Bourque v. Zoompass Holdings, Inc. et al, No. 2:2018cv00776 - Document 9 (D. Nev. 2018)
Court Description: ORDER granting 7 Stipulation Concerning Service of Process and Staying Proceedings. Signed by Magistrate Judge Carl W. Hoffman on 5/31/2018. (Copies have been distributed pursuant to the NEF - MMM)
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Bourque v. Zoompass Holdings, Inc. et al 1 Doc. 9 6 ANDREW R. MUEHLBAUER, ESQ. Nevada Bar No. 10161 SEAN P. CONNELL, ESQ. Nevada Bar No. 7311 MUEHLBAUER LAW OFFICE, LTD. 7915 West Sahara Ave., Suite 104 Las Vegas, Nevada 89117 Tel.: (702) 330-4505 Fax: (702) 825-0141 andrew@mlolegal.com sean@mlolegal.com 7 Attorneys for Plaintiff Denis Bourque 2 3 4 5 8 9 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 10 11 12 13 14 15 16 DENIS BOURQUE, Derivatively on behalf of Nominal Defendant, ZOOMPASS HOLDINGS, Case No. 2:18-cv-00776-JAD-CWH INC., STIPULATION AND [PROPOSED] Plaintiff, ORDER CONCERNING SERVICE v. OF PROCESS AND STAYING PROCEEDINGS JOHN ROBERT LEE, STEVE ROBERTS, JONATHAN TONDEUR, and EDWARD YEW, 17 Defendants, 18 and 19 20 ZOOMPASS HOLDINGS, INC. Nominal Defendant. 21 22 23 24 25 26 27 WHEREAS Plaintiff Denis Bourque (“Plaintiff”) filed his Complaint on March 23, 2018, in the Eighth Judicial District Court for Clark County of the State of Nevada, in which he alleged, among other things, breaches of fiduciary duty, unjust enrichment, and waste of corporate assets derivatively on behalf of Nominal Defendant Zoompass Holdings, Inc. (the “Nominal Defendant”) against Defendants John Robert Lee, Steve Roberts, Edward Yew, and Jonathan Tondeur (collectively, the “Individual Defendants,” and together with the Nominal Defendant, the “Defendants”); 28 1 10407841v.1 Dockets.Justia.com 1 2 WHEREAS the Individual Defendants filed a Notice of Removal to this Court on April 27, 2018; 3 WHEREAS the Individual Defendants filed an Amended Notice of Removal on May 1, 2018; 4 WHEREAS Plaintiff does not object to the Removal of the matter pursuant to the terms of this 5 Stipulation; 6 WHEREAS pending before the United States District Court for the District of New Jersey is 7 Patel v. Zoompass Holdings, Inc., 2:17-cv-03831 (the “Securities Class Action”), a putative class 8 action alleging violations of the Securities Exchange Act of 1934 and regulations promulgated 9 thereunder; 10 WHEREAS the plaintiff in the Securities Class Action filed an Amended Complaint on 11 November 20, 2017, the defendants therein filed a Motion to Dismiss the Amended Complaint on 12 January 19, 2018, an opposition thereto was filed on March 20, 2018, and a reply in support thereof 13 was filed on April 19, 2018; 14 WHEREAS pending before the United States District Court for the District of Nevada, the 15 Honorable Andrew P. Gordon presiding, is Kluge v. Lee, 2:17-cv-02578, filed on October 4, 2017 and 16 consolidated with Johnson v. Lee, 2:17-cv-2949 (the “2017 Derivative Action”), a putative derivative 17 action on behalf of Nominal Defendant alleging, among other things, breach of fiduciary duty; 18 19 WHEREAS the parties in the 2017 Derivative Action have stipulated to, and the Court has soordered, a stay of proceedings in that case; 20 WHEREAS Plaintiff’s Complaint in the above-captioned matter alleges certain misconduct 21 that is similar to the misconduct alleged in the Securities Class Action and the 2017 Derivative Action; 22 and 23 WHEREAS Plaintiff, the Individual Defendants, and the Nominal Defendant wish to promote 24 the efficient and orderly administration of justice by coordinating the above-captioned derivative 25 matter and the 2017 Derivative Action with the Securities Class Action while simultaneously litigating 26 the Securities Class Action. 27 28 2 10407841v.1 1 2 3 NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the undersigned counsel for the Plaintiff, the Individual Defendants, and the Nominal Defendant. that: (1) The undersigned counsel for the Individual Defendants hereby accept service of the 4 Complaint filed in the above-captioned matter on behalf of all Defendants, including 5 the Individual Defendants, as of the date set forth below; 6 (2) By authorizing their counsel to accept service on their behalf, the Individual Defendants 7 waive any and all objections to the absence of a summons or of service, and also waive 8 any and all objections otherwise relating to personal jurisdiction of this Court over 9 Defendants, but do not waive any other defense, objection, or ground for dismissal that 10 11 they may have otherwise raised in response to this action. (3) All activity in the above-captioned matter shall be stayed, and the Defendants shall 12 need not answer, move, or otherwise respond to Plaintiff’s Complaint, or any amended 13 complaint, during the pendency of the stay; 14 (4) Should any of the Defendants produce during the pendency of the stay any documents 15 to any plaintiffs in the Securities Class Action, to any plaintiffs in any related derivative 16 actions, or to any purported shareholders who made a books and records demand, 17 Defendants will produce to Plaintiff a copy of the same documents, subject to the 18 parties entering into a confidentiality agreement and/or protective order; 19 (5) During the pendency of the stay, Defendants shall include Plaintiff in any mediation 20 and any formal settlement talks with the plaintiffs in the Securities Class Action and 21 shall include Plaintiff in any mediation and any formal settlement talks with any 22 plaintiff in any related derivative lawsuit; 23 (6) Plaintiff may lift the stay of the above-captioned matter at any time by (i) making a 24 request to the Court, and (ii) by transmitting notice to counsel for the nominal defendant 25 via e-mail at the e-mail addresses listed below; 26 (7) 27 Defendants shall promptly notify Plaintiff of any related derivative lawsuits that any of them become aware of; 28 3 10407841v.1 1 (8) During the pendency of the stay, Plaintiff may amend the Complaint; 2 (9) The Individual Defendants and the Nominal Defendant shall answer, move, or 3 otherwise respond to Plaintiff’s Complaint, or instead the operative amended 4 complaint, if any amended complaint has been filed, within sixty (60) days after they 5 receive a request to lift the stay, except as described in Paragraph 11, infra; 6 (10) Should any other derivative case be filed in any forum subsequent to the above- 7 captioned matter that alleges and seeks relief from the same or similar alleged 8 misconduct as that alleged in the above-captioned matter, the Individual Defendants 9 and the Nominal Defendants shall either agree to, or move for, a stay of said later-filed 10 11 action; (11) Should a later-filed action such as is described in Paragraph 10, supra, not be stayed, 12 Plaintiff in the above-captioned matter may lift the stay of the above-captioned matter 13 by following the requirements of Paragraph 6, supra, but in such circumstance the 14 Individual Defendants and the Nominal Defendant shall answer, move, or otherwise 15 respond to Plaintiff’s Complaint, or instead the operative amended complaint, if any 16 amended complaint has been filed, within twenty (20) days after they receive a request 17 to lift the stay; and 18 (12) Should any other derivative case be filed in any forum that alleges and seeks relief from 19 the same or similar alleged misconduct as that alleged in the above-captioned matter, 20 the Individual Defendants and the Nominal Defendant shall never move to stay the 21 above-captioned action in deference to the later-filed action. 22 23 24 Dated: May 25, 2018 25 MCDONALD CARANO, LLP 26 By: /s/ Pat Lundvall Pat Lundvall, Esq. Nevada Bar No. 3761 4 27 28 10407841v.1 1 2300 West Sahara Avenue, Suite 1200 Las Vegas, Nevada 89102 Tel: (702) 873-4100 Lundvall@mcdonaldcarano.com 2 3 4 PATTERSON BELKNAP WEBB & TYLER LLP James V. Masella, III Jesse A. Townsend 1133 Avenue of the Americas New York, New York 10036 Tel: 212-336-2000 Fax: 212-336-2222 jmasella@pbwt.com jtownsend@pbwt.com 5 6 7 8 9 10 11 Attorneys for Defendants John Robert Lee, Steve Roberts, Edward Yew, and Jonathan Tondeur, and for Nominal Defendant Zoompass Holdings, Inc. 12 13 14 MUEHLBAUER LAW OFFICE, LTD. 15 16 By: /s/ Andrew R. Muehlbauer Andrew R. Muehlbauer, Esq. Nevada Bar No. 10161 Sean P. Connell, Esq. Nevada Bar No. 7311 7915 West Sahara Ave., Suite 104 Las Vegas, Nevada 89117 Tel.: 702-330-4505 Fax: 702-825-0141 andrew@mlolegal.com sean@mlolegal.com 17 18 19 20 21 22 23 OF COUNSEL: 24 POMERANTZ LLP Gustavo F. Bruckner Gabriel Henriquez 600 Third Avenue New York, NY 10016 (212) 661-1100 25 26 27 28 5 10407841v.1 1 Attorneys for Plaintiff Denis Bourque 2 3 4 5 6 May 31, 2018 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 10407841v.1 1 CERTIFICATE OF SERVICE 2 I certify that on the 25th day of May, 2018, I caused a true and correct copy of the foregoing 3 STIPULATION AND [PROPOSED] ORDER CONCERNING SERVICE OF PROCESS AND 4 STAYING PROCEEDINGS to be electronically serviced to counsel of record for all parties via the 5 United State District Court’s CM/ECF e-filing and service system. 6 7 __./s/ Witty Huang__________________________________ An employee of Muehlbauer Law Office, Ltd. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 10407841v.1
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