Long et al v. Cordain et al

Filing 110

ORDER. 105 Motion to Stay is Granted as indicated in the attached Order. Motions 22 , 62 , and 74 are DENIED as MOOT as to any dismissed state law claims and DENIED without prejudice with leave to refile as to any remaining claims as indicted in the attached Order. Motions 31 and 70 are DENIED without prejudice as indicated in the attached Order. 109 Motion for Leave is DENIED as MOOT. The trial preparation conference set for 1/7/2016 and the jury trial set to begin 2/1/2016 are hereby VACATED. The parties shall file a status report within ten (10) days of the resolution of the State Court Action. By Judge Raymond P. Moore on 08/28/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 13-cv-03475-RM-NYW
WILEY LONG and
PALEO DIET ENTERPRISES, LLC, a Colorado Limited Liability Company,
Plaintiffs,
v.
LOREN CORDAIN, and
THE PALEO DIET, LLC, a Colorado Limited Liability Company,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This case arises from disputes relating to the “Paleo Diet.” Plaintiff Wiley Long and
Defendant Loren Cordain were allegedly the 45% and 55% owners, respectively, of Plaintiff Paleo
Diet Enterprises, LLC (the “Company”) (Long and the Company, collectively “Plaintiffs”). The
Company, in turn, allegedly owned, among other things, certain trademarks, logos, and copyrights
related to the Paleo Diet. Plaintiffs allege Cordain wrongfully dissolved the Company and
transferred its assets to The Paleo Diet, LLC (the “TPD”), formed by Cordain upon the dissolution
of the Company. Plaintiffs have brought federal and state law claims, invoking this Court’s
subject matter jurisdiction pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338(a), 1338(b),
and 1367. There is, however, a concurrent case pending before the District Court, Larimer
County, Colorado (the “State Court Action”) which arises from the same facts and circumstances
as that before this Court. The parties agree that some form of “abstention” is appropriate, but

disagree as to the appropriate form and scope. The issue now before the Court is whether this
action should be stayed in whole or in part, or dismissed in whole or in part, due to the pendency of
the prior filed State Court Action between the parties arising from the same disputes.
Plaintiffs have filed a Motion to Stay Action (ECF No. 105) and the parties have briefed
the issue of whether this Court should stay the entire action or decline to exercise supplemental
jurisdiction over the state law claims and decide certain pending motions addressed to the federal
claims. Upon consideration of the Motion to Stay and related briefs, the parties’ supplemental
jurisdiction briefs, the Court file, relevant portions of the State Court Action, the applicable law
and statutes, and being otherwise fully advised, the Court: (1) declines to exercise supplemental
jurisdiction over the state law claims; and (2) stays the entire remaining action pending resolution
of the State Court Action.
I.

BACKGROUND
In March 2011, Long, individually and derivatively on behalf of the Company, filed the

State Court Action against Cordain, the Company, and TPD (collectively, the “State Court
Defendants”) alleging four state law claims. (ECF Nos. 105-1, 105-2.) Those claims are for: (i)
Breach of Contractual and Legal Duties – against Cordain; (ii) Demand for Accounting – against
Cordain and the Company; (iii) Derivative Claim on behalf of the Company for Breach of
Fiduciary Duty and Other Legal Duties – against Cordain and TPD; and (iv) Civil Theft – against
Cordain and TPD. (ECF No. 105-1, 105-2.)
Upon motion filed by the State Court Defendants, the Larimer County District Court
dismissed the State Court Action for lack of subject matter jurisdiction, which Long appealed.
2

According to the Colorado Court of Appeals’ decision in Long v. Cordain, 343 P.3d 1061 (Colo.
App. 2014), in the State Court Action, State Court Defendants argued that Long’s state law claims
arose under the federal copyright law, over which federal courts have exclusive jurisdiction. The
Larimer County District Court agreed and dismissed Long’s claims for lack of subject matter
jurisdiction.
Meanwhile, on December 23, 2013, Plaintiffs filed the action before this Court, alleging
nine state law and federal claims. (ECF No. 20.) In addition to three of the four claims1 already
pending in the State Court Action, Plaintiffs brought claims for: copyright infringement under the
Copyright Act (against Cordain and TPD); unfair competition (against Cordain and TPD);
trademark/tradename/false designation of origin (against Cordain and TPD); trademark
infringement and false/fraudulent registration (against Cordain and TPD); breach of contractual
and legal duties (against Cordain); demand for accounting (against Cordain); derivative claim on
behalf of the Company – breach of legal duties (against Cordain and TPD); violation of the
Colorado Consumer Protection Act (against Cordain and TPD); and fraudulent representation
and/or inducement to enter into an operating agreement (against Cordain).
Plaintiffs acknowledge that the State Court Action and the case before this Court arise out
of the same set of facts and circumstances.2 From the papers, it appears that at the heart of the
parties’ dispute is what Cordain contributed or transferred to the Company and, accordingly,
whether Cordain allegedly improperly transferred or otherwise utilized Company assets or rights.
1

Plaintiffs state they did not assert the civil theft claim before this Court as the statute of limitations had run. (ECF
No. 105, page 2.)
2
In the State Court Action, Long is suing the Company, but in the action before this Court, Long and the Company are
Plaintiffs. The parties do not argue that the alignment of the parties makes any difference in the analysis of the issues
for resolution before the Court; therefore, the Court will assume, without deciding, that it does not.
3

Under an operating agreement for the Company, Cordain allegedly contributed to the Company
“an exclusive license” and a “non-exclusive worldwide license” relating to the Paleo Diet.
On December 31, 2014, the Colorado Court of Appeals reversed and reinstated the State
Court Action. Long, however, nonetheless wishes to proceed with both actions, staying this
action pending the resolution of the State Court Action. The parties in the State Court Action
agreed that the Larimer County District Court should rule on pending motions before that case
should proceed. Those motions raised the same or similar issues pending in motions before this
Court. Those State Court Action motions, however, did not address the federal claims addressed
in one or more motions pending before this Court.
On August 18, 2015, the Larimer County District Court issued an order addressing the
pending motions. (ECF No. 108-1.) In that order, the Larimer County District Court issued
rulings on some of the issues raised in the motions pending before this Court, such as whether the
license Cordain contributed to the Company was terminable at will. The State Court did not rule
on one motion as it was not fully briefed, but ordered the briefing be completed.
II.

SUPPLEMENTAL JURISDICTION, CLAIM SPLITTING, AND STAY OF
PROCEEDINGS UNDER COLORADO RIVER
Plaintiffs request the Court to retain supplemental jurisdiction over the state law claims

under 28 U.S.C. § 1367, and then stay this entire action pending the resolution of the State Court
Action. Defendants, on the other hand, request this Court to dismiss the state law claims3 with
prejudice, and then proceed to rule on the pending motions as to the federal claims, staying a trial
3

Defendants assert the claim for unfair competition is a state law claim. (ECF No. 104, page 3.) An examination of
that claim shows it is also brought under the Lanham Act. (ECF No. 20, ¶¶ 105-111.) As such, it is not subject to
dismissal under § 1367(c)(4).
4

of any federal claims which remain after the pending motions are resolved. After careful
consideration of the facts and circumstances of this case, the Court declines to exercise
supplemental jurisdiction over the state law claims and those claims are dismissed without
prejudice. Further, the Court determines that a stay of the remaining federal claims is appropriate.
A. Supplemental Jurisdiction
In this case, Plaintiffs have asserted four federal claims.4 In addition, Plaintiffs have
brought five state law claims, three of which are also pending in the State Court Action. Plaintiffs
contend this Court should exercise supplemental jurisdiction over all of such state law claims,
raising a myriad of reasons, including: (1) the statute of limitations on all or essentially all of
Plaintiffs’ state law claims will have run if they are dismissed; (2) several of the state law claims
are not being litigated in the State Court Action and, therefore, having them heard before this Court
“conserves judicial energy and avoids litigation of these claims in more than one court” (ECF No.
106, page 7); (3) litigation on one claim may or will decide an issue dispositive of federal and state
law claims, and it would be convenient to have the parties litigate such facts in one court; (4)
litigation in one court would provide fairness to the parties and witnesses, and avoid multiple
trials; (5) Defendants are likely to seek dismissal of Plaintiffs’ claims again in the State Court
Action and if that occurs, Plaintiffs will be deprived of their right to seek redress for their claims if
this Court declines to exercise supplemental jurisdiction; and (6) dismissal now would be

4

By “federal claims,” the Court is referring to the claims based on the Copyright Act (First Claim), Unfair
Competition (Second Claim), Trademark/Trade Name Dilution/Unfair Competition (Third Claim), and Trademark
Infringement and False/Fraudulent Registration (Fourth Claim). The Court recognizes the Second and Third Claims
allege they are brought under the Lanham Act and common law, but those theories are intertwined and should be
determined together.
5

inconvenient and would burden the parties as they have conducted discovery and filed motions on
the state and federal claims.
Defendants do not dispute that the Court has supplemental jurisdiction over Plaintiffs’ state
law claims. They contend dismissal of state law claims is nonetheless appropriate, arguing,
generally: (1) Plaintiffs have decided to proceed with their duplicative state law claims in the State
Court Action, so there is no purpose to staying these claims as the resolution of such claims in the
State Court will be binding on Plaintiffs; (2) allowing Plaintiffs to stay this action allows them to
improperly “wait-and-see” which jurisdiction seems the most favorable to them, causes delay and
wastes judicial resources; (3) Plaintiffs could have brought the state law claims filed in this Court
in the State Court Action; (4) the state law claims should be heard in one forum; and (5) res
judicata would apply after the litigation of the state law claims in the State Court Action.
The Court finds merit in Defendants’ arguments, and is not persuaded by Plaintiffs’
arguments. On the contrary, the Court finds some of Plaintiffs’ arguments support the declination
of the exercise of supplemental jurisdiction.
Pursuant to 28 U.S.C. § 1637(a), “in any civil action of which the district courts have
original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims
that are so related to claims in the action within such original jurisdiction that they form part of the
same case or controversy under Article III of the United States Constitution.” The district courts
may decline to exercise supplemental jurisdiction over state law claims, however, if:

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(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction,
or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
28 U.S.C. § 1367(c).
“It is well-settled” that supplemental jurisdiction “is a doctrine of discretion, not of
plaintiff’s right.” Gullickson v. Southwest Airlines Pilots’ Ass’n, 87 F.3d 1176, 1187 (10th Cir.
1996) (quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966)) (internal
quotation marks omitted). And, under the express provisions of § 1367(c)(4), the Court may
decline to exercise that discretion under “exceptional circumstances.” After consideration of
several factors, the Court concludes that exceptional circumstances exist to support the declination
of the exercise of supplemental jurisdiction in this case. Accordingly, the Court finds the
supplemental jurisdiction should be declined.
First, Long is proceeding with his State Court Action, after it was reinstated by the
Colorado Court of Appeals, and has just received a ruling from the Larimer County District Court
on various motions concerning the merits of his state law claims. Plaintiffs have additional state
law claims pending before this Court which were not pled in the State Court Action, but there is no
contention that those additional claims could not have been filed in that action in the first instance.5
Plaintiffs’ argument that, should this Court dismiss the state law claims, the statute of limitations is
or may be a bar to raising such claims before the Larimer County District Court is unavailing as 28

5

By this statement, the Court is not indicating one way or the other the viability of such claims.
7

U.S.C. § 1367(d) tolls the statute of limitations while the dismissed claim is pending before this
Court and for a period of 30 days after its dismissal, unless state law provides for a longer tolling
period. Jinks v. Richland County, 538 U.S. 456, 459 (2003); Estate of Harshman v. Jackson Hole
Mountain Resort Corp., 379 F.3d 1161, 1168 n.4 (10th Cir. 2004).
Second, Plaintiffs assert they must have a federal forum in which to litigate their claims in
the event their State Court Action is dismissed again. As Defendants implicitly argue, this
“wait-and-see” approach appears to be nothing more than improper forum shopping as to the state
law claims.6 Further, Plaintiffs fail to articulate why they should be allowed to relitigate state law
claims after they have already been decided in the State Court Action, or litigate claims which
could have been brought in the State Court Action but were not. In other words, why issue or
claim preclusion would not bar litigation – or relitigation – of state law claims. Moreover, the
dismissal of the state law claims would still leave this federal forum available for Plaintiffs to
litigate the federal claims.
Finally, allowing the state law claims, along with the federal claims, to go forward before
this Court concurrently would waste judicial resources, require the parties to litigate the same set
of operative facts in two different forums concurrently, and may result in inconsistent or
conflicting results. If this case is stayed, however, these results may be obviated. Nonetheless,
that begs the question of, once any stay is lifted upon the resolution of the State Court Action, why
Plaintiffs should thereafter be allowed to proceed before this Court with state law claims that have
been brought and claims which could have been brought in the State Court Action. The Court
6

The Court recognizes that federal courts have exclusive jurisdiction over claims under the Lanham Act and
Copyright Act. 28 U.S.C. § 1338 (“No State court shall have jurisdiction over any claim for relief arising under any
Act of Congress relating to patents, plant variety protection, or copyrights.”).
8

finds Plaintiffs should not. Instead, under the facts and circumstances of this case, one forum
should hear all the state law claims.
In addition to the existence of exceptional circumstances, the Supreme Court and the Tenth
Circuit have stated that “the justification for the exercise of supplemental jurisdiction: lies in
considerations of judicial economy, convenience, and fairness to litigants; if these are not present a
federal court should hesitate to exercise jurisdiction over state claims even though bound to apply
state law to them.” Gullickson, 87 F.3d at 1187 (quoting Gibbs, 383 U.S. at 726). As indicated
above, the interests of judicial economy would not be served by retaining jurisdiction over the state
law claims. There have already been rulings in the State Court Action on issues pending before
this Court. Judicial economy favors resolving all state law claims in one forum. As for
convenience and fairness to the litigants, Plaintiffs contend dismissal7 of the state law claims now
would burden the parties, as discovery has been completed and motions have been filed.
Plaintiffs’ contention cannot withstand scrutiny where there is no contention that discovery
conducted in this case may not be used in the State Court Action. Indeed, the Larimer County
District Court relied, in part, on discovery conducted before this Court in determining to deny
Long’s request for additional time to conduct discovery before completing briefing on a pending
motion. Moreover, as stated, some of the issues in the motions pending before this Court have
already been decided by the Larimer County District Court in similar motions. Accordingly, the
Court finds considerations of judicial economy, convenience, and fairness to the litigants warrant
the declination of the exercise supplemental jurisdiction in this case as to the state law claims.
7

Defendants argue for dismissal with prejudice, but such a dismissal would be improper. Brereton v. Bountiful City
Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (“[D]ismissal for lack of jurisdiction [should] be entered without
prejudice.”).
9

B. Claim Splitting
Defendants contend the dismissal of Plaintiffs’ state law claims is also appropriate as
Plaintiffs have impermissibly “split” their claim. Plaintiffs contend that where the causes of
actions are filed in separate courts, there can be no impermissible claim-splitting. The Court does
not necessarily read the cases so narrowly. While the two Tenth Circuit decisions arise from
cases which were pending in the same district court, the Tenth Circuit’s holding was not so limited.
Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d 982, 900 (10th Cir. 2002); Katz
v. Gerardi, 655 F.3d 1212, 1217 (10th Cir. 2011). Nonetheless, the United States Supreme Court
in The Haytian Republic, 154 U.S. 118, 123 (1894), upon which Katz and Hartsel Springs Ranch
relied, asked if the doctrine should be applied to “the pendency of suits in district courts of the
United States, sitting in different states,” raising the issue of whether the doctrine may be limited to
pending federal actions, regardless of whether they were in the same district. Regardless, in light
of the Court’s determination that dismissal is warranted under § 1367(c)(4), it need not reach this
issue or whether claim-splitting applies in the context of this case.
C. Stay under Colorado River8
Plaintiffs request a stay of this entire action under Colorado River. Under Colorado
River, circumstances permitting the stay or dismissal “of a federal suit due to the presence of a
concurrent state proceeding for reasons of wise judicial administration are considerably more
limited than the circumstances appropriate for abstention.” Colorado River Water Conservation
Dist. v. United States, 424 U.S. 800, 818 (1976); Moses H. Cone Memorial Hosp. v. Mercury
8

Defendants also rely on Colorado River for their request to dismiss the state law claims. In light of this Court’s
determination that exceptional circumstances exists under 28 U.S.C. § 1367(c)(4) to support the dismissal of the state
law claims, it need not decide whether dismissal would also be appropriate under Colorado River.
10

Constr. Corp., 460 U.S. 1, 15 (1983). “The former circumstances, though exceptional, do
nevertheless exist.” Colorado River, 424 U.S. at 818.
In assessing whether exceptional circumstances exists, the Supreme Court has identified
several nonexclusive factors for the courts to consider in determining whether to decline or defer
exercising jurisdiction, including: (1) whether the state or federal court has assumed jurisdiction
over disputed property; (2) the inconvenience of the federal forum; (3) the desirability of avoiding
piecemeal litigation; (4) the order in which jurisdiction was obtained by the concurrent forums; (5)
the vexatious or reactive nature of either the federal or state litigation; (6) whether federal law
provides the rule of decision on the merits; and (7) the adequacy of the state-court proceedings to
protect the federal plaintiff’s rights. Colorado River, 424 U.S. at 818; Moses, 460 U.S. at 17 n.20,
23, 26; Fox v. Maulding, 16 F.3d 1079, 1082 (10th Cir. 1994). Impermissible forum-shopping by
the party opposing abstention may also be a consideration. See Fox, 16 F.3d at 1082. “[T]he
decision whether to dismiss a federal action because of parallel state-court litigation does not rest
on a mechanical checklist, but on a careful balancing of the important factors as they apply in a
given case, with the balance heavily weighted in favor of the exercise of jurisdiction. The weight
to be given to any one factor may vary greatly from case to case, depending on the particular
setting of the case.” Moses, 460 U.S. at 16. The Court’s “task is to ascertain whether there exist
‘exceptional’ circumstances, the ‘clearest of justifications,’ that can suffice under Colorado River
to justify the surrender of that [federal] jurisdiction.” Moses, 460 U.S. at 25-26.
“When a district court decides to dismiss or stay under Colorado River, it presumably
concludes that the parallel state-court litigation will be an adequate vehicle for the complete and
11

prompt resolution of the issues between the parties. If there is any substantial doubt as to this, it
would be a serious abuse of discretion to grant the stay or dismissal at all. … Thus, the decision to
invoke Colorado River necessarily contemplates that the federal court will have nothing further to
do in resolving any substantive part of the case, whether it stays or dismisses.” Moses, 460 U.S. at
28.
Before examining the nonexclusive factors, “a federal court must first determine whether
the state and federal proceedings are parallel.” Fox, 16 F.3d at 1081; Allen v. Board of Educ.,
Unified School Dist. 436, 68 F.3d 401, 403 (10th Cir. 1995). “‘Suits are parallel if substantially
the same parties litigate substantially the same issues in different forums.’” Fox, 16 F.3d at 1081
(quoting New Beckley Mining Corp. v. International Union, UMWA, 946 F.2d 1072, 1073 (4th Cir.
1991)). Plaintiffs argue the concurrent proceedings are parallel, and Defendants do not argue
otherwise; therefore, the Court will assume, without deciding, that they are.
An examination of the nonexclusive factors shows that a stay is warranted. First, in this
case, the two concurrent actions do not cause the Colorado court or this Court to assume
simultaneous jurisdiction over a single res, as there is no res at issue.9 Thus, this factor is
inapplicable. Next, Plaintiffs contend the federal forum is less convenient as the parties and most
of the witnesses are located in Larimer County. The Court finds this forum may be less
convenient, but only slightly so as Denver, Colorado, is not so far from Larimer County. Thus,
this factor only weighs slightly in favor of a stay. Third, the desirability of avoiding piecemeal
9

Plaintiffs argue that the property at issue is their damages arising from Defendants’ alleged wrongful conduct.
(ECF No. 105, page 4.) However, that is not the type of property considered under the first factor. See D.A.
Osguthorpe Family Partnership v. ASC Utah, Inc., 705 F.3d 1223, 1234 (10th Cir. 2013) (“[T]he first of the Colorado
River factors does not apply to this case. Neither the state nor district court has acquired jurisdiction over property in
the course of this litigation. That is to say, this is not an action in rem or quasi in rem.”).
12

litigation strongly favors a stay. Here, allowing the parties to litigate the state law issues and
claims in the State Court Action while staying the case before this Court will not only avoid
litigating the same issues in both courts, saving time, expense and judicial resources, but also avoid
the potential of having contradictory or inconsistent factual findings.
Fourth, as for the order in which jurisdiction was obtained, the State Court Action was filed
first, although Plaintiffs’ claims were dismissed and not reinstated until December 2014. Priority
of the actions, however, “should not be measured exclusively by which complaint was filed first,
but rather in terms of how much progress has been made in the two actions.” Moses , 460 U.S. at
21. Here, the papers show the State Court Action has proceeded substantially, with substantive,
dispositive motions filed before the State Court for which the parties have received a ruling on
some of the very same issues pending for resolution before this Court. There are, however, other
issues pending in the motions before this Court and a trial date has been set. Nonetheless, the trial
date was recently set with the parties’ understanding that a stay or dismissal of all or a part of this
action may be forthcoming. Furthermore, the exclusively federal issues are interspersed with –
and may be impacted by – state law issues in many of the pending motions. Accordingly, this
factor weighs in favor of a stay.
Fifth, the vexatious or reactive nature of either the federal or state litigation is essentially
neutral. Sixth, federal law provides the rule of decision on the merits of the federal claims and
this would usually weigh heavily against a stay. As Defendants argue, the State Court cannot hear
the federal claims. Nonetheless, this is not a usual case because the determination of some of the
issues on the state law claims appears likely to impact the determination of the federal claims. As
13

for the adequacy of the state-court proceedings to protect the federal plaintiff’s rights, here, Long
chose to file in state court first and it is Long who seeks a stay of this action pending a
determination of the State Court Action. Thus, Plaintiffs believe the state-court proceedings will
adequately protect their rights. In light of the consideration of all these factors, the Court finds
that a stay is appropriate as to the remaining claims.10
D. Stay under String Cheese
In addition to requesting a stay under Colorado River, Plaintiffs request a stay under String
Cheese Incident, LLC v. Stylus Shows, Inc., No. 1:02-cv-01934-LTB-PA, 2006 WL 894955 (D.
Colo. March 30, 2006). Assuming, arguendo, that the String Cheese factors apply to determine
whether a stay is appropriate under the facts and circumstances in this case, the Court finds it need
not address this issue in light of its finding that a stay is appropriate under Colorado River.
III.

CONCLUSION
Based on the foregoing, the Court declines to exercise supplemental jurisdiction over the

state law claims, but will stay this action pending resolution of the State Court Action. However,
the Court is mindful that a change in facts and circumstances may show good cause for the lifting,
or modification, of this stay and the parties are not precluded from seeking relief from this Court
upon such a showing. It is therefore ORDERED
(1) That the following state law claims are dismissed without prejudice: (i) Breach of
Contractual and Legal Duties (Fifth Claim for Relief); (ii) Demand for Accounting
(Sixth Claim for Relief); (iii) Derivative Claim on Behalf of Company – Breach of
10

Assuming this factor is relevant as Plaintiffs are not opposing abstention, the Court does not find impermissible
forum shopping as to the federal claims because they could not have been brought in the State Court Action.
14

Legal Duties (Seventh Claim for Relief); (iv) Violation of the Colorado Consumer
Protection Act (Eighth Claim for Relief); and (v) Fraudulent Representation and/or
Inducement to Enter into Agreement (Ninth Claim for Relief);
(2) That Plaintiffs’ Motion to Stay (ECF No. 105) is GRANTED as to the remaining
claims pending the resolution of the State Court Action;
(3) That Plaintiffs’ Motion for Partial Summary Judgment on Liability (ECF No. 71) is
DENIED as MOOT;
(4) That Defendants’ Motions (ECF Nos. 22, 62, 74) are DENIED as MOOT as to any
dismissed state law claims and DENIED without prejudice with leave to refile as to any
remaining claims, as appropriate in light of what issues remain, upon the lifting of the
stay of this matter;
(5) That Plaintiffs’ Motion to Strike Defendants’ Expert Disclosure or, in the Alternative,
Motion for an Extension of Time (ECF No. 31) is DENIED without prejudice, with
leave to refile as appropriate in light of what issues remain upon the lifting of the stay
of this matter;
(6) That Defendants’ Motion to Strike Expert Testimony of Plaintiffs’ Damages Expert
Witness Pursuant to Fed. R. Evid. 702 (ECF No. 70) is DENIED without prejudice,
with leave to refile as appropriate in light of what issues remain upon the lifting of the
stay of this matter;
(7) That Defendants’ Motion to File Sur-reply to Plaintiffs’ Reply on Motion to Stay
Action (ECF No. 109) is DENIED as MOOT;
15

(8) That the trial preparation conference set for January 7, 2016 and the jury trial set to
begin February 1, 2016 are hereby VACATED; and
(9) That the parties shall file a status report within ten (10) days of the resolution of the
State Court Action, and advise the Court of the matters and issues which remain
pending for resolution and how the parties wish to proceed in this action, including the
briefing of any motions which the parties wish to file or refile.
DATED this 28th day of August, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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