Motion for scheduling conference bio trackthc
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Transcript of Motion for scheduling conference bio trackthc
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRICUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
BARRY GAINSBURG, PA, a Florida
Corporation,
Plaintiff, CASE NO.: CACE15-018959
v.
BIO-TECH MEDICAL SOFTWARE, INC.,
d/b/a BIOTRACKTHC, a Florida Corporation
and STEVEN SIEGEL, individually
Defendants.
_______________________________________/
BIO-TECH MEDICAL SOFTWARE, INC.,
d/b/a BIOTRACKTHC, a Florida Corporation
and STEVEN SIEGEL, individually,
Counter-Plaintiffs
v.
BARRY GAINSBURG, PA, a Florida
Corporation, BARRY R. GAINSBURG, P.A.,
THE LAW FIRM OF BARRY R.
GAINSBURG, P.A, LAW OFFICES OF
BARRY R. GAINSBURG, ESQ., Unregistered
Entities, and BARRY R. GAINSBURG, ESQ.,
individually.
Counter-Defendants.
_______________________________________/
DEFENDANTS’ MOTION FOR CASE MANAGEMENT CONFERENCE AND/OR
SCHEDULING CONFERENCE
COMES NOW, Defendants, BIO-TECH MEDICAL SOFTWARE, INC., d/b/a
BIOTRACKTHC (“Bio-Tech”), and STEVEN SIEGEL (“Dr. Siegel”) (collectively referred to
hereinafter as “Defendants”), by and through undersigned counsel and in accordance with the
applicable Florida Rules of Civil Procedure, and hereby move this Honorable Court for a case
Filing # 52658997 E-Filed 02/17/2017 02:28:33 PM
Bio-Tech Medical Software, Inc., d/b/a BioTrackTHC, et. al. adv. Gainsburg, PA
Case No.: CACE15-018959
Defendants’ Motion for CMC/Scheduling Conference
Page 2
management conference and/or order requiring a scheduling conference, and as grounds in support
thereof states as follows:
1. The above-captioned matter is an action originally brought by Gainsburg against his former
clients/employers, Bio-Tech and Dr. Siegel. In the above-captioned matter, Plaintiff seeks
stock allegedly owed for legal services and alleged payment for work performed; Bio-Tech
has filed a counter-claim.
2. As a point of information, at this time there are at least four (4) current cases1 involving
Gainsburg (or his law firm) and one, or more, of the Defendants in this case and/or their
counsel. Specifically, the cases are as follows:
a. Barry R. Gainsburg, et al. v. Bio-Tech Medical Software, Inc. d/b/a BioTrackTHC,
et al. (15-018959);
b. Barry Gainsburg, PA, et al. v. David I. Shiner, Esq., et al (16-000487);
c. Barry R. Gainsburg v. Bio-Tech, et al. (16-021133); and
d. Barry R. Gainsburg, et al. v. Bio-Tech, et al. (16-021239).
3. On February 9, 2017, the parties attended a hearing on Gainsburg’s Motion for Protective
Order. During the hearing, the Court indicated that the parties had to submit proposed
orders that required the parties to communicate with each other within a certain period of
time regarding the scheduling of hearings.
4. On or about February 10, 2017, the parties submitted separate proposed orders to the Court
in both the above referenced case and Case No. 16-021239, which Judge Bowman also
presides over. Both orders submitted by both parties included a requirement that the parties
would respond to hearing scheduling requests within two business days of the request, not
1 At one point there were five (5) total cases involving one or more of the parties and/or their counsel; to wit: Bio-
Tech Medical Software, Inc. d/b/a BioTrackTHC v. Barry R. Gainsburg, et al. (16-018326). As a point of information,
Bio-Tech filed this case to, among other things, enjoin Holzworth (a former Bio-Tech employee/current shareholder)
from transferring stock to Gainsburg. Shortly after filing suit, Holzworth withdrew his “intent to transfer” to
Gainsburg. Subsequently, Bio-Tech voluntarily dismissed this action without prejudice.
Bio-Tech Medical Software, Inc., d/b/a BioTrackTHC, et. al. adv. Gainsburg, PA
Case No.: CACE15-018959
Defendants’ Motion for CMC/Scheduling Conference
Page 3
including the date of the request.
5. Thus, in a good faith effort to schedule between 15 and 25 outstanding motions in the above
referenced case and Case No. 16-021239 with Gainsburg, the undersigned emailed
Gainsburg and provided multiple available dates for both UMC and Special Set matters.
The undersigned also provided Gainsburg with a list of Defendants’ outstanding motions.
On Saturday, February 11, 2017, Gainsburg then provided dates and his proposed times for
his motions to be heard.
6. However, without agreeing to an order of motions being heard or number of motions being
heard each day, at 7:07 AM on Tuesday, February 14, 2017, Gainsburg began setting
hearings for UMC during each of our proposed available dates. Gainsburg set motions for
UMC, even with other judges in cases we had not discussed dates of availability for. Over
the course of the day Gainsburg entered into a course of scheduling motions without our
coordinated agreement, canceling motions, and scheduling other motions – again without
our coordinated agreement.
7. Then, at 1:15 PM on Tuesday, February 14, 2017, Gainsburg emailed the undersigned with
proposed dates for special set hearings, including a list of motions for both parties. Before
the undersigned had the opportunity to respond, at 1:21 PM – six minutes later – Gainsburg
began scheduling special set motions for both parties, without coordinating the order of
motions, without coordinating the number of motions, and without regard to how much
time each motion would take to argue.
8. In fact, Gainsburg even set motions in different cases for the same fifteen minute special
set time period. For example, Gainsburg set on April 10, 2017, at 10:30 AM, in a fifteen
minute time slot, his Motion to Dismiss Counterclaims in Case No. 15-018959 and
Bio-Tech Medical Software, Inc., d/b/a BioTrackTHC, et. al. adv. Gainsburg, PA
Case No.: CACE15-018959
Defendants’ Motion for CMC/Scheduling Conference
Page 4
Defendants’ Motion to Dismiss Complaint in Case No. 16-021239, also without our prior
approval. Moreover, the undersigned does not believe both motions can even be heard
within this fifteen minute time period.
9. Gainsburg also set for March 8, 2017, what amounts to either three or four UMC motions,
a few of which are to be heard in front of Judge Levenson at the new courthouse and a few
of which are to be heard in front of Judge Bowman at the old courthouse. This is on top of
the two motions Gainsburg also set the same day at 2:15 PM on a special set time in front
of Judge Bowman.
10. Counsel for Defendants and Gainsburg exchanged email communications on the afternoon
of February 14, 2017, wherein counsel for the Defendants informed Gainsburg that, for
example, it did not agree to multiple motions being set on the same day in different
courthouses, two motions in one day was reasonable, it was unreasonable to schedule
motions both in the morning and afternoon in the same day, and requesting alternate dates
from Gainsburg. Gainsburg responded that if the undersigned did not like what he did, the
undersigned could file a motion for protective order. See Exhibit “A.”
11. Counsel for the Defendants then reiterated the request for the ceasing of unilaterally set
hearings, informed Gainsburg that he did not coordinate the order or number of motions,
and requested Gainsburg to provide alternate dates for certain motions. However,
Gainsburg responded:
I think you should quit the nonsense and put on your big boy pants. If you want
to file a protective order than do so. I don’t think the Judge will appreciate. In
fact, if you sign a stipuylkation (sic) I can make this point of contention
disappear.
Plus with respect to scheduling I responded to Ms. Hanna – Happy Valentines
Day Lady Receptionist – within a half hour. So please stop playing scheduling
Bio-Tech Medical Software, Inc., d/b/a BioTrackTHC, et. al. adv. Gainsburg, PA
Case No.: CACE15-018959
Defendants’ Motion for CMC/Scheduling Conference
Page 5
games.
You also did not provide times for hearings as requested, nor potential
deposition dates as requested. Start acting like a professional in scheduling
matters.
Jah Wisdom and Guidance
WHITE LION
(Emphasis added).
12. Counsel for the Defendants then responded that Gainsburg’s scheduling was unreasonable
and counter-productive, but Gainsburg responded that “I will set my hearings and you can
cross notice as you wish as long as first in time filed is heard first. Otherwise I will object.
And file a motion.” See Exhibit “A.”
13. Put simply, Gainsburg’s actions are an abuse of the scheduling system. Gainsburg is not
coordinating with the Defendants in the scheduling of matters or the order of scheduling
and is unilaterally scheduling Defendants’ motions, is scheduling an unreasonable amount
of motions per day, is making abusive comments to opposing counsel, and is setting
multiple motions for time periods where both motions could not possibly be heard. Based
on the sheer number of motions to be heard, and the obvious difficulty in scheduling
between the parties, the undersigned submits that the parties should coordinate dates for
the current outstanding motions at the Court and in person.
14. Thus, the undersigned respectfully requests that the Court enter an order requiring counsel
for both parties to attend Court so that they may coordinate the times for each party’s
motions to be heard, in order to effectively and efficiently schedule matters for both sides
in a reasonable manner, with a reasonable and realistic number of motions heard each
available day, on an alternating basis.
Bio-Tech Medical Software, Inc., d/b/a BioTrackTHC, et. al. adv. Gainsburg, PA
Case No.: CACE15-018959
Defendants’ Motion for CMC/Scheduling Conference
Page 6
WHEREFORE, Defendants respectfully request that this Honorable Court hold a Case
Management Conference to address the issues detailed herein, and require the parties to appear at
Court to schedule all current outstanding motions in the cases before Judge Bowman, irrespective
of what Gainsburg has already scheduled, and for any further relief this Court deems just and
proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via E-mail on this 17th day of February, 2017, to the following:
Law Offices of Barry Gainsburg, P.A.
Attn: Barry R. Gainsburg, Esq.
607 Sea Turtle Way
Plantation, Florida 33324
Respectfully submitted,
SHINER LAW GROUP, P.A.
Attorneys for Defendants
95 South Federal Highway, Suite 200
Boca Raton, Florida 33432
Telephone: 561.777.7700
Facsimile: 561.368.3364
Primary Email: [email protected]
By: /s/ David I. Shiner
DAVID I. SHINER
Florida Bar Number: 572721 Secondary Email: [email protected]