Summa Resource Holdings LLC v. Carbon Energy Limited

Filing 34

ORDER re: Supplemental Briefing in lieu of April 18, 2016 Hearing. Parties shall submit supplemental briefing addressing the questions in this Order by 4/22/16. Signed by Judge Thelton E. Henderson on 4/18/16. (tehlc1, COURT STAFF) (Filed on 4/18/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SUMMA RESOURCE HOLDINGS
LLC,

Case No. 15-cv-05334-TEH

Plaintiff,
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v.
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CARBON ENERGY LIMITED,

ORDER RE: SUPPLEMENTAL
BRIEFING IN LIEU OF APRIL 18,
2016 HEARING

Defendant.
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This matter is currently set for oral argument on the Motions to Dismiss and Strike

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United States District Court
Northern District of California

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filed by Defendant Carbon Energy Limited. In lieu of oral argument, IT IS HEREBY

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ORDERED that each party shall file a supplemental brief of no more than fifteen pages by

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April 22, 2016, addressing the following questions:

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For Both Parties:

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1.

Plaintiff prevails? Why or why not?

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Will Plaintiff be able to collect judgment if the case proceeds in Queensland and

2.

Why does Plaintiff’s choice of remedy inform whether Plaintiff has adequately

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alleged a breach of contract claim? See Mot. at 11 (Docket No. 16); Opp’n at 4

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(Docket No. 17). Answer under Queensland law.

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For Plaintiff:

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3.

Do you dispute Defendant’s contention that Australia is an adequate alternative

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forum? If so, is the dispute only on the basis of Defendant’s refusal to waive statute

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of limitations defenses?

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4.

Please address Defendant’s arguments that (1) the statute of limitations has not yet

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expired on the majority of Plaintiff’s claims, and (2) the statute of limitations has

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already expired on the Fourth Cause of Action (Intentional Interference with

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Prospective Economic Advantage). See Carbon Supp. Brief at 9 (Docket No. 26).

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5.

Please address Defendant’s argument that the Foreign Judgments Act of 1991 does

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not explicitly allow United States courts’ judgments to be registered for

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enforcement in Australia. See Carbon Supp. Response at 12 (Docket No. 31).

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6.

Please address Defendant’s argument that the claims of conversion, breach of

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fiduciary duty and unfair competition are “based on an alleged contractual

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obligation under the Agreement to issue Tranche 4 and 5 shares,” and therefore

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Queensland law should apply to those claims. See Carbon Supp. Brief at 1.

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7.

sale of its securities as ADRs and intended to pursue the Summa projects? In other

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words, why are these mutually exclusive?

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United States District Court
Northern District of California

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Regarding proof of falsity: why isn’t it possible that Carbon wanted to promote the

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Please address Defendant’s argument that Rule 9(b) applies to the breach of
contract claim because the claim “describes fraudulent conduct.” Mot. at 9.

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For Defendant:

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9.

Please address Plaintiff’s contention that Peter Swaddle, Andrew Dash and Jeff

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Nitsch could not necessarily be compelled to testify in Queensland merely because

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they reside “somewhere in Australia.” See Summa Supp. Response at 11 (Docket

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No. 30).

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10.

Please address Plaintiff’s argument that litigating the case in California will not be

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inconvenient for Carbon because Carbon makes multiple trips to the United States

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and has established an office in New York. See Summa Supp. Brief at 11 (Docket

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No. 27).

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11.

On page 6 of Defendant’s Motion to Dismiss, Defendant states:
The Agreement did not require Carbon Energy to explain or
justify any decision to provide or not provide notice of
Achievement of a Milestone under clause 8.1, or to explain or
justify its Best Endeavours under clauses 8.4 or 8.6. The
Agreement did not allow Summa to unilaterally declare or
deem Carbon Energy not to have used Best Endeavours or
otherwise to have failed to meet its obligations under clauses
8.4 or 8.6.
If this statement is true, how would Plaintiff ever be able to allege a breach?
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12.

Does Defendant argue that all Breach of Contract claims that involve intentional

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conduct would be held to the standard under Fed. R. Civ. P. 9(b) as opposed to

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8(a)? In other words, it appears impossible for Defendant to breach an obligation to

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notify Plaintiff of Milestone Events or an obligation to use Best Endeavours without

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engaging in some type of fraudulent conduct.

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Accordingly, the hearing on Defendant’s Motions to Dismiss and Strike is hereby

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VACATED pursuant to Civil Local Rule 7-1(b), and the matter shall be taken under

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submission upon receipt of the parties’ supplemental briefing.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: 04/18/16

_____________________________________
THELTON E. HENDERSON
United States District Judge

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