China MediaExpress Holdings, Inc. (fka CCME)

[Reganwould]

Was the motion for extension filed by CCME in the Starr case ever posted on the board? If so, I apologize for the repeat information.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
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STARR INVESTMENTS CAYMAN II, INC.,
Plaintiff,
v.
CHINA MEDIAEXPRESS HOLDINGS, INC.,
DELOITTE TOUCHE TOHMATSU, ZHENG
CHENG, AND JACKY LAM,
Defendants.
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Case No. 1:11-CV-00233-SLR
Honorable Sue L. Robinson
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DEFENDANTS CHINA MEDIAEXPRESS HOLDINGS, INC. AND ZHENG CHENG’S
MOTION FOR EXTENSION OF TIME TO RESPOND TO THE COMPLAINT
Defendants China MediaExpress Holdings, Inc. (“CCME” or the “Company”)
and Zheng Cheng (together, “Defendants”) respectfully move this Court for an Order, pursuant
to Fed. R. Civ. P. 6(b)(1)(A), extending their time to answer, move, or otherwise respond to
Plaintiff’s Complaint in this action for sixty (60) days. In support of this Motion, Defendants
state the following:
1. On March 22, 2011, Plaintiff served its Complaint upon Defendants through the
Company’s Delaware agent for service of process. According to this Court’s docket, Defendants
must answer, move, or otherwise respond to the Complaint on or before April 12, 2011. See
Docket Entry Nos. 4 and 5.
2. On April 5, 2011, Plaintiff's counsel wrote to the Clerk of the Court to request
that, pursuant to 10 Del. C. § 3114(c) and the practices of the Court, the Clerk send defendants
Zheng Cheng and Jacky Lam a copy of the Complaint and Summons at the Company's principal
place of business in Hong Kong via U.S. mail. The Clerk filed an affidavit later that day on
April 5, stating that copies of the Complaint and Summons had been sent as requested.
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3. Pursuant to 10 Del. C. § 3114 (d), the Delaware statute on which Plaintiff relies
for service on the individual Defendants Cheng and Lam, the time to respond is computed not
from the time that the Company's registered agent is served, but rather from the time of mailing
of the Summons and Complaint by the Clerk on April 5, 2011. Accordingly, Defendants Cheng
and Lam have until April 25 to respond to the Complaint.
4. Indeed, 10 Del. C. § 3114 (d) contemplates that nonresident defendants may need
additional time to respond: "the court in which such action has been commenced may order such
continuance or continuances as may be necessary to afford such director, trustee, member or
officer reasonable opportunity to defend the action."
5. For the reasons set forth below, Defendants respectfully request an additional
sixty (60) days to answer, move or otherwise respond to the Summons and Complaint in this
action. Defendants made that request of Plaintiff, and Plaintiff refused to extend the deadline at
all, unless Defendants would accede to certain demands (discussed below) that Defendants found
unwarranted and unreasonable. Accordingly, Defendants now seek relief from this Court.
6. This Court has broad discretion to enlarge the time for responding to a complaint
under Rule 6(b)(1). See Advisory Comm. Note on FED.R.CIV.P. 6(b) (“Rule 6(b) is a rule of
general application giving wide discretion to the court to enlarge these [the Federal Rules’] time
limits or revive them after they have expired.”). A motion for extension of time under Rule
6(b)(1) “normally will be granted in the absence of bad faith or prejudice to the adverse party.”
4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1165, at 521-23
(3d ed. 2002).
7. Good cause exists to extend Defendants’ time to answer, move, or otherwise
respond to the Complaint for sixty (60) days. The Defendant Company is a Delaware
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corporation headquartered in China. Defendant Mr. Cheng is a citizen and resident of China and
does not speak English. Additional time is needed to respond to the Complaint considering the
need to translate any proposed response into Chinese and the logistical difficulty of
communicating with Defendants, owing to the 12-hour time difference, and 7000 mile distance,
between New York and China.
8. Moreover, all of the conduct alleged in the Complaint that forms the basis of
Plaintiff’s claims took place in China. In its Complaint in this action, Plaintiff claims that the
Company is a fraud. With minor exception, Plaintiff bases these serious allegations not on its
own knowledge or investigation, but on the claims of others, most of whom are either
anonymous bloggers, short sellers who stand to profit by driving down the stock price, or
persons believed to be working in concert with short sellers. The minor exception noted above
refers to Plaintiff’s quotation from the resignation letter of a former Company director. Those
comments are entirely self-serving, however, coming as they do from Plaintiff’s designee on the
Board and only days before the Complaint was filed.
9. The bloggers and the others making allegations claim that the business, and
therefore the revenues, of the Company are overstated. That business exists exclusively in
China. The factual basis for the bloggers’ claims, if it exists anywhere, exists exclusively in
China. The factual refutation of those claims exists exclusively in China. The scope and breadth
of Plaintiff’s due diligence efforts presumably exists in China.
10. Given the geographic, time zone, and language issues involved in considering and
responding to Plaintiff’s claims, the Defendants recognized that they would need significant
additional time to respond.
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11. Defendants have made reasonable efforts to obtain Plaintiff’s consent to the
requested extension of time. On Thursday, April 7, 2011, Defendants’ New York counsel, Laura
M. Vasey of Loeb & Loeb LLP, contacted Plaintiff’s New York counsel, Nicholas Gravante of
Boies, Schiller, & Flexner LLP (“Boies Schiller”), to request an extension of time to respond to
the Complaint, leaving him a voicemail. On Friday, April 8, 2011, Lee Wolosky and Marilyn
Kunstler of Bois Schiller telephoned Ms. Vasey, whereupon she requested Plaintiff’s consent to
a 60-day extension of time for Defendants (and defendant Jacky Lam) to respond to the
Summons and Complaint, to allow sufficient time to communicate with Defendants and to
prepare a response. Later that same day, Mr. Wolosky advised Ms. Vasey that Plaintiff would
not consent to any extension of time due to Plaintiff’s concern about the potential dissipation of
the Company’s assets in the United States.
12. Other than to point to the same accusations by anonymous accusers and selfinterested
short sellers, however, Plaintiff points to no basis for its supposed concerns about
dissipation of assets. Plaintiff pointed to no transfers out of the Company’s one bank account in
the United States that were not made in the ordinary course of business or were in any way
fraudulent. Rather, Plaintiff tried to barter its consent to Defendants’ common and entirely
reasonable request for an extension to respond to the Complaint for the unfair and unwarranted
tactical advantage of relief, which Plaintiff has not sought and to which Plaintiff is not entitled.
13. This is Defendants’ first request for an extension of time to respond to the
Complaint.
14. Defendants are making this limited appearance for the sole purpose of seeking
this extension of time to answer, move, or otherwise respond to the Summons and Complaint.
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15. By this limited appearance, Defendants do not waive, and hereby expressly
reserve, any and all of their rights, claims, and defenses to any claims that Plaintiff has asserted
or may assert in the future, including defenses based upon ineffective service of process and lack
of personal jurisdiction.
WHEREFORE, for the reasons set forth herein, Defendants China MediaExpress
Holdings, Inc. and Zheng Cheng respectfully request that the Court enter an order extending their
time to answer, move, or otherwise respond to the Complaint through and including June 13,
2011.
Dated: April 11, 2011 Respectfully submitted,
/s/ Albert H. Manwaring, IV ______
Albert H. Manwaring, IV (Del. Bar No. 4339)
PEPPER HAMILTON LLP
Hercules Plaza, Suite 5100
1313 Market Street
Wilmington, DE 19899-1709
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Defendants China MediaExpress
Holdings, Inc. and Zheng Cheng
Of Counsel:
Eugene R. Licker
Laura M. Vasey
LOEB & LOEB LLP
345 Park Avenue
New York, New York 10154-1895
[phone] (telephone)
[phone] (fax)
[e-mail]
[e-mail]
Case 1:11-cv-00233-SLR Document 9 Filed 04/11/11 Page 5 of 6 PageID #: 60
CERTIFICATE OF SERVICE
I, Albert H. Manwaring, IV, hereby certify that on April 11, 2011, a copy of the
Defendants China MediaExpress Holdings, Inc. and Zheng Cheng’s Motion for Extension of
Time to Respond to the Complaint, Local Rule 7.1.1 Certification, and Proposed Order were
served with the Clerk of the Court using CM/ECF, which will send automatic notification of the
filings to the following:
Andre G. Bouchard, Esq.
Bouchard Margules & Friedlander, P.A.
222 Delaware Avenue, Suite 1400
Wilmington, DE 19801
Attorneys for Plaintiff
/s/ Albert H. Manwaring, IV ______
Albert H. Manwaring, IV (Del. Bar No. 4339)
Case 1:11-cv-00233-SLR Document 9 Filed 04/11/11 Page 6 of 6 PageID #: 61