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

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.




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




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




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.




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

[email protected]

[email protected]

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]