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
