Case 2:11-cv-01426-GMS Document 115 Filed 08/31/12 Page 1 of 4

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

David S. Gingras, #021097 Gingras Law Office, PLLC 3941 E. Chandler Blvd., #106-243 Phoenix, AZ 85048 Tel.: (480) 668-3623 Fax: (480) 248-3196 David@GingrasLaw.com Attorney for Plaintiff/Counterdefendant Xcentric Ventures, LLC

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

XCENTRIC VENTURES, LLC, an Arizona limited liability company, Plaintiff, v. LISA JEAN BORODKIN et al., Defendants. RAYMOND MOBREZ, Counterclaimant, v. XCENTRIC VENTURES, LLC and EDWARD MAGEDSON, Counterdefendants.

Case No.: 11-CV-1426-GMS MOTION TO MODIFY CASE MANAGEMNT ORDER

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Plaintiff XCENTRIC VENTURES, LLC (Plaintiff or Xcentric) respectfully moves the Court for an order modifying the Case Management Order (CMO) entered in this matter on May 23, 2012 (Doc. #85). There are several reasons for this request. First and foremost, many months after the current CMO was entered, a Counterclaim was filed on August 15, 2012 (Doc. #109) by Defendant RAYMOND

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

MOBREZ (Mr. Mobrez) against Xcentric and its principal, ED MAGEDSON (Mr. Magedson). At the time the current CMO was entered, Mr. Magedson was not a party to this action and therefore did not participate in any of the pretrial deadlines, many of which have long since passed (i.e., the current CMO required all parties to exchange their initial Rule 26(a) disclosures by June 1, 2012).1 Second, when the parties initially met and conferred in March 2012 regarding the Case Management Report which preceded the CMO, the Court had only recently denied Ms. Borodkins first Motion to Dismiss. As such, when choosing the dates and deadlines for the Case Management Report, Xcentrics expectation was that Ms. Borodkin would be filing an Answer shortly and that discovery would then commence, or that perhaps she would bring one additional motion challenging the allegations of Xcentrics Complaint. Indeed, in her discussion of the anticipated motions section of the Case Management Report, Ms. Borodkin explained her intentions as follows: Ms. Borodkin intends to file a Motion to Dismiss for Failure to State a Claim under Rule 12(b)(6) or, in the Alternative, Motion for Judgment on the Pleadings under Rule 12(c), by June 1, 2012 or shortly afterwards. Doc. 83 at 5:1719. Instead, after this Court denied Ms. Borodkins then-pending Second Motion to Strike on July 17, 2012 (Doc. #97), Ms. Borodkin filed another Motion to Dismiss on July 31, 2012 which raised essentially the same arguments as the Second Motion to Strike. Ms. Borodkin also delayed the disposition of her fifth pre-Answer motion by requesting an extension of time for her reply brief, and then waiting until moments before midnight on the final day to file her reply. By filing so many pre-Answer motions, Ms. Borodkin has succeeded in delaying the filing of her Answer by more than a full year. Indeed, this action was filed on July 18, 2011, and now more than thirteen months later, Ms. Borodkin has still not filed an Answer which, of course, is essential in order for Xcentric to determine which facts she
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Xcentric and Ms. Borodkin have exchanged their Rule 26 disclosures, but Mr. Mobrez and Ms. Llaneras have not made any disclosures. 2

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

disputes and what affirmative defenses (if any) she intends to assert. Because Ms. Borodkin has not yet filed an Answer, Xcentric cannot meaningfully pursue discovery from her even though the existing Case Management Order provides for a fact discovery cutoff in less than four (4) months; i.e., December 14, 2012. Third and finally, the existing CMO requires the parties to complete their good faith settlement discussions by September 14, 2012. Obviously, given the unresolved

status of so many aspects of this case, and with Mr. Mobrez having asserted a Counterclaim less than three weeks ago to which Xcentric has not yet responded, it is essentially impossible for the parties to have any meaningful settlement talks at this point. For these reasons, the dates and deadlines set forth in the current CMO are no longer practical and should be extended to ensure that all parties are allowed sufficient time to raise whatever dispositive arguments they may have, and to perform discovery in a normal period of time. Unless and until the parties have received rulings on certain potentially dispositive points (including Ms. Borodkins still-pending Motion to Dismiss as well as Xcentrics forthcoming challenge to Mr. Mobrezs Counterclaim), it will be virtually impossible to engage in meaningful settlement discussions. As such, Xcentric respectfully requests that all pending dates in the current Case Management Order be extended by 60 days.

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Respectfully submitted: August 31, 2012. GINGRAS LAW OFFICE, PLLC /S/ David S. Gingras David S. Gingras Attorney for Xcentric Ventures, LLC

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GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, ARIZONA 85048

CERTIFICATE OF SERVICE

I hereby certify that on August 31, 2012 I electronically transmitted the attached document to the Clerks Office using the CM/ECF System for filing, and for transmittal of a Notice of Electronic Filing to the following: John S. Craiger, Esq. David E. Funkhouser III, Esq. Krystal M. Aspey, Esq. Quarles & Brady LLP One Renaissance Square Two North Central Avenue Phoenix, Arizona 85004-2391 Attorney for Defendant Lisa J. Borodkin Raymond Mobrez Iliana Llaneras PO BOX 3663 Santa Monica, CA 90408 Defendants Pro Se And a courtesy copy of the foregoing delivered to: HONORABLE G. MURRAY SNOW United States District Court Sandra Day OConnor U.S. Courthouse, Suite 622 401 West Washington Street, SPC 80 Phoenix, AZ 85003-215

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/s/David S. Gingras