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

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HYONGSOON KIM (SBN 257019)

kimh@akingump.com
GARRETT LLEWELLYN (SBN 267427)
gllewellyn@akingump.com
PATRICK E. MURRAY (SBN 293765)
pmurray@akingump.com
AKIN GUMP STRAUSS HAUER & FELD LLP
2029 Century Park East, Suite 2400
Los Angeles, California 90067-3010
Telephone: 310.229.1000
Facsimile: 310.229.1001
ERIC GAMBRELL (admitted pro hac vice)
egambrell@akingump.com
AKIN GUMP STRAUSS HAUER & FELD LLP
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201
Telephone: 214.969.2800
Facsimile: 214.969.4343
Attorneys for Defendant and Counter-Claimant
Aequitas Capital Management, Inc.

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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AMERICAN STUDENT FINANCIAL

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

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v.
AEQUITAS CAPITAL
MANAGEMENT, INC., an Oregon
corporation, and DOES 1-50, inclusive,
Defendants.

Case No. 12-cv-2446-CAB (JMA)

[Consolidated with Case No.
12-cv-3082-CAB (JMA)]
DEFENDANTS EX PARTE MOTION
FOR AN ORDER CONTINUING
TRIAL; MEMORANDUM OF POINTS
AND AUTHORITIES
Crtrm.:
Judge:

4C
Hon Cathy Ann Bencivengo

Trial Date: March 14, 2016

AND RELATED COUNTER-CLAIMS.

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DEFENDANTS EX PARTE MOTION FOR AN ORDER CONTINUING
TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES

12-CV-2446 CAB (JMA)

Case 3:12-cv-02446-CAB-JMA Document 252 Filed 03/03/16 Page 2 of 5

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 Courts discretion.

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

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

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

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

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example only, Defendants alternative offset defense), including as a result of Plaintiffs

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

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

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

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

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

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

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23, 2016.

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

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

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concurrently filed Declaration of Eric Gambrell, this ex parte Motion is made after

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meeting and conferring with counsel for Plaintiffs, including on February 29, 2016,

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

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

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The names, address, telephone number, and email addresses for Plaintiffs
counsel are:
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DEFENDANTS EX PARTE MOTION FOR AN ORDER CONTINUING
TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES

12-CV-2446 CAB (JMA)

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

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James C. Danaher
Email: jdanaher@gordonrees.com
Maha Sarah
Email: msarah@gordonrees.com
William M. Rathbone
Email: wrathbone@gordonrees.com
M.D. Scully
Email: mscully@gordonrees.com
Gordon & Rees LLP
101 West Broadway, Suite 2000
San Diego, California 92101
Telephone: (619) 696-6700

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This request is based upon this ex parte Motion, the attached Memorandum of

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Points and Authorities, the declaration of Eric Gambrell, all papers filed in this action,

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all matters judicially noticed or noticeable, and upon such other oral and documentary

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evidence as may be presented at the hearing of this ex parte Motion.

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Dated: March 3, 2016

AKIN GUMP STRAUSS HAUER & FELD LLP

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By

s/ Eric Gambrell
Eric Gambrell
Attorneys for Defendant and Counter-Claimant
Aequitas Capital Management, Inc.

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DEFENDANTS EX PARTE MOTION FOR AN ORDER CONTINUING
TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES

12-CV-2446 CAB (JMA)

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MEMORANDUM OF POINTS AND AUTHORITIES

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I.

INTRODUCTION
Defendant Aequitas Capital Management, Inc. (Aequitas or Defendant) hereby

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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 Courts 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

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A.

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

Good Cause Exists to Continue the Trial Date.

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

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

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

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this ex parte Motion.

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

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

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

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

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

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

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

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others, offset) to reflect the severe harm caused by Plaintiffs breach of the Consulting

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Services Agreement, in, among other things, failing to advise Defendant and otherwise

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

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

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

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being stayed just prior to trial (or during trial or in the post-trial phase). In that event,
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DEFENDANTS EX PARTE MOTION FOR AN ORDER CONTINUING
TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES

12-CV-2446 CAB (JMA)

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

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.

Defendant 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.

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III.

Good Cause Exists for Hearing This Matter on an Ex Parte Basis

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

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22, 2016 or a date convenient to the Courts calendar and to set a Case Management

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

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captioned matter in the Courts discretion.

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Dated: March 3, 2016

AKIN GUMP STRAUSS HAUER & FELD LLP

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By

s/ Eric Gambrell
Eric Gambrell
Attorneys for Defendant and Counter-Claimant
Aequitas Capital Management, Inc.

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DEFENDANTS EX PARTE MOTION FOR AN ORDER CONTINUING
TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES

12-CV-2446 CAB (JMA)