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BUCHALTER

A PROFESSIONAL C ORPORATION

L OS A NGELES MOTION FOR ADMINISTRATIVE RELIEF TO ADVANCE THE HEARING DATE ON DEFENDANTS' 

MOTION TO EXCLUDE UNTIMELY ADDITIONS: CASE NO.: CASE NO. 5:17-CV-00287-BLF 

MATTHEW L. SEROR (SBN: 235043) 

BUCHALTER, A Professional Corporation 

1000 Wilshire Boulevard, Suite 1500 

Los Angeles, CA 90017-1730 

Telephone: 213.891.0700 

Fax: 213.896.0400 

Email: mseror@buchalter.com 

DYLAN W. WISEMAN (SBN: 173669) 

BRANDON M. CARR (SBN: 280959) 

BUCHALTER, A Professional Corporation 

55 Second Street, Suite 1700 

San Francisco, CA 94105-3493 

Telephone: 415.227.0900 

Fax: 415.227.0770 

Email: dwiseman@buchalter.com; 

bcarr@buchalter.com

Attorneys for Defendants JOHN HANDLERY and HANDLERY HOTELS, INC. and 

Counterclaimant HANDLERY HOTELS, INC. 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

JGX, INC., a California corporation; NICK 

BOVIS; BOVIS FOODS, LLC; and SMTM 

TECHNOLOGY, LLC, a limited liability 

company, 

Plaintiffs, 

vs. 

JON HANDLERY; HANDLERY HOTELS, a 

California corporation; SAM SINGER; and 

SINGER ASSOCIATES, INC., 

Defendants. 

 Case No. 5:17-cv-00287-BLF 

MOTION FOR ADMINISTRATIVE 

RELIEF TO ADVANCE THE HEARING 

DATE ON DEFENDANTS' MOTION TO 

EXCLUDE PLAINTIFFS' UNTIMELY 

ADDITIONS TO THEIR RULE 26 

DISCLOSURES OR IN THE 

ALTERNATIVE TO REOPEN 

DISCOVERY AND FOR SANCTIONS 

LOCAL RULE 7-11 MOTION 

HANDLERY HOTELS, INC., a California 

corporation, 

Counterclaimant, 

vs. 

JGX, INC., a California corporation; and SMTM 

TECHNOLOGY, LLC, a limited liability 

company, 

Cross-Defendants. 

 

Case 5:17-cv-00287-BLF Document 95 Filed 10/29/19 Page 1 of 5
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BUCHALTER

A PROFESSIONAL C ORPORATION

L OS A NGELES

1 

MOTION FOR ADMINISTRATIVE RELIEF TO ADVANCE THE HEARING DATE ON DEFENDANTS' 

MOTION TO EXCLUDE UNTIMELY ADDITIONS: CASE NO.: CASE NO. 5:17-CV-00287-BLF 

TO THE HONORABLE BETH LABSON FREEMAN, UNITED STATES 

DISTRICT COURT JUDGE: 

Defendants and Counter-Claimants Jon Handlery and Handlery Hotels, (collectively, 

“Defendants”), hereby file their unopposed motion for administrative relief to advance the 

hearing date on Defendants’ Motion to Exclude Plaintiffs’ Untimely Additions to Their Rule 26 

Disclosures or in the Alternative to Reopen Discovery and For Sanctions [Dkt. 94] (“Motion to 

Exclude”) from January 16, 2020 to November 21, 2019. Counsel for both parties have stipulated 

to this hearing date, or as soon thereafter as is convenient for the Court. 

As set forth in the Motion to Exclude (Dkt. 94), Plaintiffs JGX, Inc., Nick Bovis, Bovis 

Foods, LLC and SMTM Technology, LLC (collectively, “Plaintiffs”) served their Amended 

Supplemental Disclosures Pursuant to Federal Rule of Civil Procedure 26(e)(1) on October 11, 

2019, almost two and a half years after their initial disclosures, more than two years after their 

First Amended Complaint, and after discovery closed. These disclosures include, for the first 

time, eight new witnesses and a new damages theory, for which there has been no fact-finding. 

This case is progressing quickly, and the parties cannot stop simply because of Plaintiffs’ 

untimely disclosures. Defendants are scheduled to file their Motion for Summary Judgment on 

November 4, 2019. Trial is set for April 13, 2020. Advancing the hearing date on the Motion to 

Exclude is appropriate because the parties cannot wait until January 16, 2020 to find out if 

Defendants will need to conduct additional depositions and written discovery based on the 

untimely disclosures. At that point it will be too late to prepare for trial, let alone seek relief 

through a dispositive motion. As a result, there is good cause to hear the Motion to Exclude as 

soon as possible. 

DATED: October 29, 2019 BUCHALTER 

A Professional Corporation 

By: /s/ Dylan W. Wiseman 

MATTHEW L. SEROR 

DYLAN W. WISEMAN 

BRANDON M. CARR 

Attorneys for Defendants JOHN HANDLERY 

and HANDLERY HOTELS, INC. and 

Counterclaimant HANDLERY HOTELS, INC. 

Case 5:17-cv-00287-BLF Document 95 Filed 10/29/19 Page 2 of 5
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BUCHALTER

A PROFESSIONAL C ORPORATION

L OS A NGELES

BN 38109920v1 2 

MOTION FOR ADMINISTRATIVE RELIEF TO ADVANCE THE HEARING DATE ON DEFENDANTS' 

MOTION TO EXCLUDE UNTIMELY ADDITIONS: CASE NO.: CASE NO. 5:17-CV-00287-BLF

MEMORANDUM OF POINTS AND AUTHORITIES 

I. INTRODUCTION 

More than two years after the pleadings were finalized, after discovery closed, and just 

months before trial, Plaintiffs served Amended Supplemental Disclosures pursuant to Federal 

Rule of Civil Procedure 26, disclosing for the first time eight new witnesses and a new damages 

theory. Defendants immediately filed their Motion to Exclude Plaintiffs’ Untimely Additions to 

Their Rule 26 Disclosures or in the Alternative to Reopen Discovery and For Sanctions [Dkt. 94] 

(“Motion to Exclude”), but were not able to receive a hearing date earlier than January 16, 2020. 

With this motion, Defendants seek to advance the hearing date of Defendants’ motion to an 

earlier date, ideally on November 21, 2019. If the parties are required to wait until January 16, 

2020 for the Motion to Exclude to be decided, it will be too late for the parties to prepare for trial. 

A decision needs to be made as to whether the untimely witnesses and damage theory should be 

permitted. As a result, there is good cause for the Court to hear the Motion to Exclude as soon as 

possible. Plaintiffs’ counsel has agreed not to oppose this motion for administrative relief as long 

as the hearing date for this motion is set three weeks from now. 

II. STATEMENT OF RELEVANT FACTS 

Plaintiffs served their Initial Disclosures Pursuant to Federal Rule of Civil Procedure 

26(a)(1) (the “Initial Disclosures”) on or about May 19, 2017. (Declaration of Matthew L. Seror 

in Support of Motion to Exclude, Dkt. 94-2 (“Seror Decl.”) at ¶ 2, Exh. A.) The Initial 

Disclosures also set forth two theories of damages, one for alleged lost revenue for third party 

licensing and franchising deals, and one for Plaintiffs’ alleged lost revenue as a result of their 

inability to finalize a new lease for a LEFTY O’DOUL’S restaurant and bar. (Seror Decl. at ¶ 2, 

Exh. A.) Defendants conducted substantial written discovery and depositions focusing on the 

witnesses and damages theories disclosed in the Initial Disclosures. (Seror Decl. at ¶¶ 3-5.) 

Fact discovery closed on October 1, 2019, and trial is now set for April 13, 2020. (Dkt. 

No. 88.) Defendants are scheduled to file their Motion for Summary Judgment on November 4, 

2019. (Dkt. No. 86.) 

On or about October 2, 2019, Plaintiffs served Plaintiffs’ Supplemental Disclosures 

Case 5:17-cv-00287-BLF Document 95 Filed 10/29/19 Page 3 of 5
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BUCHALTER

A PROFESSIONAL C ORPORATION

L OS A NGELES

BN 38109920v1 3 

MOTION FOR ADMINISTRATIVE RELIEF TO ADVANCE THE HEARING DATE ON DEFENDANTS' 

MOTION TO EXCLUDE UNTIMELY ADDITIONS: CASE NO.: CASE NO. 5:17-CV-00287-BLF

Pursuant to Federal Rule of Civil Procedure 26(e)(1) (the “First Supplemental Disclosures”). 

(Seror Decl. at ¶ 6, Exh. B.) The First Supplemental Disclosures added four additional likely 

witnesses, but did not alter Plaintiffs’ damages theories. (Seror Decl. at ¶ 6, Exh. B.) These 

individuals were already known to Defendants, and Defendants had in fact deposed two of them 

regarding Plaintiffs’ damages claims. (Seror Decl. at ¶ 7.) Defendants also served document and 

testimony subpoenas on two of the other witnesses and/or their businesses. (Seror Decl. at ¶ 7.) 

On October 11, 2019, almost two weeks after the close of discovery, Plaintiffs served the 

Amended Supplemental Disclosures. (Seror Decl. at ¶ 8, Exh. C.) The Amended Supplemental 

Disclosures disclosed eight additional likely witnesses and a new damages theory for “corrective 

advertising,” based on costs Plaintiffs have allegedly been incurring since 2017. (Seror Decl. at 

¶ 8, Exh. C.) 

Prior to service of the Amended Supplemental Disclosures, Defendants had no notice of 

the newly-disclosed witnesses or damages based on “corrective advertising.” (Seror Decl. at ¶ 9.) 

None of the individuals named for the first time on October 11, 2019 have been deposed in this 

action, and Defendants have propounded no discovery addressing the corrective advertising 

theory of damages. (Seror Decl. at ¶ 9.) 

Defendants’ counsel contacted the Court’s clerk to reserve the soonest available hearing 

date, which was January 16, 2020. (Declaration of Daniel J. Zarchy in Support of Motion for 

Administrative Relief (“Zarchy Decl.”) at ¶ 2.) Defendants filed their Motion to Exclude on 

October 25, 2019. (Dkt. 94.) Defendants’ counsel contacted Plaintiffs’ counsel to ask if 

Plaintiffs were willing to agree to an expedited hearing on the Motion to Exclude, and Plaintiffs’ 

counsel indicated that they were willing to stipulate to a hearing in three weeks, with Plaintiffs’ 

opposition to the Motion to Exclude due by Friday, November 8, 2019. (Zarchy Decl. at ¶ 3.) 

Defendants are willing to accept this arrangement if agreeable to the Court. 

III. THERE IS GOOD CAUSE TO HEAR THE MOTION TO EXCLUDE SOON SO 

THAT THE PARTIES MAY PREPARE FOR TRIAL 

This Court has the authority to alter the hearing dates of motions and generally control its 

docket. See, e.g., Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979) 

Case 5:17-cv-00287-BLF Document 95 Filed 10/29/19 Page 4 of 5
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BUCHALTER

A PROFESSIONAL C ORPORATION

L OS A NGELES

BN 38109920v1 4 

MOTION FOR ADMINISTRATIVE RELIEF TO ADVANCE THE HEARING DATE ON DEFENDANTS' 

MOTION TO EXCLUDE UNTIMELY ADDITIONS: CASE NO.: CASE NO. 5:17-CV-00287-BLF

(holding that a trial court may control its own docket); United States v. Fitch, 472 F.2d 548, 549 

n.5 (9th Cir. 1973) (“Rule 6(d), F.R.Civ.P., allows the district court discretion to shorten time.”). 

Here, good cause exists to advance the hearing date of the Motion to Exclude because the 

parties need to know what evidence and damages theories are going to be permitted in trial with 

enough time to adequately prepare. If the Court denies the Motion to Exclude and the eight 

additional witnesses and/or new damages theory are permitted, Defendants will need to engage in 

discovery to understand and vet these belated claims. This will likely take several months, which 

Defendants do not have. 

It is particularly crucial for the parties to know the outcome of the Motion to Exclude on 

an accelerated basis because Defendants are scheduled to file their Motion for Summary 

Judgment on November 4, 2019. Defendants’ motion seeks summary judgment of Plaintiffs’ 

entire case and would render trial unnecessary for Plaintiffs’ causes of action. However, if the 

Motion to Exclude is denied and the corrective advertising damages theory is allowed to survive, 

it would dramatically alter the parties disposition and status less than three months before trial. 

An expedient adjudication of the Motion to Exclude would benefit all parties and dramatically 

reduce the likely prejudice that Defendants would face as a result of Plaintiffs’ untimely surprise. 

IV. CONCLUSION 

Because Defendants would be severely prejudiced if the Motion to Exclude is not heard 

until January 16, 2020, Defendants respectfully request that the Court grant this unopposed 

motion and advance the hearing date of the Motion to Exclude to November 21, 2019, or as soon 

thereafter as is reasonably practical for the Court. 

DATED: October 29, 2019 BUCHALTER 

A Professional Corporation 

By: /s/ Dylan W. Wiseman 

MATTHEW L. SEROR 

DYLAN W. WISEMAN 

BRANDON M. CARR 

Attorneys for Defendants JOHN HANDLERY 

and HANDLERY HOTELS, INC. and 

Counterclaimant HANDLERY HOTELS, INC. 

Case 5:17-cv-00287-BLF Document 95 Filed 10/29/19 Page 5 of 5