Case 0:15-cv-62334-RLR Document 48-1 Entered on FLSD Docket 09/26/2016 Page 1 of 7

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Case No.: 15-cv-62334-ROSENBERG-BRANNON

TAURIGA SCIENCES, INC.,

A Florida Corporation,
Plaintiff,
v.
COWAN, GUNTESKI & CO., P.A.,
A Foreign Corporation; DONALD
COWAN, an Individual; and WILLIAM
MYLER, an Individual,
Defendants.
______________________________________/

AFFIDAVIT OF RONALD S. HERZOG IN SUPPORT

OF MOTION TO RESCHEDULE TRIAL TERM

I, Ronald S. Herzog, declare under penalty of perjury as follows:

1.

I am a shareholder of LeClairRyan, A Professional Corporation (LeClairRyan).

I am a resident attorney in LeClairRyans New York office located at 885 Third Avenue,
Sixteenth Floor, New York, New York 10022 and have been admitted to this Court pro hac vice
for this matter. I make this Affidavit in support of the Motion to Reschedule Trial Term (the
Motion) filed contemporaneously herewith. I have personal knowledge of the facts stated
herein.
2.

LeClairRyan was retained to represent Cowan, Gunteski & Co., P.A., Donald

Cowan and William Meyler (collectively, Defendants) in connection with the claims of
Tauriga Sciences, Inc., including those asserted in the litigation filed in the United States District

19228245.1

Case 0:15-cv-62334-RLR Document 48-1 Entered on FLSD Docket 09/26/2016 Page 2 of 7

Court for the Southern District of Florida in Case No. 15-cv-62334 (the Case). The Case was
assigned to Judge Rosenberg and Magistrate Judge Brannon.
3.

Tauriga Sciences, Inc. (Plaintiff) commenced this action on November 4, 2015

by filing a summons and complaint. Plaintiffs sole allegations of personal jurisdiction and
venue asserted against the Defendants, all of whom are citizens of New Jersey were that each
Defendant knew that Tauriga was a Florida corporation, and, thus, would subject itself to venue
[sic] in Florida in the event of controversy or litigation. (complaint, at paragraphs 3-5)
4.

Plaintiff failed to engage in mediation prior to filing the complaint as was

required by the terms of the engagement agreement between Plaintiff and Defendant Cowan,
Gunteski, even though I brought this requirement to counsels attention prior to the filing of the
suit.
5.

In view of Plaintiffs contractual mediation obligation Plaintiff moved to stay the

Case on December 29, 2015 to permit the parties to conduct the required mediation.
6.

On December 1, 2015, the Court set a November 7, 2016 trial term.

7.

Plaintiff and Defendants mediated the Case in New York City on February 3,

2016. At the conclusion of the February 3rd mediation the mediator requested Plaintiff produce
various documents needed in order to continue the mediation, but Plaintiff failed to do so. The
mediation was unsuccessful, and Plaintiff moved to terminate the stay on May 9, 2016.
8.

On April 13, 2016, the Defendants executed waivers of service which Plaintiffs

counsel filed on April 15, 2016. Under Rule 4(d), Defendants Rule 12(b) motions or answers
were due June 13, 2016.

2
19228245.1

Case 0:15-cv-62334-RLR Document 48-1 Entered on FLSD Docket 09/26/2016 Page 3 of 7

9.

On May 9, 2016, the Plaintiff filed a motion requesting that the trial term be re-

set. While the Plaintiffs motion stated that it was served on all parties, it was not in fact ever
served on the Defendants or their counsel.
10.

On May 10, 2016, the Court entered its Order Setting Status Conference,

Calendar Call, and Trial Date and Order of Reference to Magistrate, in which it provided that
Magistrate Judge Brannon would conduct a Pre-Trial Conference pursuant to Rule 16 of the
Federal Rules of Civil Procedure, and further provided that the trial term could be re-set by
Magistrate Judge Brannon prior to the Pre-Trial Status Conference scheduled for December 7,
2016 at 9:30 a.m. Defendants do not believe that the Pre-Trial Conference pursuant to Rule 16
of the Federal Rules of Civil Procedure was ever held. Defendants always anticipated a
reasonable opportunity to have input in the schedule for the Case, including trial, particularly in
view of the motion to dismiss Defendants were preparing given the absence of any basis of either
personal jurisdiction or venue in Florida and to identify the Defendants need for discovery,
including from various non-parties. In this May 10, 2016 Order, the Court set the current trial
term, which begins January 23, 2017.
11.

On June 13, 2016, Defendants timely filed their Motion to Dismiss Pursuant to

Fed. R. Civ. P. 12(b)(2) and/or to Dismiss or Transfer Venue Pursuant to 28 U.S.C. 1406(a)
(the Motion to Dismiss). The Motion to Dismiss, asserts, inter alia, that due to the absence of
any basis of long arm jurisdiction as well as their lack of minimum contacts with the State of
Florida, this Court does not have personal jurisdiction over Defendants. Alternatively, the
Motion to Dismiss maintains that venue in the Southern District of Florida was improper since
none of the Defendants reside in Florida and no substantial part of the acts or omissions giving

3
19228245.1

Case 0:15-cv-62334-RLR Document 48-1 Entered on FLSD Docket 09/26/2016 Page 4 of 7

rise to the claim occurred in Florida. Plaintiff was provided an extension to submit its opposition
and the Defendants thereafter filed their reply.
12.

The Motion to Dismiss is pending at this time.

13.

On July 21, 2016 the parties conducted their Rule 26(f) conference within the

time required by Local Rule 16.1(b).

14.

The parties exchanged drafts of their Rule 26(f) conference statement through

July 25, 2016. I understood Plaintiffs counsel would file the statement, however it does not
appear that it was ever filed. Plaintiffs proposed 26(f) conference statement provided that all
discovery be completed by July 22, 2017, with Plaintiffs experts reports due on May 21, 2017,
Defendants on June 30, 2017 and on August 5, 2017 cut-off for potentially dispositive motions.
Defendants believed the time for discovery requested by Plaintiff should run from the disposition
of the Motion to Dismiss, rather than from the date of the Rule 26(f) conference as Plaintiff
proposed.
15.

In numerous public filings with the Securities and Exchange Commission Tauriga

has stated that [t]he lawsuit was expected by the Company and its counsel to take up to 18
months to complete from the date it was filed (November 4, 2015).
16.

Counsel held a telephone conference on Friday, July 29, 2016 at 2:30 p.m.

During the conference counsel stated that Plaintiff consented to a transfer to the District of New
Jersey, where Defendants contended venue was proper and where the Defendants were
admittedly subject to personal jurisdiction. It was agreed at that time that Plaintiffs counsel
would draft and circulate the transfer stipulation, while Defendants counsel would draft the
proposed confidentiality agreement also discussed during that call. The parties thereafter
exchanged drafts of a stipulation transferring the Case to the District of New Jersey.

4
19228245.1

Case 0:15-cv-62334-RLR Document 48-1 Entered on FLSD Docket 09/26/2016 Page 5 of 7

17.

On August 17, 2016, Plaintiffs counsel emailed his legal assistant, copying

Defendants counsel, instructing her to file the stipulation transferring venue (containing
Defendants revisions).
18.

Shortly after this August 17, 2016 email, matters began to devolve. Plaintiffs

counsel attached additional conditions to the transfer.

19.

After August 17, 2016, the parties continued to discuss the transfer, however by

August 23, 2016, Plaintiffs counsel had gone silent on the transfer.
20.

As of August 23, 2016, Defendants had not commenced issuing discovery, in part

in reliance on the previously agreed to transfer, and in part out of concern that engaging in
discovery could be deemed a waiver of Defendants challenges to personal jurisdiction and
venue asserted in the Motion to Dismiss. Defendants, likewise, had not sought to move the trial
term as by all indications, this case, while was filed prematurely and had thereafter been stayed
on Plaintiffs application in order to conduct the required mediation, was not going to proceed in
this Court. Defendants expected that a new schedule would issue once the Case was transferred
to the District of New Jersey.
21.

On August 29, 2016, Plaintiff filed motions to compel discovery.

22.

On August 30, 2016, The Court set a telephonic hearing for September 8, 2016, to

address the motions to compel discovery and to consider scheduling matters.

23.

During the September 8, 2016 telephonic conference, Magistrate Judge Brannon

set a discovery cutoff of October 7, 2016, and a dispositive motions deadline of October 21,
2016.
24.

The discovery schedule set at the initial substantive conference, and while the

Motion to Dismiss was pending, was not established until 29 days before the close of discovery,

5
19228245.1

Case 0:15-cv-62334-RLR Document 48-1 Entered on FLSD Docket 09/26/2016 Page 6 of 7

insufficient time for Defendants to serve any written discovery or to conduct virtually any of the
third-party depositions which are necessary in this case once document discovery has occurred.
25.

Defendants anticipate that discovery will require 150 180 days to complete.

This amount of time is necessary due to the large number of third parties that must be deposed
and the need for expert discovery. Even had discovery commenced on July 21, 2016, the date
the parties held the Rule 26(f) conference, there still would have been insufficient time to
complete the discovery that is necessary for this Case.
26.

In view of Plaintiffs assertions and far-ranging damage claims, including in

discussions, press releases and public filings, Defendants will require discovery concerning:

the out of pocket damages Tauriga is claiming as a result of its delisting

from the OTCQB Exchange;

the transactions or proposed transactions Tauriga is claiming were

adversely impacted following its delisting;

the financial transactions Tauriga has been able to complete since the

delisting;

Taurigas efforts to mitigate its alleged damages;

The information Tauriga has provided to and received from third-parties

concerning the litigation, including those from who Tauriga has requested funding for the
litigation; and

the documents concerning Taurigas prior, unsuccessful business

relationships and the dates and reasons for the repeated write offs of various intangible
assets.

6
19228245.1

Case 0:15-cv-62334-RLR Document 48-1 Entered on FLSD Docket 09/26/2016 Page 7 of 7

27.

Defendants relied on Plaintiffs representations that it had agreed to transfer the

Case to the District of New Jersey and therefore until very recently refrained from initiating
discovery. It would be highly inequitable to effectively precluding Defendants from timely
taking the discovery necessary to present their case, particularly on this record.
28.

Defendants will suffer irreparable harm unless the trial date and discovery

deadline are not extended. Under the current scheduling orders, Defendants will not be able to
obtain responses to interrogatories and requests for production before the discovery cutoff of
October 7, 2016, much less analyze the documents and information in order to determine what
depositions are needed and to conduct them. Without conducting discovery, Defendants will be
precluded from effectively and properly defending against the claims Plaintiff has asserted in this
Case.
29.

Plaintiff, who seeks monetary damages, will not be prejudiced if a reasonable

discovery schedule is directed by the Court, as confirmed by Plaintiffs proposed 26(f)

scheduling order which, from the date it was discussed between counsel, proposed that discovery
be completed in one year, rather than one month as provided for by the current scheduling order.
I declare under the penalty of perjury that the foregoing is true and correct.
Executed on this 26th day of September, 2016.

/s/ Ronald S. Herzog

Ronald S. Herzog

7
19228245.1