Vic Migogna - Motion For Leave To File Late Due To Technical Difficulties

141-307474-19 FILED
TARRANT COUNTY
9/3/2019 12:00 AM
CAUSE NO. 141-307474-19 THOMAS A. WILDER
DISTRICT CLERK
VICTOR MIGNOGNA, § IN THE DISTRICT COURT

Plaintiff, §
§
v. §
§ 141st JUDICIAL DISTRICT
FUNIMATION PRODUCTIONS, LLC, §
JAMIE MARCHI, MONICA RIAL, §
AND RONALD TOYE, §
Defendants § TARRANT COUNTY, TEXAS
PLAINTIFF’S MOTION FOR LEAVE TO FILE LATE RESPONSE TO

DEFENDANTS’ TCPA MOTIONS TO DISMISS DUE TO TECHNICAL ISSUES
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff Victor Mignogna requests that the Court grant him leave to file his response
to Defendants’ motions to strike roughly 30 minutes after the parties’ agreed-upon August 30,
2019 deadline. Plaintiff’s initial filing was rejected for a technical error (see Exhibit A
attached); Plaintiff’s counsel’s IT director also surmises that the initial file size of the response
(more than 35MB) might have contributed to the difficulty of the document to load into the
browser-based filing portal. As Plaintiff’s filing deadline is set only via a Rule 11 Agreement,
Plaintiff must be given a reasonable extension of time to complete the filing due to the
technical failure. See TEX. R. CIV. P. 21 (“If the missed deadline is one imposed by these rules,
the filing party must be given a reasonable extension of time to complete the filing.”).
Moreover, the delay is not due to Plaintiff’s negligence (or that of his counsel) but rather due
technical difficulties outside their control. Plaintiff’s response was accepted by the efiling
system at 12:27 AM (see Exhibit B).
WHEREFORE, Plaintiff requests that the Court accept the 12:27 AM, August 31,
2019 filing of his response to Defendants’ motions to dismiss or, alternatively, grant him leave
to file his response no later than 11:59 PM on August 31, 2019, and award him such other
PLAINTIFF’S MOTION FOR LEAVE TO FILE LATE, PAGE 1 OF 2
Copy from re:SearchTX

and further relief to which he may be entitled at law or in equity. Plaintiff prays for general
relief.
Respectfully submitted,
BEARD HARRIS BULLOCK HUGHES
By: /s/ Jim E. Bullock

Ty Beard
Texas Bar No. 00796181
Carey-Elisa Christie
Jim E. Bullock
100 Independence Place, Suite 101
Tyler, Texas 75703
(903) 509-4900 [T]
(903) 509-4908 [F]
[email protected]
[email protected]
[email protected]
Attorneys for Plaintiff
Certificate of Conference
Counsel for Defendants Rial and Toye made clear their objection to the relief sought
herein via email and did not alter their position after being advised of the technical error (see
Exhibit C). A conference was not held with counsel for Defendants Funimation or Rial on
the merits, because of the extremely late hour and the urgency to file the motion.
/s/ Jim E. Bullock

Date: August 31, 2019
Certificate of Service
The undersigned certifies that the foregoing motion was electronically filed today and
served via electronic filing manager on counsel of record.
/s/ Jim E. Bullock

Date: August 31, 2019
PLAINTIFF’S MOTION FOR LEAVE TO FILE LATE, PAGE 2 OF 2

Jim Bullock
From: [email protected]
Sent: Saturday, August 31, 2019 12:15 AM
To: Jim Bullock
Subject: Submission Failed for Envelope Number: 36452123 in Case: 141-307474-19, VICTOR MIGNOGNA
VS. FUNIMATION PRODUCTIONS, LLC,ET AL
Submission Failure
Envelope Number: 36452123
Case Number: 141-307474-19
Case Style: VICTOR MIGNOGNA VS.
FUNIMATION PRODUCTIONS, LLC,ET AL
The filing below was not successfully submitted.
Error Details
Filings in Error Answer/Response
Document(s) Causing
Plf Response to MTDs_FINAL.pdf
Error
Odyssey File & Serve could not accept the pdf file because it is
secured by security restrictions. The most common security
Error Reason(s) restrictions include password security not allowing the copying or
changing of the document. Please remove the security settings and
resubmit the filing.
Filing Details
Case Number 141-307474-19
VICTOR MIGNOGNA VS. FUNIMATION PRODUCTIONS, LLC,ET
Case Style
AL
Date/Time Submitted 8/31/2019 12:15 AM CST
Note about credit card funds: Any funds related to this filing will automatically be reversed back
onto the card used. Funds will become available based on your financial institution's policies (typically
3-10 business days).
Exhibit A
Jim Bullock
From: [email protected]
To: Jim Bullock
Subject: Filing Submitted for Case: 141-307474-19; VICTOR MIGNOGNA VS. FUNIMATION PRODUCTIONS,
LLC,ET AL; Envelope Number: 36452135
Filing Submitted
Case Number: 141-307474-19
The filing below has been submitted to the clerk's office for review. Please allow 24 - 48 hours for
clerk office processing.
Filing Details
Court Tarrant County - District Civil
Filing Type Answer/Response
Filing Description Plaintiff's Response to Defendants' TCPA Motions to Dismiss
Type of Filing EFileAndServe
Filed By Jim Bullock
Filing Attorney Jim Bullock
Fee Details
Your account is never charged until your filing is accepted. If you see any pending charges on your
account prior to acceptance, this is an authorization hold to ensure the funds are available so your
filing can be accepted without delay.
If the filing is canceled or rejected these funds will be released and will return to your account
according to your financial institution's policies (typically 3-10 business days).
This envelope is pending review and fees may change.
Case Fee Information $0.00
Answer/Response $0.00
Total:$0.00 (The envelope still has pending filings and the fees are subject to change)
Document Details
Lead Document Plf Response to MTD.pdf
Exhibit B
Lead Document Page
1188
Count
File Copy Download Document
This link is active for 30 days.
For technical assistance, contact your service provider
Need Help? Help

Visit: https://efiletexas.gov/contacts.htm
Email: [email protected]
Please do not reply to this email. It was automatically generated.

eFiling for Texas - View Envelope Details 1 of 3
Case # 141-307474-19 - VICTOR MIGNOGNA VS. FUNIMATION PRODUCTIO…
Envelope Information
Envelope Id Submitted Date Submitted User Name

36452135 8/31/2019 12:27 AM CST [email protected]
Case Information
Location Category Case Type

Tarrant County - 141st District Court Civil - Other Civil Other Civil
Case #
141-307474-19
Party Information
Party Type Party Name Lead Attorney
Plaintiff VICTOR MIGNOGNA TY BEARD
Defendant THE FUNIMATION PRODUCTIONS LLC JOHN VOLNEY
Defendant JAMIE MARCHI SAMUEL JOHNSON
Defendant MONICA RIAL CASEY ERICK
Defendant RONALD TOYE CASEY ERICK
Filings
Filing Code Client Ref # Filing Description
Answer/Response Plaintiff's Response to Defendants' TCPA Motions to Dis…
Filing Details
Filing Type Filing Code
EFileAndServe Answer/Response
Filing Description
Plaintiff's Response to Defendants' TCPA Motions to
Dismiss
Filing Status
Submitting
Lead Document
File Name Description Security Download
Plf Response to MTD.pdf 17.90 MB Plf Response to MTD.pdf Default Original File
eService Details
Status Name Firm Served Date Opened Log
Not Sent Ty Beard Beard Harris Bullock Hughes Not Opened
Not Sent Scott Smoot Lynn Pinker Cox & Hurst, LLP Not Opened
Not Sent John D Volney Lynn Pinker Cox & Hurst, LLP Not Opened
Not Sent Pam Oakley Lynn Pinker Cox Hurst Not Opened
Not Sent Christian Orozco Lynn Pinker Cox & Hurst Not Opened
Not Sent Terha Hooker Lynn Pinker Cox & Hurst, LLP Not Opened
Not Sent Rebecca Adams Lynn Pinker Cox & Hurst LLP Not Opened
Not Sent Samuel H Johnson Rosenberg & Johnson, PLLC Not Opened
Not Sent Fatimah Muhammad Not Opened

https://efile.txcourts.gov/OfsWeb/Envelope/AddOrEdit?Id=36452135&a... 8/31/2019, 12:40 AM
Not Sent Kimberley Smith Not Opened
1 2 10 items per page 1 - 10 of 19 items
Service Contacts
Serve Name Email
Party: VICTOR MIGNOGNA - Plaintiff
Ty Beard [email protected]
Party: THE FUNIMATION PRODUCTIONS LLC - Defendant
Rebecca Adams [email protected]
Terha Hooker [email protected]
Pam Oakley [email protected]
Christian Orozco [email protected]
Scott Smoot [email protected]
John D Volney [email protected]
Party: JAMIE MARCHI - Defendant
Samuel H Johnson [email protected]
Elizabeth J. Rogatski [email protected]
Party: MONICA RIAL - Defendant
Party: RONALD TOYE - Defendant
Other Service Contacts
Jim Bullock [email protected]
Carey Christie [email protected]
Casey Erick [email protected]
Sean Lemoine [email protected]
Gutierrez Lupe [email protected]
Barb Morgan [email protected]
Fatimah Muhammad [email protected]
Andrea Perez [email protected]
Kristina Ross [email protected]
Kimberley Smith [email protected]
1 10 items per page 1 - 6 of 6 items
Parties with No eService
Name Address
MONICA RIAL
RONALD TOYE

Fees
Answer/Response
Description Amount
Filing Fee $0.00
Filing Total: $0.00
Total Filing Fee $0.00

Envelope Total: $0.00
Party Responsible for Fees VICTOR MIGNOGNA Transaction Amount $0.00

Payment Account LOC Transaction Id 54430856
Filing Attorney Jim Bullock Order Id

Filer Type Attorney Transaction Response Authorized
© 2019 Tyler Technologies

Version: 2018.1.7.8190

Jim Bullock
From: Sean Lemoine <[email protected]>

To: Ty Beard
Cc: Carey Christie; Jim Bullock; Christian Orozco; Ethan Minshull; [email protected]; John Volney;
Erick, Casey; Sean Lemoine
Subject: RE: Case No. 141-307474-19 8/1/19 Motion to Strike Supplemental Filings
Mr. Beard,

You are late in violation of the Rule 11.

We will move to strike whatever you might file, if you actually file anything.

Sean Lemoine
Partner | Wick Phillips
Direct: 214.740.4053

From: Ty Beard <[email protected]>
Sent: Wednesday, August 07, 2019 12:52 PM
To: John Volney <[email protected]>
Cc: Carey Christie <[email protected]>; Jim Bullock <[email protected]>; Casey Erick
<[email protected]>; Andrea Perez <[email protected]>; Christian Orozco <[email protected]>;
Ethan Minshull <[email protected]>; [email protected]; Sean Lemoine
<[email protected]>
Subject: RE: Case No. 141‐307474‐19 8/1/19 Motion to Strike Supplemental Filings

John, I will attach to our motion the redline of the Rule 11 agreement where you specifically rejected any agreement
about setting additional hearings in the interim.

In any case, we are not objecting to the admissibility of your evidence (yet).

Rather we are arguing that adding additional evidence and briefing after the TCPA filing deadline is improper. You should
have filed a motion for leave to supplement your motion to dismiss, which would have required good cause.

I don’t think you have a vacation letter on file and given the time urgency of our motion, we have no choice but to set
the hearing as soon as possible. I am sure that you could participate by phone and we would have no problem with that.
However, if defendants agree to extend all deadlines by 7 days, we can set the hearing week after next. (That would
mean bumping the hearing to September 13, our filing deadline to September 6 and your deadline to September 9).

‐‐Ty
1
Exhibit C
Jim Bullock
From: Jim Bullock

To: Sean Lemoine; Ty Beard
Cc: Carey Christie; Christian Orozco; Ethan Minshull; [email protected]; John Volney; Erick, Casey
Subject: RE: Case No. 141-307474-19 8/1/19 Motion to Strike Supplemental Filings
We are having technical difficulties loading the document into the efiling system due to the file size. Not our fault; but
go ahead and make that argument.
Sweet dreams.

From: Sean Lemoine <[email protected]>
To: Ty Beard <[email protected]>
Cc: Carey Christie <[email protected]>; Jim Bullock <[email protected]>; Christian Orozco
<[email protected]>; Ethan Minshull <[email protected]>; [email protected]; John Volney
<[email protected]>; Erick, Casey <[email protected]>; Sean Lemoine <[email protected]>

Mr. Beard,

You are late in violation of the Rule 11.

We will move to strike whatever you might file, if you actually file anything.

Sean Lemoine
Partner | Wick Phillips
Direct: 214.740.4053

From: Ty Beard <[email protected]>
Sent: Wednesday, August 07, 2019 12:52 PM
To: John Volney <[email protected]>
Cc: Carey Christie <[email protected]>; Jim Bullock <[email protected]>; Casey Erick
<[email protected]>; Andrea Perez <[email protected]>; Christian Orozco <[email protected]>;
Ethan Minshull <[email protected]>; [email protected]; Sean Lemoine
<[email protected]>

John, I will attach to our motion the redline of the Rule 11 agreement where you specifically rejected any agreement
about setting additional hearings in the interim.

Jim Bullock
From: Jim Bullock

To: Sean Lemoine; Ty Beard; Carey Christie; Christian Orozco; Ethan Minshull; [email protected];
John Volney; Erick, Casey
Subject: FW: Submission Failed for Envelope Number: 36452123 in Case: 141-307474-19, VICTOR
MIGNOGNA VS. FUNIMATION PRODUCTIONS, LLC,ET AL
FYI.

From: No‐[email protected] <No‐[email protected]>
To: Jim Bullock <[email protected]>
Subject: Submission Failed for Envelope Number: 36452123 in Case: 141‐307474‐19, VICTOR MIGNOGNA VS.

Submission Failure
Case Number: 141-307474-19
The filing below was not successfully submitted.
Error Details
Filings in Error Answer/Response
Document(s) Causing
Plf Response to MTDs_FINAL.pdf
Error
Odyssey File & Serve could not accept the pdf file because it is
secured by security restrictions. The most common security
Error Reason(s) restrictions include password security not allowing the copying or
changing of the document. Please remove the security settings and
resubmit the filing.
Filing Details
Case Number 141-307474-19
VICTOR MIGNOGNA VS. FUNIMATION PRODUCTIONS, LLC,ET
Case Style
AL

Note about credit card funds: Any funds related to this filing will automatically be reversed back
onto the card used. Funds will become available based on your financial institution's policies (typically
3-10 business days).

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141-307474-19 FILED

VICTOR MIGNOGNA, § IN THE DISTRICT COURT

PLAINTIFF’S MOTION FOR LEAVE TO FILE LATE RESPONSE TO

TO THE HONORABLE JUDGE OF SAID COURT:

system at 12:27 AM (see Exhibit B).

PLAINTIFF’S MOTION FOR LEAVE TO FILE LATE, PAGE 1 OF 2

Copy from re:SearchTX

By: /s/ Jim E. Bullock

/s/ Jim E. Bullock

/s/ Jim E. Bullock

PLAINTIFF’S MOTION FOR LEAVE TO FILE LATE, PAGE 2 OF 2

Copy from re:SearchTX

The filing below was not successfully submitted.

For technical assistance, contact your service provider

Need Help? Help

Please do not reply to this email. It was automatically generated.

Copy from re:SearchTX

Case # 141-307474-19 - VICTOR MIGNOGNA VS. FUNIMATION PRODUCTIO…

Envelope Id Submitted Date Submitted User Name

Location Category Case Type

Party Type Party Name Lead Attorney

Plaintiff VICTOR MIGNOGNA TY BEARD

Defendant THE FUNIMATION PRODUCTIONS LLC JOHN VOLNEY

Defendant JAMIE MARCHI SAMUEL JOHNSON

Defendant MONICA RIAL CASEY ERICK

Defendant RONALD TOYE CASEY ERICK

Filing Code Client Ref # Filing Description

Answer/Response Plaintiff's Response to Defendants' TCPA Motions to Dis…

Status Name Firm Served Date Opened Log

Not Sent Ty Beard Beard Harris Bullock Hughes Not Opened

Not Sent Fatimah Muhammad Not Opened

Copy from re:SearchTX

Not Sent Kimberley Smith Not Opened

1 2 10 items per page 1 - 10 of 19 items

Serve Name Email

Party: VICTOR MIGNOGNA - Plaintiff

Party: THE FUNIMATION PRODUCTIONS LLC - Defendant

Rebecca Adams [email protected]

Terha Hooker [email protected]

Pam Oakley [email protected]

Christian Orozco [email protected]

Scott Smoot [email protected]

John D Volney [email protected]

Party: JAMIE MARCHI - Defendant

Samuel H Johnson [email protected]

Elizabeth J. Rogatski [email protected]

Party: MONICA RIAL - Defendant

Party: RONALD TOYE - Defendant

Other Service Contacts

Jim Bullock [email protected]

Carey Christie [email protected]

Casey Erick [email protected]

Sean Lemoine [email protected]

Gutierrez Lupe [email protected]

Barb Morgan [email protected]

Fatimah Muhammad [email protected]

Andrea Perez [email protected]

Kristina Ross [email protected]

Kimberley Smith [email protected]