WEH Magic Valley Holdings v. EIH Parent et al
ORDER denying 172 Motion to Vacate. Signed by Judge Sam E Haddon on 12/1/2017. (HEG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
DEC Oi 2017
Clerk, U.S. District Court
District Of Montana
WEH Magic Valley Holdings, LLC, a
limited liability corporation,
EIH Parent, LLC, a limited liability
company and James Carkulis, an
At hearing on January 18, 2017, the parties were directed to: "(l) brief
certain specific issues outlined by the Court [on January 18, 2017]; (2) stipulate to
the content and file the complete text of the Purchase and Sale Agreement ("PSA")
[of August 1, 2014]; and (3) for the Court to be notified if the parties did not fully
agree upon the content of the PSA to be filed." 1
Doc. 132 at 2.
"Additional motions filed after the January 18, 2017, hearing were: (1)
Plaintiffs Notice of Dispute Re: Full Contents of Contract and Motion for Judicial
Determination;2 and (2) Plaintiffs Motion in Limine to Exclude Expert Testimony
of James Carkulis,"3 both of which were filed by Kimberly Beatty, Esq. "Three
briefs directed to related issues were also filed," 4 two of which were submitted by
Ms. Beatty. 5
On June 7, 2017, the Court issued its Memorandum which addressed in
detail: 1) the contentions of the parties; 2) the parties' written contract of August
1, 2014; and 3) the unresolved "Data Room" issue. 6 After the June 7, 2017,
Memorandum was entered, the Court vacated an existing pretrial order deadline
and established a briefing scheduling for any remaining claims, which included
allowing each party the option to refile motions for summary judgment. On
Doc. 120, Plaintiffs Opening Brief in Response to Court's Identification of Additional
Issues and Request for Briefing; Doc. 123, Defendants' Response to Plaintiffs Opening Brief
Regarding Additional Issues; Doc. 128, Plaintiffs Brief in Response to Court's Requests
Regarding Principle Issues.
Doc. 132 at 3. Since the January 18, 2017, hearing, Beatty has authored and filed 28
separate filings. Benak has filed none.
September 22, 2017, Defendants filed a renewed motion for summary judgment7
on Counts II through V of the Second Amended Complaint. 8
By Order of November 29, 2017, the Court set hearing for December 5,
2017, at 1:00 p.m. on:
(1) Defendants' Renewed Motion for Summary Judgment on Counts II
through V of Plaintiffs Second Amended Complaint [Opposed];9 (2)
unresolved issues in Count I (Breach of Contract Against EIH and
Carkulis); (3) waiver or limitation on claims for recovery of consequential
damages under Section 9.12 of the Purchase and Sale Agreement; (4) a
proposed schedule for the preparation and submission of a final pretrial
order prepared in compliance with Fed. R. Civ. P. 26(a)(3)(A) and L.R. 16.4
and the Orders of this Court; (5) time reasonably required and to be
requested by counsel to prepare and submit the final pretrial order; (6) time
reasonably required and to be requested by counsel and allowed by the
Court to address and decide issues that may remain for pretrial resolution
after the proposed pretrial order is filed; and (7) to consider any such and
further pretrial issues as may be presented to the Court. 10
On November 30, 2017, Ms. Beatty filed an Unopposed Motion and Briefin
Support to Vacate and Reset Status Conference 11 that requested on behalf of pro
hac vice James D. Benak, Esq. that the hearing scheduled for December 5, 2017,
Counts II, III, and V are against Carkulis only, Count IV (negligent misrepresentation) is
asserted against EIH and Carkulis.
Doc. 171 at 1-2.p
Mr. Benak has appeared, with leave of Court, as pro hac vice in this case.
The Court's Order admitting Mr. Benak recites, inter alia:
Mr. Benak must do his own work. He must do his own
writing, sign his own pleadings, motions, briefs and
other documents served or filed by him, and, if
designated co-lead counsel, must appear and participate
personally in all proceedings before the Court. 12
As noted, the current motion for continuance was not filed by Mr. Benak but by
The Court is satisfied that Ms. Beatty is capable of representing WEH's
interests before this Court and will do so. If Mr. Benak is unable to attend the
hearing set for December 5, 2017, his presence at the hearing in this instance will
The hearing set for December 5, 2017, will proceed as scheduled.
The Unopposed Motion to Vacate and Reset Status Conference 13 is
Doc. 7 at 2.
/ ::--aay of December, 2017.
United States District Judge
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