Smith v. Aphex BioCleanse Systems, Inc. et al
Scott Smith |
Aphex BioCleanse Systems, Inc. and Charles Ragland |
David Olund |
1:2022cv10219 |
February 10, 2022 |
US District Court for the District of Massachusetts |
Indira Talwani |
Labor: Other |
05 U.S.C. § 704 Labor Litigation |
Plaintiff |
Docket Report
This docket was last retrieved on April 29, 2024. A more recent docket listing may be available from PACER.
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Filing 57 Judge Indira Talwani: ELECTRONIC ORDER granting the Motion to Withdraw as Counsel to Defendant Aphex BioCleanse Systems, Inc. (Aphex) #32 , filed by Sheehan Phinney Bass & Green, PA, and attorneys Aaron D. Rosenberg and Karen A. Whitley. Plaintiff has assented to the motion. On April 29, 2022, Defendant David Olund, Aphexs Chief Executive Officer, notified the court on Aphexs behalf that he did not object to the motion to withdraw if a fifteen day extension were granted to allow Aphex to seek new counsel. Oppn #37 . The requested extension was granted, see Elec. Order 38 , and accordingly, the court treats the motion as unopposed.The court previously directed Aphex that its new counsel was required to file a Notice of Appearance no later than May 16, 2022, and that if a Notice of Appearance was not filed, the court anticipated entering a Notice of Default as to Aphex, as a corporation may not appear pro se. Elec. Order 38 ; see Local Rule 83.5.5(c). A Notice of Appearance for Aphex was not filed. Instead, on May 16, 2022, Defendant Olund filed a Suggestion of Bankruptcy #39 as to Aphex, and the court subsequently stayed the action.In light of the suggestion of bankruptcy, no notice of default will be entered at this time. The action remains stayed. (Kelly, Danielle) |
Filing 56 Judge Indira Talwani: ELECTRONIC ORDER: In light of Plaintiff's Notice #55 , Plaintiff's Motion for Partial Summary Judgment #52 is terminated. (Kelly, Danielle) |
Filing 55 NOTICE by Scott Smith re 50 Order, #52 MOTION for Partial Summary Judgment WITHDRAWAL (Wasser, Brian) |
Filing 54 NOTICE by Scott Smith re Non-Debtor Defendants (Wasser, Brian) |
Filing 53 MEMORANDUM in Support re #52 MOTION for Partial Summary Judgment filed by Scott Smith. (Attachments: #1 Supplement LR 7.1 Certificate of Compliance and Service)(Wasser, Brian) |
Filing 52 MOTION for Partial Summary Judgment by Scott Smith. (Attachments: #1 Supplement Table of Contents, #2 Supplement Table of Authorities, #3 Supplement Statement of Undisputed Material Facts, #4 Supplement Table of Exhibits for Record Appendix, #5 Exhibit Ex.1- Employment Agreement CSO, #6 Exhibit Ex.2- Aphex Officers and Directors as filed with NV SOS, #7 Exhibit Ex.3- Press Release re Employment of Smith, #8 Exhibit Ex.4- W-2 for 2021, #9 Exhibit Ex5- Email 9-7-21 Demand for Wages, #10 Exhibit Ex.6- Email 6- 11-10-21 Demand for Wages, #11 Exhibit Ex.7- Emails 11-5, 11-10, and 11-12-2021, #12 Exhibit Ex.8- Emails 12-1, 12-6-2021, #13 Exhibit Ex.9- Email 12-20-2021 w/ payroll spreadsheet, #14 Exhibit Ex.10- Email 1-4-2022 Deadline for Backpay, #15 Exhibit Ex.11- Emails 1-8, 1-11-2022, #16 Exhibit Ex.12- Email 1-15-22 re Employment Status, #17 Exhibit Ex.13- Email 1-16-22 Notice of Report to AG, #18 Exhibit Ex.14- Email 2-7-22 no employment, #19 Exhibit Ex.15- Press Release - Suspension, #20 Exhibit Ex.16- Emails 2-27 and 3-2-2022 re Special Board Meeting, #21 Exhibit Ex.17- Press Release - Termination, #22 Exhibit Ex18- Email 4-5-22 Notice to 3rd Party of Criminal Accusations/Investigations, #23 Exhibit Ex19- Email re: Pref Stock Resolution SNST, #24 Exhibit Ex20- Email 3-7-22 Olund controls Aphex, #25 Exhibit Ex21- Email 9-20-21 Olund to Smith, #26 Exhibit Ex22- SaniTech fires CEO and director of Aphex, #27 Exhibit Ex23- Counterfeit Aphex Resolutions, #28 Exhibit Ex24- Soccer Corp. emails Olund-Weaver, #29 Exhibit Ex25- Email 1-22-21 re Soccer Club MASSAGE accounting entries, #30 Exhibit Ex26- 341 Depo Transcript 6-9-22, #31 Exhibit Ex27- SaniTech SOS Filing, #32 Exhibit Ex28- Zapvir SOS Filing, #33 Exhibit Ex29- ZapVir Private Placement Subscription, #34 Affidavit Affidavit of Scott Smith)(Wasser, Brian) |
Filing 51 Judge Indira Talwani: ELECTRONIC ORDER: ORDER entered. Case stayed. (Kelly, Danielle) |
Filing 50 Judge Indira Talwani: ELECTRONIC ORDER: In accordance with the order of the United States Bankruptcy Court for the Middle District of Florida in case 8:22-bk-01917-MGW, a copy of which is filed here as docket entry 49-1, this case is stayed in its entirety pending further order. The parties shall file a joint status report no later than two weeks after the bankruptcy proceeding is resolved. (Kelly, Danielle) |
Filing 49 NOTICE by Scott Smith re #45 Notice (Other), #40 Notice (Other),,, #48 Notice (Other) of Bankruptcy Court Decision (Attachments: #1 Exhibit Ex.1- Decision on Identify Debtor and Scope of Stay, #2 Exhibit Ex.2 - Ch. 11 Petition, #3 Exhibit Ex.3 - Amended Petition)(Wasser, Brian) |
Filing 48 NOTICE by Scott Smith re #40 Notice (Other),,, of Filing in Florida Bankruptcy Court (Wasser, Brian) |
Filing 47 Letter regarding Court's Order dated May 31, 2022 from Michael C. Markham. (Kelly, Danielle) |
Filing 46 Judge Indira Talwani: ORDER entered. Please see attached. (Kelly, Danielle) |
Filing 45 NOTICE by Scott Smith re #43 Response, #44 Response to Court Order (Attachments: #1 Exhibit Ex. 1 - SHARE EXCHANGE AGREEMENT, #2 Affidavit Affidavit of Counsel)(Wasser, Brian) |
Filing 44 RESPONSE TO COURT ORDER by Aphex BioCleanse Systems, Inc. re 42 Order,, Sheehan Phinney Bass & Green, PA's Response to the Court's May 25 Order. (Rosenberg, Aaron) |
Filing 43 Response to Plaintiff's #40 Notice of David R Olund's Alleged Fraud Upon the Court Concerning the Filed Suggestion of Bankruptcy by David Olund. (Kelly, Danielle) |
Filing 42 Judge Indira Talwani: ELECTRONIC ORDER: Defendant Aphex Biocleanse Systems, Inc. has appeared in this action through Sheehan Phinney Bass & Green, PA, and attorneys Aaron D. Rosenberg and Karen A. Whitley, whose Motion to Withdraw as Counsel #32 remains pending. No later than May 27, 2022, counsel shall advise the court whether the entity on whose behalf they have appeared is the debtor identified in the Notice of Bankruptcy Case Filing from the United States Bankruptcy Court for the Middle District of Florida docketed here as Suggestion of Bankruptcy #39 or a different entity. (Kelly, Danielle) |
Filing 41 Judge Indira Talwani: ELECTRONIC ORDER: Plaintiff Scott Smith contends in his Notice #40 that the Notice of Bankruptcy Case Filing from the United States Bankruptcy Court for the Middle District of Florida docketed here as Suggestion of Bankruptcy #39 by Defendant Olund concerns a corporation incorporated in Florida, and not the Nevada corporation, Aphex Biocleanse Systems, Inc. ("Aphex") sued here. No later than June 3, 2022, Defendant Olund shall clarify whether he contends that the bankruptcy filing was made on behalf of Defendant Aphex, and if so, the factual basis for that contention. (Kelly, Danielle) |
Filing 40 NOTICE by Scott Smith re #39 Suggestion of Bankruptcy as Fraud Upon the Court by Defendant David R. Olund (Attachments: #1 Exhibit EX 1 - Resolution to Dissolve Aphex FL, #2 Exhibit EX 2 - Articles of Dissolution of Aphex FL signed by David Olund, #3 Exhibit EX 3 - SOS showing Voluntary Dissolution Aphex FL, #4 Exhibit EX 4 - Email Olund to Board re Disolve Aphex FL, #5 Exhibit Ex. 5 -Aphex FL voluntary BK Petition, #6 Exhibit Ex. 6 - APHEX NV EIN Form 8-K, #7 Exhibit Ex. 7 - Name History Sunset Brands to Sunset Capital Assets to Aphex BioCleanse Systems, #8 Exhibit Ex. 8 Email Notice to OLUND re 2 Aphexes, #9 Affidavit Affidavit of Plaintiff, SMITH, #10 Affidavit Affidavit of Counsel)(Wasser, Brian) |
Filing 39 SUGGESTION OF BANKRUPTCY Upon the Record as to Aphex BioCleanse Systems, Inc. by David Olund. (Attachments: #1 Envelope)(Kelly, Danielle) |
Filing 38 Judge Indira Talwani: ELECTRONIC ORDER: Defendant Aphex BioCleanse Systems, Inc. (Aphex), reported on April 29, 2022, that it would not oppose counsels motion to withdraw if a fifteen-day extension of time is granted for Aphex to seek new counsel. See Opposition #37 . Accordingly, the court grants Aphex the additional time to seek new counsel. Aphexs new counsel shall file a Notice of Appearance no later than May 16, 2022. In the event that new counsel does not file a Notice of Appearance, the court anticipates granting current counsels Motion to Withdraw #32 and entering a notice of default as to Aphex, as a corporation may not appear pro se. See Local Rule 83.5.5(c).As a courtesy to the anticipated new counsel, Aphexs time to respond to the complaint is extended to May 23, 2022. Aphexs current counsel shall promptly serve a copy of this Electronic Order on Aphex by email and First Class Mail. (Kelly, Danielle) |
Filing 37 Opposition re #32 Assented to MOTION to Withdraw as Attorney and for Extension of Response Deadline Opposition to Counsel's Motion to Withdraw Without a Fifteen Day Extension filed by Aphex BioCleanse Systems, Inc.. (Rosenberg, Aaron) |
Filing 36 Judge Indira Talwani: ELECTRONIC ORDER entered granting #35 Assented to MOTION to Continue Scheduling Conference to 30 days after Order on Motion to Withdraw filed by Aphex BioCleanse Systems, Inc. The Scheduling Conference set for 05/10/2022, is canceled and will be reset by the clerk. (MacDonald, Gail) |
Filing 35 Assented to MOTION to Continue Scheduling Conference to 30 days after Order on Motion to Withdraw by Aphex BioCleanse Systems, Inc..(Rosenberg, Aaron) |
Filing 34 SEE attached NOTICE of Scheduling Conference. Scheduling Conference set for 5/10/2022 02:45 PM in Courtroom 9 (Remote only) before Judge Indira Talwani. This hearing will be conducted by video conference. Counsel/Parties of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy clerk as soon as possible. If your email address is not listed on the docket, please email the clerk at gail_macdonald@mad.uscourts.gov as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html. For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov.(MacDonald, Gail) |
Filing 33 Judge Indira Talwani: ELECTRONIC ORDER regarding #32 Motion to Withdraw as Attorney and for Extension of Response Deadline. The request for an extension of time is allowed and Defendant Aphex's time to respond to the Complaint is extended to May 4, 2022. The court reserves ruling on counsel's request for leave to withdraw. A corporation may not appear pro se. See Local Rule 83.5.5(c). Accordingly, if Aphex assents to its attorney's withdrawal but still seeks to defend against this action, its new counsel shall file a Notice of Appearance no later than April 29, 2022. Alternatively, if Aphex opposes the motion, its corporate officer shall submit an opposition to the motion no later than April 29, 2022, by forwarding the opposition to Attorney Rosenberg or Attorney Whitley for filing on the docket. Aphex's current counsel shall promptly serve a copy of this Electronic Order on Aphex by email and First Class Mail. (Talwani, Indira) |
Filing 32 Assented to MOTION to Withdraw as Attorney and for Extension of Response Deadline by Aphex BioCleanse Systems, Inc..(Rosenberg, Aaron) |
Filing 31 SUR-REPLY to Motion re #21 MOTION for Leave to File, #10 MOTION to Dismiss for Lack of Jurisdiction filed by Scott Smith. (Attachments: #1 Affidavit Aff Smith in SurReply, #2 Affidavit Aff Weaver in SurReply)(Wasser, Brian) |
Filing 30 SUR-REPLY to Motion re #8 MOTION to Dismiss for Lack of Jurisdiction, #13 MOTION for Leave to File filed by Scott Smith. (Attachments: #1 Affidavit Aff Smith in SurReply, #2 Affidavit Aff Weaver in SurReply)(Wasser, Brian) |
Filing 29 Judge Indira Talwani: ELECTRONIC ORDER denying Motion to Reply #27 . (Kelly, Danielle) |
Filing 28 Judge Indira Talwani: ELECTRONIC ORDER: granting in part and denying in part Plaintiffs Motion for Clarification #23 . Plaintiff docketed his Request for Clerks Entry of Default #12 as a motion, and accordingly, the court treated it as such. See Electronic Order 20 . Where Plaintiff may not have intended his filing to be a motion seeking an order of the court but only a request to the clerk, the court hereby amends Electronic order 20 to delete the final clause of the last sentence. The court finds no further relief or clarification warranted. (Kelly, Danielle) |
Filing 27 Motion to Reply To Defendant's Opposition to #23 MOTION for Clarification filed by Scott Smith. (Attachments: #1 Exhibit Ex 1 REPLY to Aphex Opposition to Clarification R55)(Wasser, Brian) Modified on 3/31/2022: Corrected event type and docket text to properly reflect document (Kelly, Danielle). |
Filing 26 Opposition re #23 MOTION for Clarification filed by Aphex BioCleanse Systems, Inc.. (Attachments: #1 Exhibit Ex. 1 (Email Chain Between Flynn and Plaintiff's Counsel), #2 Exhibit Ex. 2 (Email from Flynn to Plaintiff's Counsel))(Rosenberg, Aaron) |
Filing 25 Judge Indira Talwani: ELECTRONIC ORDER granting #24 Motion for Leave to File Sur-Reply in Opposition to defendants' replies. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Kelly, Danielle) |
Filing 24 MOTION for Leave to File Sur-Reply in Opposition to defendants' replies by Scott Smith.(Wasser, Brian) |
Filing 23 MOTION for Clarification by Scott Smith. (Attachments: #1 Exhibit Ex 1 Aphex REBUFFS Smith Offer to Extend Time, #2 Affidavit Affidavit of Counsel)(Wasser, Brian) |
Filing 22 Judge Indira Talwani: ELECTRONIC ORDER granting Defendant Charles Ragland's #21 Motion for Allowance of a Reply. The court grants leave nunc pro tunc for the filing of this document and the attached exhibits, but cautions Defendant Ragland that motions for leave to file should not include the material sought to be filed as part of the motion itself. Instead, such proposed pleading may be attached as an exhibit to the motion seeking leave to file. (Kelly, Danielle) |
Filing 21 Application of Defendant Charles Ragland for the Allowance of a Reply to Plaintiff's Opposition to Defendant Ragland's Motion to Dismiss Made Pursuant to Local Rule 7.1(b)(3) of the Local Rules of this Court by Charles Ragland. (Attachments: #1 Exhibit 1, #2 Exhibit A)(Kelly, Danielle) |
Filing 20 Judge Indira Talwani: ELECTRONIC ORDER DENYING Plaintiffs Motion for Entry of Default #12 and GRANTING Defendant Aphex BioCleanse Systems, Inc.s #14 Motion for Extension of Time to April 20, 2022, to Respond to Complaint. The court expects all counsel to comply with Local Rule 7.1(a)(2). That rule requires counsel to confer and attempt in good faith to resolve or narrow issues before filing a motion, and to include a certificate so attesting to a motion. Here, Plaintiffs Motion for Entry of Default #12 includes no such certificate. Instead, Plaintiffs Motion for Entry of Default #12 and the Affidavit of Counsel in Support of Entry of Default [12-1] leaves the court to infer incorrectly that Plaintiffs counsel last heard from Defendants counsel on March 16, 2022. To the contrary, according to the record before the court, Defendants new counsel reached out on Friday March 18 and Monday March 21, 2022, to confer pursuant to Local Rule 7.1 before filing his motion to extend time but Plaintiffs counsel did not respond. See Motion for Extension of Time, Local Rule 7.1 Certificate #14 ; E-mail [14-1]; see also Opposition to Motion for Extension of Time #17 (no response to this assertion). Finally, while Plaintiff was not required to accede to Defendants request for more time and was certainly welcome to seek a default and oppose Defendants motion after counsel had conferred, Plaintiff counsels failure to respond to the request to confer, failure to advise the court of the existence of new defense counsel, and race to the courthouse to file the motion for default ahead of the Defendants motion violates the spirit of Local Rule 7.1.(Kelly, Danielle) Modified on 4/1/2022: Amended pursuant to Electronic Order [#28] (Kelly, Danielle). |
Filing 19 Judge Indira Talwani: ELECTRONIC ORDER granting Defendant Olund's #13 Motion for Allowance of the Below Reply. The court grants leave nunc pro tunc for the filing of this document, but cautions Defendant Olund that motions for leave to file should not include the material sought to be filed as part of the motion itself. Instead, such proposed pleadings may be attached as an exhibit to the motion seeking leave to file. (Kelly, Danielle) |
Filing 18 NOTICE of Appearance by Karen A. Whitley on behalf of Aphex BioCleanse Systems, Inc. (Whitley, Karen) |
Filing 17 Opposition re #14 MOTION for Extension of Time to April 20, 2022 to File Answer re #4 Amended Complaint, filed by Scott Smith. (Attachments: #1 Exhibit Ex. 1 Notice of Special Board Meeting, #2 Affidavit Affidavit of Counsel)(Wasser, Brian) |
Filing 16 AFFIDAVIT OF SERVICE Executed by Scott Smith. Aphex BioCleanse Systems, Inc. served on 2/16/2022, answer due 3/16/2022. Acknowledgement filed by Scott Smith. (Wasser, Brian) |
Filing 15 Opposition re #13 MOTION for Leave to File filed by Scott Smith. (Wasser, Brian) |
Filing 14 MOTION to Extend Deadline to Respond to Complaint by Aphex BioCleanse Systems, Inc.. (Attachments: #1 Exhibit Ex. 1 (Email Chain Between Counsel))(Rosenberg, Aaron) Modified on 3/23/2022: Corrected docket text to properly reflect document (Kelly, Danielle). |
Filing 13 MOTION of Defendant Olund for the Allowance of the Below Reply to Plaintiff's Opposition to his Motion to Dismiss Under FRCP 12(b)(1), (b)(2) and b, and b(3) by David Olund. (Attachments: #1 Exhibit A, #2 Cover Letter) (Kelly, Danielle) |
Filing 12 MOTION for Entry of Default by Scott Smith. (Attachments: #1 Affidavit Aff Counsel re Entry Default)(Wasser, Brian) |
Filing 11 Opposition re #10 MOTION to Dismiss for Lack of Jurisdiction filed by Scott Smith. (Attachments: #1 Affidavit Affidavit of Scott Smith in Opposition)(Wasser, Brian) |
Filing 10 Motion of Defendant Charles Ragland for Dismissal of the Amended Complaint Pursuant to FRCP (b)(2) For Lack of Personal Jurisdiction and FRCP (b)(1) for Lack of Subject Matter Jurisdiction and FRCP 12 (b)(3) for Improper Venue by Charles Ragland. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E) (Dore, Samantha) |
Filing 9 Opposition re #8 MOTION to Dismiss for Lack of Jurisdiction filed by Scott Smith. (Attachments: #1 Affidavit Affidavit of Smith in Opposition)(Wasser, Brian) (Attachment 1 replaced on 3/14/2022) (Dore, Samantha). (Additional attachment(s) added on 3/14/2022: #2 Exhibit 1, #3 Exhibit 2, #4 Exhibit 3, #5 Exhibit 4, #6 Exhibit 5) (Dore, Samantha). |
Filing 8 MOTION of Defendant David R. Olund for Dismissal of the Amended Complaint Pursuant to FRCP (b)(2) for Lack of Personal Jurisdiction and FRCP 12 (b)(1) for Lack of Subject Matter Jurisdiction and FRCP 12 (b)(3) For Improper Venue by David Olund. (Attachments: #1 Certificate of Service, #2 Cover Letter, #3 Exhibit A, #4 Exhibit B, #5 Exhibit C, #6 Exhibit D, #7 Exhibit E, #8 Exhibit 1A, #9 Exhibit 2) (Dore, Samantha) |
Filing 7 AFFIDAVIT OF SERVICE Executed by Scott Smith. Aphex BioCleanse Systems, Inc. served on 2/23/2022, answer due 3/16/2022. Acknowledgement filed by Scott Smith., SUMMONS Returned Executed by Scott Smith. Aphex BioCleanse Systems, Inc. served on 2/23/2022, answer due 3/16/2022. (Wasser, Brian) |
Filing 6 AFFIDAVIT OF SERVICE Executed by Scott Smith. Charles Ragland served on 2/11/2022, answer due 3/4/2022. Acknowledgement filed by Scott Smith., SUMMONS Returned Executed by Scott Smith. Charles Ragland served on 2/11/2022, answer due 3/4/2022. (Wasser, Brian) |
Filing 5 AFFIDAVIT OF SERVICE Executed by Scott Smith. David Olund served on 2/15/2022, answer due 3/8/2022. Acknowledgement filed by Scott Smith., SUMMONS Returned Executed by Scott Smith. David Olund served on 2/15/2022, answer due 3/8/2022. (Wasser, Brian) |
Filing 4 AMENDED COMPLAINT against Charles Ragland, Aphex BioCleanse Systems, Inc., David Olund, filed by Scott Smith. (Attachments: #1 Exhibit Ex 1- AG Authorization for Private Civil Lawsuit, #2 Exhibit Ex 2-CSO Employment Agreement)(Wasser, Brian) |
Filing 3 Summons Issued as to Aphex BioCleanse Systems, Inc., Charles Ragland. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Pacho, Arnold) |
Filing 2 ELECTRONIC NOTICE of Case Assignment. Judge Indira Talwani assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Donald L. Cabell. (Finn, Mary) |
Filing 1 COMPLAINT against Aphex BioCleanse Systems, Inc., David Olund, Charles Ragland Filing fee: $ 402, receipt number AMADC-9179003 (Fee Status: Filing Fee paid), filed by Scott Smith. (Attachments: #1 Exhibit Ex 1- AG Authorization for Private Civil Lawsuit, #2 Exhibit Ex 2-CSO Employment Agreement, #3 Civil Cover Sheet Cover Sheet & Category Form)(Wasser, Brian) |
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