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Case 3:10-cv-00669-CRS Document 48 Filed 05/09/11 Page 1 of 3 PageID #: 869

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE


BUSINESS PAYMENTS SYSTEMS, LLC et al

Plaintiffs,

v.

NATIONAL PROCESSING COMPANY,

Defendant,







Civil Action No. 3:10-cv-669-CRS









PLAINTIFFS= REPLY TO NPC’S RESPONSE TO PLAINTIFFS’ MOTION TO STAY
DEADLINE FOR FILING REPLY TO DEFENDANT=S OPPOSITION TO PLAINTIFFS=

MOTION TO AMEND COMPLAINT, OR IN THE ALTERNATIVE FOR AN

ENLARGEMENT OF PLAINTIFFS’ TIME TO REPLY

Plaintiffs Business Payments Systems, LLC (“BPS”) and Merchant Capital Processing,

Inc. (“MCP”) file this REPLY in further support of their Motion to Stay the determination of

Plaintiffs= Motion to Amend the Complaint until five days after the Court’s decision on the

Defendant=s Motion for a Stay of its Motion to Dismiss the Complaint and a Stay of the April 4,

2011 Order of this Court establishing a briefing schedule for the Plaintiffs= pending reply to the

Defendant NPC=s opposition to Plaintiffs= Motion to Amend their Complaint.

In its April 21, 2011 response to the instant motion, defendant NPC submitted a proposed

order proposing that Plaintiffs’ reply papers on their motion to amend the complaint be served

seven (7) days after this Court rules on the instant motion to stay. NPC has effectively consented

to the alternative relief sought by Plaintiffs on the instant motion, the enlargement of time to file

said reply. This reply shall therefore focus on NPC’s opposition to the motion for a stay of

Plaintiffs’ motion to amend.

As set forth in Plaintiffs’ instant motion, which was filed on April 4, 2011, Plaintiffs

merely sought this stay and enlargement in order to prevent Defendant NPC from procuring the

Case 3:10-cv-00669-CRS Document 48 Filed 05/09/11 Page 2 of 3 PageID #: 870

tactical advantage it has sought through NPC’s pending motion to stay its obligation to file a reply

on its pending Motion to Dismiss the Complaint until after NPC has seen Plaintiffs’ reply on the

motion to amend the Complaint (which was served in the form of a cross-motion in conjunction

with Plaintiffs’ opposition to Defendant NPC’s motion to dismiss the Complaint). In an attempt to

resolve the issues over the stays, Plaintiffs have taken the high road and proposed simultaneous

reply briefings of NPC’s motion to dismiss and Plaintiffs’ cross-motion to amend the complaint

(which was the first attempt by Plaintiffs to substantively amend the original complaint and which

motion does NOT admit Plaintiffs’ lack of standing; conversely, the motion and the amended

pleading demonstrate that Plaintiffs have standing against defendant NPC and the additional

defendants that will be added by the Proposed First Amended Complaint).

In its April 21st response to the instant motion, Defendant NPC now admits that its motion

to stay its own reply on NPC’s motion to dismiss the Complaint was in fact intended to provide

NPC with two bites at the apple. NPC argues that its motion to dismiss the original complaint

would be mooted if Plaintiffs’ pending motion to amend the complaint was granted and that it

would have the opportunity to make a fresh motion to dismiss the Proposed First Amended

Complaint under Rule 12(b)(6). Quite to the contrary, the time to challenge the legal sufficiency

of the Proposed First Amended Complaint was in NPC’s opposition to Plaintiffs’ Motion to

Amend, which cursorily argued that the amendment would be futile. A granting of the Motion to

Amend should also deny NPC’s motion to dismiss, with prejudice precluding another such

12(b)(6) motion.

This Court should not countenance such dilatory tactics by NPC, and should instead enter

Plaintiffs’ proposed scheduling order, which would require that both parties file reply briefs



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Case 3:10-cv-00669-CRS Document 48 Filed 05/09/11 Page 3 of 3 PageID #: 871

simultaneously (within 10 days of the Court’s new scheduling order) so that the Court can decide

the related motions on the pleading, ending NPC’s procedural wrangling and moving this case

forward on the merits.



















Respectfully submitted,


s/Myrle L. Davis_________

Myrle L. Davis
Kruger & Schwartz
3339 Taylorsville Road
Louisville, Kentucky 40205
(502) 485-9200

s/Mitchell C. Shapiro______

Mitchell C. Shapiro
Law Offices of Mitchell C. Shapiro
15 Cutter Mill Road, #207
Great Neck, New York 11021
(516) 570-2773
Counsel for Plaintiffs






CERTIFICATE OF SERVICE




I hereby certify that on May 9, 2011, a copy of the foregoing was served electronically on

all parties of record in accordance with the method established under the Court=s CM/EFC
Administrative Procedures and Standing Order



s/Myrle L. Davis_____________


















MYRLE L. DAVIS



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