Gary Hodge and Robert Hart III v. Stephen Kraft Ind. and as Member on Behalf of Grupo Habanero LLC ( 2015 )

R:\13598.000 l \pleadings\mtns&ords\mtn exped disc.docx
CAUSE NO. 2014-CI-18038
STEPHEN KRAFT INDIVIDUALLY AND § IN THE DISTRICT COURT OF
AS A MEMBER ON BEHALF OF §
GRUPO HABANERO, LLC §
Plaintiffs §
§
vs. § 225 1h JUDICIAL DISTRICT
§
GARY HODGE AND ROBERT HART III §
Defendants § BEXAR COUNTY, TEXAS
PLAINTIFFS' MOTION FOR EXPEDITED DISCOVERY
NOW COMES STEPHEN KRAFT, Individually and as a member on behalf of GRUPO
HABANERO, LLC ("Plaintiffs") and files this their Motion for Expedited Discovery and would
show unto the court as follows:
I.
Plaintiffs have filed suit against the Defendants GARY HODGE and ROBERT HART III
for breach of the employment contract of Stephen Kraft and breach of their fiduciary duties to
Grupo Habanera LLC in taking actions to freeze out a minority member by oppressive conduct,
including refusing Plaintiff Stephen Kraft access to the financial documents of the company, to
which he is entitled by law.
II.
Defendants have recently filed a Motion to Abate and Compel Arbitration in this case based
upon section 3 .4( e) of the employment agreement with Plaintiff Stephen Kraft. See "Exhibit A" to
Plaintiffs' Original Petition. Forgetting for the moment that the arbitration clause is very narrow,
and Plaintiffs' claims for breach of contract and breach of fiduciary duty are well outside its scope,
its' application is entirely dependent on a set of circumstances that never occurred.
In order to be effective, Defendants must first have properly exercised the repurchase
option by providing notice and closing the sale within thhiy (30) days of the termination ofPlaintiff
Stephen Kraft's employment. Notice could only have been given by serving the exercise of the
option in writing either personally to Plaintiff Stephen Kraft or by sending the notice U.S. cetiified
mail return receipt requested to Plaintiff Stephen Kraft's correct address, neither of which
occmTed. See "Exhibit A" to Plaintiffs' Original Petition section 6.1. As Defendants are claiming
that they did properly serve notice, Plaintiffs need to conduct discovery on this crucial issue prior
to any evidentiary hearing on the Defendants' Motion to Compel Arbitration, including written
discovery and taking the depositions of the Defendants. As Defendants have indicated that they
intend to set their Motion to Compel Arbitration before any discovery has been conducted,
Plaintiffs would ask that the court modify the discovery rules under TEX. R. OF Crv. PRo. 191, to
require that Defendants answer Plaintiffs' discovery requests attached hereto as "Exhibit A" within
14 days and at least three days prior to any evidentiary hearing on Defendants' Motion To Compel
Arbitration. In the alternative, Plaintiffs request that the Motion to Compel Arbitration not be set
until Plaintiffs' discovery has been answered in the normal course of time and Plaintiffs and
Defendants have agreed upon a setting date.
III.
WHEREFORE PREMISES CONSIDERED Plaintiffs STEPHEN KRAFT, Individually
and as a member on behalf of GRUPO HABANERO, LLC pray that this comi grant their motion
for expedited discovery and require that Defendants answer Plaintiffs' discovery requests attached
hereto as "Exhibit A" within 14 days of the Comi's order and at least ten days prior to any
evidentiary hearing on Defendants' Motion to Compel Arbitration. In the alternative Plaintiffs pray
that Defendants' Motion to Compel Arbitration not be set until Plaintiffs' discovery has been
answered in the normal course. of time and Plaintiffs and Defendants have agreed upon a setting
date and for such other further relief to which Plaintiffs may show themselves justly entitled.
Respectfully submitted,
EsPEY & AssociATEs, PC
13750 San Pedro Avenue, Suite 730
San Antonio, Texas 78232
Telephone: (210) 404-0333
Telecopier: (210) 4IT~-0336
/ c'__.,.~
S~/
By: ---------------------------------
RICHARD W. ESPEY
State Bar No. 06667580
respey(a)lawespey. com
MATTHEW B. SOLIDAY
State Bar No. 24079367
msoliday(W,lawespey.com
ATTORNEYS FOR PLAINTIFFS, STEPHEN KRAFT,
lNDIVIDUALL Y AND AS A MEMBER ON BEHALF OF GRUPO
HABANERO, LLC
CERTIFICATE OF SERVICE
I hereby certify that a true and conect copy of the foregoing document was served in
compliance with Rules 21 and 21a ofthe Texas Rules of Civil Procedure on December 8, 2014, on
the following counsel of record:
Roderick J. 'Rod' Regan
Branscomb I PC
711 Navarro, Suite 500
San Antonio TX 78401-0036
210.598.5405 Facsimile
Attorneys for Defendants
RICHARD W. ESPEY
MATTHEW B. SOLIDAY