Case 3:20-cv-05784-BRM-DEA Document 55 Filed 04/09/21 Page 1 of 3 PageID: 1378
`
`Arnold B. Calmann
`(973) 645-4828
`abc@saiber.com
`
`BY CM/ECF
`The Honorable Douglas E. Arpert, U.S.M.J.
`United States District Court
`Clarkson S. Fisher Federal Building
` & U.S. Courthouse
`402 East State Street
`Trenton, New Jersey 08608
`
`April 8, 2021
`
`Re: Oanda Corporation v. Gain Capital Holdings, Inc., et al.
`Civil Action No. 20-05784-BRM-DEA
`
`Dear Magistrate Judge Arpert:
`
`We along with our co-counsel Wilson Sonsini Goodrich & Rosati P.C., represent defendant
`GAIN in the above matter.
`
`We write to respectfully request that the Court grant an extension of time for GAIN to
`respond to plaintiff OANDA’s Complaint after receiving Judge Martinotti’s Opinion and Order of
`March 30, 2021 (ECF Nos. 51 & 52), that resolved GAIN’s motion to dismiss. As we explain,
`this request is necessitated by the Court’s Order that presents an unusual procedural occurrence.
`
`Judge Martinotti’s Order dismisses certain aspects of OANDA’s Complaint, while providing
`OANDA an opportunity to amend to attempt to overcome those deficiencies. We attempted to
`determine whether OANDA intended to file an amended pleading, but OANDA refused to
`disclose whether it would do so. Moreover, OANDA is unwilling to agree to an extension of time
`for GAIN to respond to the current Complaint until after the deadline to amend the Complaint has
`passed, which if agreed upon, would permit GAIN to file a single, more efficient and cohesive
`response to either the current Complaint as is or the amended Complaint.
`
`By way of background, as Your Honor is aware, GAIN’s Notice of Motion pursuant to Rule
`12(b)(6) moved “for an Order dismissing Plaintiff Oanda Corporation’s . . . Complaint” for failure
`to state a proper claim. (ECF No. 24). Thus, GAIN moved to dismiss all claims in the case.
`However, Judge Martinotti’s Opinion granted-in-part and denied-in-part GAIN’s motion directed
`to all claims. (ECF No. 52) The Order seemingly requires that GAIN respond to the Complaint
`within 14 days of that Order. With some of the claims yet to be amended (assuming OANDA
`decides to do so), and thus unknown to GAIN at this time, the Order results in GAIN ostensibly
`being required to respond in piecemeal fashion.
`
`We submit that neither Rule 12(b) nor Local Civ. Rule 12.2 squarely addresses the issue
`
`

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`Case 3:20-cv-05784-BRM-DEA Document 55 Filed 04/09/21 Page 2 of 3 PageID: 1379
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`Honorable Douglas E. Arpert, U.S.M.J.
`April 8, 2021
`Page 2
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`here: Where GAIN challenged all claims for relief but the Court denied the motion as to certain
`claims, whether GAIN now needs to answer claims not otherwise dismissed, or may it await the
`filing of the amended pleading to respond to all claims at one time in order to avoid a piecemeal
`pleading process? If there is a requirement that GAIN respond in piecemeal fashion now, it would
`mean it would have to answer as to the claims that remain, and then respond again with another
`pleading when and if an amended pleading is filed, resulting in an unnecessary complexity of
`pleadings in the record of the case.
`
`Since entry of the Court’s Order, GAIN has asked Plaintiff OANDA whether it intends to
`file an amended complaint as permitted by the Court’s Order. OANDA’s response was that it was
`considering its options and refused to commit whether it will or will not amend the Complaint.
`
`OANDA’s unwillingness to inform us whether it will be filing an amended pleading, and its
`unwillingness to agree to an extension of the time for GAIN to respond with a single, unified
`response rather than in piecemeal manner, is contrary to the efficient and orderly administration of
`this case. The scope and content of the claims for relief in the Complaint directly impact GAIN’s
`defenses and the scope of discovery.
`
`How can GAIN apportion and focus its discovery without a full understanding of the claims
`being asserted? Assuming OANDA does file an amended pleading, until it does so GAIN cannot
`determine whether such pleading is subject to another motion to dismiss, or whether it has met
`Judge Martinotti’s directives. How can Your Honor determine the appropriate scope of discovery or
`even whether certain discovery should be excluded without an understanding of the full scope of the
`claims in the case? These practical, real world considerations militate in favor of an extension of
`time to ensure that the parties and the Court avoid any unnecessary duplication or expenditures of
`time and effort before learning exactly what is in and out of this case.
`
`In light of the procedural uncertainty resulting from attempting to reconcile the applicable
`rules with the facts here, the Court’s ability and discretion to “set[] a different time” for responding
`after a Rule 12(b) motion under Fed. R. Civ. P. 12(a)(4), and to avoid piecemeal litigation, it is
`respectfully requested that the Court execute the below Order that GAIN answer or otherwise
`respond within 14 days subsequent to OANDA filing its amended Complaint or the deadline for
`OANDA to do so (June 1, 2021) has passed.
`
`In light of these circumstances and the uncertainty relating to the question of whether an
`amended pleading is to be filed, we also respectfully request that Your Honor defer any demand for
`a Rule 26(f) conference (for developing the Joint Discovery Plan), including commencement of any
`discovery, until the pleadings are closed, at which time the Court can consider the appropriateness
`of setting a date for a Rule 16 Scheduling Conference. As is the usual practice in our Court, the
`setting of the date for the Rule 16 Scheduling Conference engenders the schedule for a Rule 26
`conference.
`
`We thank the Court for its consideration, and look forward to hearing from Your Honor at
`the Court’s earliest convenience.
`
`

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`Case 3:20-cv-05784-BRM-DEA Document 55 Filed 04/09/21 Page 3 of 3 PageID: 1380
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`Honorable Douglas E. Arpert, U.S.M.J.
`April 8, 2021
`Page 3
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`cc:
`
`Counsel of record (by CM/ECF)
`
`Arnold B. Calmann
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`The Court having considered the foregoing, and for other and good cause having been
`shown, it is on this 9th day of April, 2021,
`
`ORDERED, that defendant GAIN answer or otherwise move in response to any
`amended Complaint filed by plaintiff OANDA pursuant to the Order of March 30, 2021 within 14
`days subsequent to OANDA filing its amended Complaint, or alternatively the deadline for
`OANDA to do so of June 1, 2021 has elapsed; and it is further,
`
`ORDERED, that the date for the parties’ Rule 26 meet and confer conference, and the
`date for commencement of any discovery proceedings as well as the date for a Rule 16 Scheduling
`Conference are hereby adjourned until further Order of this Court.
`
`______________________________________
` HON. DOUGLAS E. ARPERT
`UNITED STATES MAGISTRATE JUDGE
`
`