITION NOTICE AND FOR PROTECTIVE ORDER

I, Lael D. Andara, hereby declare as follows:

1. I am a partner in the law firm of Ropers Majeski Kohn & Bentley, counsel for Equalia LLC and Hoverboard Technologies Corporation (collectively, "Equalia") in this action. I am a member in good standing of the California State Bar, New York State Bar, the District of Columbia, and this Court. I have personal knowledge of the facts stated here and am familiar with the documents referred to below.

2. If called as a witness, I would competently testify to the following facts, all of which are within my own personal knowledge.

3. Contrary to Defendants unsubstantiated and false assertion at ECF 72 at 3:18-19, beginning on February 2, 2017 at 8:41 a.m., I notified defense counsel of our intent to depose Avetik Andreasyan who had met with Robert Bigler at CES and presented himself as a partner in Kushgo with Arthur Andreasyan.

4. Attached hereto as Exhibit A is a true and correct copy of the email exchange between myself and defense counsel on February 2, 2017.

5. I observed Avetik Andreasyan attending the CES tradeshow as an exhibitor for Halo Board over several days. Attached hereto as Exhibit B is a true and correct copy of a picture I took of the Haloboard booth where you can see Arthur and Avetik Andreasyan exhibiting under the Halo board banner.

6. Attached hereto as Exhibit C is a true and correct copy of a print out from the CES website that was posted by CES using information Kushgo provided that stated that Avetik Andreasyan was the Chief Operating Officer of Kushgo and listed his email as "purchasing@haloboard.com," which was marked as Exhibit 1 to the deposition of Arthur Andreasyan.

7. On February 6, 2017, a meet and confer was conducted. That meet and confer was recorded, at the defendants' request, and relevant excepts as to Equalia's request to depose Avetik are provided and consistent with my recollection of the call:

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8. On February 17, 2017, I took the deposition of Arthur Andreasyan as to jurisdictional and fact discovery issues in this case. This deposition was continued as the witness indicated to substantially all of the responses that he would have to review documents before he would answer.

9. My recollection of the testimony of Arthur Andreasyan is that Avetik is one of two primary employees of Kushgo who has a total staff of six individuals.

10. My recollection of the testimony of Arthur Andreasyan, is that Avetik and Arthur met with the manufacturer for dinner in Studio City California.

11. In the morning session of the February 17, 2007 deposition, I asked to speak with opposing counsel in the hall because of Arthur Andreasyan's testimony of the continuous and extensive work Avetik Andreasyan has performed for Kushgo. I began the conversation by asking if he would make Avetik available for deposition, to which opposing counsel looked stunned. I then reiterated that I had just heard his client admit that Avetik was the only one who met with the manufacturer of the accused product in China, was the primary person to communicate with the manufacturer over the last year, did work at the Kushgo facility, appeared on multiple social media postings and videos, and was listed by Kushgo as the Chief operating Officer at the recent CES show that Avetik had attended as an exhibitor for Kushgo. Counsel then indicated he would have to think about it, to which I reminded him that we had requested to conduct Avetik and Arthurs' deposition on February 2, 2017 at the same time based on their role as "partners" in Kushgo.

12. At the lunch break, I directed my associate to prepare a notice of deposition for Avetik Andreasyan based on the deposition testimony of Arthur Andreasyan. We had previously prepared a subpoena for his testimony as a non-employee. Attached hereto as Exhibit D is a true and correct copy of the email sent at 1:18 p.m. PST that I directed my associate to serve on counsel for Kushgo LLC, attaching the Notice of Deposition under Federal Rules of Civil Procedure 30 (b)(1) for Avetik Andreasyan.

13. Equalia did not notice the deposition of Avetik Andreasyan under Federal Rules of Civil Procedure 30 (b)(6) as defendants imply at ECF 72 3:19-20 and ECF 78 3:2-6.

14. Contrary to Defendants false assertion at ECF 72 1:23-25; 2:5-6 and 3:6-10, Equalia had not even drafted the notice of Deposition for Avetik Andreasyan until after I had heard substantiating testimony of Arthur Andreasyan that Kushgo had control and was employing Avetik. This was also after I had met and conferred with counsel in the hall.

15. At some point during the deposition and I believe on the record defense counsel Mr. Rinehart had invited us to send over a notice of Deposition for Avetik Andreasyan, but I cannot recall if that was before or after the lunch break. The statement will be in the transcript of the deposition.

16. My motivation in seeking the deposition notice of Avetik Andreasyan has been objectively stated from the beginning (see Exhibit A) based on his involvement with Kushgo as a partner, which he represented to Equalia while in Nevada, and his continuous and substantial activity for Kushgo outside of California performed for Kushgo as demonstrated by the testimony of Arthur Andreasyan. These facts provide a good faith basis for my belief that Avetik may have had contacts in Nevada on behalf of Kushgo beyond simply attending CES.

17. I have requested an expedited copy of the deposition of Arthur Andreasyan and was informed we will receive it on February 27, 2017.

I declare under penalty of perjury that the foregoing is true and correct. Executed on February 23, 2017, in Redwood City, California.

INDEX OF EXHIBITS ATTACHED TO DECLARATION OF LAEL ANDARA IN SUPPORT OF PLAINTIFFS' MOTION FOR EXTENSION OF TIME

EXHIBIT A — EMAIL DATED 2.2.17

EXHIBIT B — PHOTO AT CES

EXHIBIT C

CES EXHIBIT DIRECTORY FOR KUSHGO

EXHIBIT D — EMAIL DATED 2.17.17