Court filing
Memorandum in Support regarding 62 MOTION to Amend/Correct 57 Scheduling Order filed by… — Blueacorn Beringer (Dkt. 63)
No. 5:21-cv-00251-BO · Doc. 63 · Docket on CourtListener
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Civil Action No. 5:21-CV-251-BO
BERINGER COMMERCE, INC. d/b/a
BLUE ACORN iCi,
Plaintiff,
v. MEMORANDUM OF LAW IN SUPPORT
OF PLAINTIFF’S MOTION TO AMEND
FIN CAP, INC. d/b/a “BLUEACORN.CO,” SCHEDULING ORDER
BLUE ACORN PPP, LLC, and BLUE OAK
FOREST, LLC,
Defendants.
Plaintiff BERINGER COMMERCE, INC. d/b/a BLUE ACORN iCi, (“Blue Acorn iCi”)
by and through undersigned counsel, and pursuant to Rules 16(b)(4) and 26(f) of the Federal Rules
of Civil Procedure and Local Civil Rule 26.1(e)(2), hereby submits this Memorandum of Law in
Support of its unopposed Motion to Amend the Scheduling Order [DE-57].
NATURE OF CASE AND RELEVANT FACTUAL BACKGROUND
This trademark and copyright infringement lawsuit was originally filed on June 10, 2021.
After this Court heard a series of motions related to preliminary injunctive relief, and entered an
order denying the requested preliminary injunction, the parties engaged in good faith settlement
discussions, seeking to resolve this matter prior to engaging in formal discovery and discussing
the possibility of early mediation. Specifically, throughout the late summer and fall of 2021, the
parties attempted to resolve this case through negotiation of a co-existence agreement, which
would allow Defendants to operate the “Blue Acorn” brand and logo until the termination of the
PPP loan forgiveness program under specified terms and conditions. The parties engaged in
Case 5:21-cv-00251-BO Document 63 Filed 01/06/22 Page 1 of 5
negotiations in the late summer and fall of 2021 until they broke down in late November 2021.
Specifically, in early December 2021, Counsel for Defendants indicated that Defendants were not
interested in continuing with negotiations until it received responses to discovery.
Each of the parties has served a set of written discovery to the other party, with responses
currenting pending. The parties need additional time following the exchange of written discovery
and documents to take depositions, complete all fact and expert discovery, and re-engage in
potential settlement discussions.
Additionally, several significant staffing changes have occurred and require a change in
counsel for Plaintiff.
First, effective January 1, 2021, Forrest Firm, P.C. merged with Michael Best & Friedrich,
LLP (“Michael Best”), resulting in several significant key staffing changes. Co-lead counsel, Beth
A. Stanfield, as well as Laura K. Greene have joined Michael Best’s Labor and Employment
Practice Group and will no longer be operating a commercial litigation practice.
Second, Co-lead Counsel, Thomas Babel, accepted a position with an outside firm Davis,
Hartman & Wright, PLLC and separated from Forrest Firm, PC a few weeks before the above-
referenced merger occurred. Plaintiff elected to retain representation with Michael Best, resulting
in Mr. Babel’s need to withdraw from this matter.
Since these events occurred, Ms. Stanfield has engaged in significant communications with
Michael Best’s commercial litigation team to ensure that the staffing transition is as seamless as
possible. However, due to the breakdown in early resolution efforts and the complete change in
counsel, the undersigned filed the instant Motion to Amend the Scheduling Order to allow the
parties additional time in order to meaningfully participate in the discovery process. Counsel for
Defendants has been consulted and agrees to the requested extension of time.
Case 5:21-cv-00251-BO Document 63 Filed 01/06/22 Page 2 of 5
ARGUMENT
Federal Rule of Civil Procedure 16(b)(4) provides that “[a] court[’s] schedul[ing order]
may only be modified for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see
also Velasquez v. Salsas & Beer Rest., Inc., No. 5:15-CV-146-D, 2016 WL 3339488, at *2
(E.D.N.C. June 13, 2016) (“In order to amend a scheduling order, a party must first establish
‘good cause’ under Rule 16.”) (citation omitted).
“Rule 16’s ‘good cause’ focuses primarily on ‘the diligence of the moving party.’” Id.
(citing Montgomery v. Anne Arundel Cty., 182 Fed. App’x. 156, 162 (4th Cir. 2006) (per curiam)
(unpublished)). “Establishing good cause requires the moving party to show that the deadlines
could not reasonably have been met despite the party’s diligence.” Velasquez, 2016 WL 3339488
at *2 (citing Cook v. Howard, 484 F. App’x 805, 815 (4th Cir. 2012); United States v. Godwin,
247 F.R.D. 503, 506 (E.D.N.C. 2007)). “In considering diligence, the court looks to whether the
‘evidence supporting the proposed amendment would not have been discovered . . . until after the
amendment deadline had passed.’” Gilbert v. Deutsche Bank Tr. Co. Americas for Residential
Accredit Loans, Inc., No. 4:09-CV-181-D, 2016 WL 7378985, at *1 (E.D.N.C. May 25, 2016)
(citing United States v. Godwin, 247 F.R.D. 503, 506 (E.D.N.C. 2007)) (quotation omitted).
In this action, good cause to modify the Court’s Scheduling Order exists because the events
giving rise to the modification request – the breakdown in early resolution efforts and a change in
lead counsel for Plaintiff – transpired recently. The undersigned acted diligently to bring the
request for additional time to the Court’s attention prior to the passing of any deadlines for which
extension is sought. Additionally, Counsel for Defendants consents to the requested extension of
time. Accordingly, good cause to modify the Scheduling Order has been shown and this Court
should grant Plaintiff’s Motion to Amend the Scheduling Order.
Case 5:21-cv-00251-BO Document 63 Filed 01/06/22 Page 3 of 5
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that this Court grant its Motion to
Amend the Scheduling Order pursuant to Rules 16(b)(4) and 26(f) of the Federal Rules of Civil
Procedure.
RESPECTFULLY SUBMITTED, this the 6th day of January, 2022.
/s/ Beth A. Stanfield
Beth A. Stanfield (N.C. State Bar No. 36296)
Laura K. Greene (N.C. State Bar No. 47771)
FORREST FIRM, P.C.
105 Grace Street, Suite 101
Wilmington, NC 28401
T/F: (336) 275 - 6344
Beth.stanfield@forrestfirm.com
katie.greene@forrestfirm.com
Attorneys for Plaintiff
Case 5:21-cv-00251-BO Document 63 Filed 01/06/22 Page 4 of 5
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing MEMORANDUM OF LAW IN
SUPPORT OF PLAINTIFF’S MOTION TO AMEND SCHEDULING ORDER with the
Clerk for the United States District Court, Eastern District of North Carolina, using the electronic
filing system of the Court. The electronic case filing system sent a “Notice of Electronic Filing”
to all attorneys of record who have consented to accept service by electronic means.
This the 6th day of January, 2022.
/s/ Beth A. Stanfield
Beth A Stanfield
Laura K. Greene
Attorneys for Plaintiff
Case 5:21-cv-00251-BO Document 63 Filed 01/06/22 Page 5 of 5
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