GBTKAT Gold, LLC et al v. Golden Queen, LLC, et al

Filing 32

ORDER GRANTING IN PART 30 Stipulation to Extend Pleading Amendment Deadline, signed by Magistrate Judge Jennifer L. Thurston on 1/8/2021. (Hall, S)

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Steven D. McGee #71886
Jared C. Marshall #272065
Caroline M. Lutz #274836
FENNEMORE DOWLING AARON
8080 North Palm Avenue, Third Floor
P.O. Box 28902
Fresno, California 93729-8902
Tel: [phone]
Fax: [phone]

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Attorneys for Plaintiffs, GBTKAT GOLD, LLC and FAR AWAY, LLC

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Bradley B. Johnson #257220
Adam K. Guernsey #282105
Russell A. Frink #302522
HARRISON TEMBLADOR HUNGERFORD & JOHNSON LLP
2801 T Street
Sacramento, California 95816
Tel: [phone]
Fax: [phone]

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Attorneys for Defendant, GOLDEN QUEEN MINING COMPANY, LLC

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GBTKAT GOLD, LLC, a California limited
liability and FAR AWAY, LLC, a California
limited liability company,

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Plaintiffs,

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vs.

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GOLDEN QUEEN, LLC, a California limited
liability company; GOLDEN QUEEN
MINING COMPANY, LTD, a publicly traded
British Columbia corporation

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Case No. 1-19-cv-01114-DAD-JLT
STIPULATION TO EXTEND PLEADING
AMENDMENT DEADLINE AND MODIFY
SCHEDULING ORDER AND [PROPOSED]
ORDER GRANTING IN PART
(Doc. 30)

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Defendants.

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STIP. TO EXTEND PLEADING AMENDMENT DEADLINE & MODIFY SCHEDULING ORDER & [PROPOSED] ORDER THEREON

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Plaintiffs GBTKAT GOLD, LLC and FAR AWAY, LLC (collectively,

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“Plaintiffs”) and Defendant GOLDEN QUEEN MINING COMPANY, LLC (erroneously named

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in the Complaint as GOLDEN QUEEN, LLC) (“Defendant”) (collectively, the “Parties”), by and

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through their respective counsel of record, submit the following Stipulation to Extend Pleading

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Amendment Deadline and Modify Scheduling Order and Proposed Order Thereon in connection

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with Plaintiffs’ intent to file an amended complaint in the above-captioned action, to which

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Defendant has already consented and will also stipulate for Plaintiffs’ leave to file, pursuant to

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Federal Rules of Civil Procedure 6(b)(1)(A), 15(a)(2), 16(b) and 29(b), Local Rules 143 and 144,

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the Court’s Scheduling Order dated December 30, 2019 (Doc. No. 18) (the “Scheduling Order”),

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and the Order Granting Stipulation to Amend the Case Schedule dated May 3, 2020 (Doc. No. 28)

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(the “First Amended Scheduling Order”).

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I.

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RECITALS

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WHEREAS, on August 15, 2019, Plaintiffs filed their complaint in the U.S.

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District Court, Eastern District of California for: Accounting; Declaratory Relief; Waste;

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Conversion; and Unfair Competition – Cal. Bus. & Prof. §17200, et seq. (Doc No. 1) (the

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“Complaint”).
WHEREAS, on September 30, 2019, Defendant filed its answer to Plaintiffs’

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Complaint (Doc. No. 7) (the “Answer”).

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WHEREAS, on December 30, 2019, the Court issued the Scheduling Order (Doc.

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18) providing for pleading, discovery and motion deadlines, settlement and pre-trial conference

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hearings, and the date of commencement of trial regarding the above-captioned action. Pursuant

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to the Scheduling Order, the pleading amendment deadline was March 30, 2020. A true and correct

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copy of the Scheduling Order is attached hereto as Exhibit “A” and is incorporated herein by this

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reference.

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WHEREAS, the Parties previously stipulated to extend deadlines other than the

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pleading amendment deadline and modify the Scheduling Order due to the COVID-19 public

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health emergency, which was ordered by the Court on August 28, 2020 pursuant to the First
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STIP. TO EXTEND PLEADING AMENDMENT DEADLINE & MODIFY SCHEDULING ORDER & [PROPOSED] ORDER THEREON

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Amended Scheduling Order (Doc. No. 28). A true and correct copy of the First Amended

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Scheduling Order is attached hereto as Exhibit “B” and is incorporated herein by this reference.

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WHEREAS, Plaintiffs now request an extension of the pleading amendment

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deadline and to modify the Scheduling Order and the First Amended Scheduling Order in order to

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file a first amended complaint as described further herein below, to which Defendant has already

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consented and will also stipulate for Plaintiffs’ leave to file. Pursuant to Federal Rule of Civil

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Procedure 15(a)(2), leave to amend should be freely given when justice so requires, unless the

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opposing party makes a showing of undue prejudice, or bad faith or dilatory motive on the part of

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the moving party. USCS Fed Rules Civ Proc R 15(a)(2); Sonoma Cty. Ass'n of Retired Emples. v.

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Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013).

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WHEREAS, pursuant to Federal Rule of Civil Procedure 16(b)(4), modification of

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a scheduling order is proper upon a showing of good cause, unless the court finds that the request

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has been unreasonably delayed and will prejudice the non-moving party, that the moving party has

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acted in bad faith, or that the amendment would be futile. USCS Fed Rules Civ Proc R 16(b)(4);

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AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 952-953 (9th Cir. 2006).

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WHEREAS, given recent discovery exchanged between the Parties, good cause

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exists to allow Plaintiffs to amend the pleading deadline in the above-captioned action in order to

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amend their Complaint for the following reasons: (i) to correct two scrivenor’s errors regarding

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Defendant’s and co-defendant GOLDEN QUEEN MINING COMPANY, LTD’s, a publicly

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traded British Columbia corporation, respective entity names; (ii) to correct the date of the alleged

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commencement of the co-tenancy between the Parties from January 1, 2001 to January 11, 2011;

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and (iii) to include an additional declaratory relief cause of action to determine the relationship of

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the Parties (a) during the lease period of January 15, 1988 through January 10, 2011, and (b) after

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the expiration of the lease period from January 11, 2011 to present, both of which are in dispute.

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Amendment to the pleading deadline is important to the Parties’ comprehensive litigation of this

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matter to resolve all known disputes. Defendant will not be prejudiced in its defense of this action

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if this request is granted. Further, only through recent discovery have Plaintiffs discovered the

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aforementioned proposed amendments. As such, there has been no delay in bringing the instant
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STIP. TO EXTEND PLEADING AMENDMENT DEADLINE & MODIFY SCHEDULING ORDER & [PROPOSED] ORDER THEREON

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request, and this Stipulation constitutes the Parties’ first request to amend the pleading deadline.

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WHEREAS, for the foregoing reasons and for good cause shown, the Parties

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request that this Court extend the pleading amendment deadline and modify the Scheduling Order

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(Doc. 18) and the First Amended Scheduling Order (Doc. No. 28).

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II.

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STIPULATION
THEREFORE, Plaintiffs and Defendant, by and through their respective counsel of

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record, hereby stipulate and agree and request that the Court order that:
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The current pleading amendment deadline of March 30, 2020 pertaining to

the above-captioned action, as set forth in the Scheduling Order (Doc. 18), be vacated; and
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The pleading amendment deadline pertaining to the above-captioned action

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be revised and extended to March 12, 2021 as a modification of the Scheduling Order (Doc. 18)

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and the First Amended Scheduling Order (Doc. No. 28), or in the alternative, pursuant to a different

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date ordered at the Court’s discretion.
IT IS SO STIPULATED.

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Dated:

January 7, 2021

FENNEMORE DOWLING AARON

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By: /s/ Steven D. McGee
Steven D. McGee
Jared C. Marshall
Caroline M. Lutz
Attorneys for Plaintiffs,
GBTKAT GOLD, LLC and FAR AWAY, LLC

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Dated:

January 7, 2021

HARRISON TEMBLADOR HUNGERFORD &
JOHNSON LLP

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By: /s/ Bradley B. Johnson
Bradley B. Johnson
Adam K. Guernsey
Russell A. Frink
Attorneys for Defendant,
GOLDEN QUEEN MINING COMPANY,
LLC

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STIP. TO EXTEND PLEADING AMENDMENT DEADLINE & MODIFY SCHEDULING ORDER & [PROPOSED] ORDER THEREON

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III.

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[PROPOSED] ORDER

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Though counsel explain why an amended complaint should be filed, the extent of the

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changes to the amended complaint, and why the deadline for doing so should be amended, they do

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not explain why the plaintiff needs until March 12, 2021 to file the amended complaint. Thus, the

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Court ORDERS:

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The stipulation to allow the plaintiff to file an amended complaint is GRANTED.

The amended complaint SHALL be filed, if at all, no later than January 29, 2021.

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IT IS SO ORDERED.
Dated:

January 8, 2021

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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CLUTZ/17658360.2/102143.0001

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STIP. TO EXTEND PLEADING AMENDMENT DEADLINE & MODIFY SCHEDULING ORDER & [PROPOSED] ORDER THEREON