Hancock Sandblast & Paint LLC v. Drax, Inc. et al

Filing 50

ORDER Granting 49 Stipulation to Stay the Proceeding Pending Arbitration and to Refer all Issues to Arbitration. The Clerk of Court is directed to STAY (and administratively close) THIS CASE pending arbitration. Signed by Judge Jennifer A. Dorsey on 10/11/17. (Copies have been distributed pursuant to the NEF - ADR)

Case 2:16-cv-01326-JAD-CWH Document 49 Filed 10/11/17 Page 1 of 5

1
2
3
4
5
6

JAMES E. SMYTH, II, ESQ.
Nevada Bar No.: 6506
TARA C. ZIMMERMAN, ESQ.
Nevada Bar No.: 12146
KAEMPFER CROWELL
1980 Festival Plaza Drive, Suite 650
Las Vegas, Nevada 89135
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Drax, Inc.

7

UNITED STATES DISTRICT COURT

8
9
10
11
12
13
14
15
16

DISTRICT OF NEVADA
UNITED STATES OF AMERICA for the use
and benefit of HANCOCK SANDBLAST &
PAINT LLC, an Oregon limited liability
company,
Plaintiff,
vs.
DRAX, INC., a corporation; and TRAVELERS
CASUALTY AND SURETY COMPANY OF
AMERICA, a corporation,

19
20
21

24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

ECF No. 49

Cross-Claimant,
vs.
TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA, a corporation
Cross-Defendant.
______________________________________
DRAX, INC., a corporation;

22
23

STIPULATION AND ORDER TO STAY
THE PROCEEDING PENDING
ARBITRATION AND TO REFER ALL
ISSUES TO ARBITRATION

Defendants.
______________________________________
DRAX, INC., a corporation;

17
18

Case No. 2:16-cv-01326-JAD-CWH

Third-Party Plaintiff,
vs.
ANDERSON BURTON CONSTRUCTION,

2041215_2 17859.1

Page 1 of 5

Case 2:16-cv-01326-JAD-CWH Document 49 Filed 10/11/17 Page 2 of 5

1

INC.,
Third-Party Defendant.

2
3

ANDERSON BURTON CONSTRUCTION,
INC.,

4
Third Party Counterclaimant,
5
6
7

vs.
DRAX, INC., a corporation;
Third-Party Counterdefendant.

8
9

STIPULATION AND ORDER TO STAY THE PROCEEDING PENDING
ARBITRATION AND TO REFER ALL ISSUES TO ARBITRATION

10

WHEREAS, on June 14, 2016, Hancock Sandblast & Paint, LLC (“Hancock”)

11

commenced this action by filing its Complaint against Drax, Inc. (“Drax”) and Travelers

12

Casualty and Surety Company of American (“Travelers”) alleging causes of action for action on

13

Miller Act payment bond against Travelers, and for breach of contract and unjust enrichment

14

against Drax. On August 9, 2016, Travelers filed its Answer to Hancock’s Complaint. On

15

August 17, 2016, Drax filed its First Amended Answer to Hancock’s Complaint, as well as its

16

Cross-Claim against Travelers and Third-Party Complaint against Anderson Burton

17

Construction, Inc. (“ABC” and collectively with Hancock, Drax, and Travelers, the “Parties”),

18

alleging claims under the Miller Act on the payment bond against Travelers, equitable

19

indemnity and contribution against both Travelers and ABC and claims against ABC for breach

20

of contract, breach of implied covenant of good faith and fair dealing, and unjust enrichment.

21

Upon review of the Court’s docket, Travelers failed to answer or otherwise respond to Drax’s

22

Cross-Claim. ABC filed its Answer to Third-Party Complaint on September 12, 2016, and that

23

same day filed its Cross-Claim against Drax, including claims for express contractual indemnity

24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

2041215_2 17859.1

Page 2 of 5

Case 2:16-cv-01326-JAD-CWH Document 49 Filed 10/11/17 Page 3 of 5

1

and implied contractual indemnity related to claims asserted by Hancock, and breach of written

2

contract. Drax filed its Answer to ABC’s Cross-Claim on October 5, 2016;

3

WHEREAS, the Parties agreed to submit this case to mediation, and on May 23, 2017,

4

the Parties participated in a mediation with Eleissa C. Lavelle, Esq., mediator and arbitrator with

5

JAMS. No settlement was reached on the date of the mediation, but the Parties, with the

6

assistance of the mediator, continued to engage in settlement negotiations following the

7

completion of the formal mediation, and were subsequently able to reach final resolution and

8

settlement of Hancock’s claims against Drax and Travelers;

9

WHEREAS, on August 28, 2017, this Court issued an Order [ECF No. 48] on the Parties’

10

Stipulation for Dismissal of Plaintiff’s Claims Only [ECF No. 47]. As a result of this Order,

11

Hancock’s claims against Drax and Travelers were dismissed with prejudice. The Order for

12

Dismissal did not affect any claims, cross claims, counterclaims or defenses by or among Drax,

13

ABC, and Travelers (the “Remaining Parties”), including the claims by and against the

14

Remaining Parties with respect to indemnity and/or contribution as to Hancock’s claims against

15

Drax and Travelers;

16
17
18
19
20
21

WHEREAS, the claims, cross claims, counterclaims and defenses asserted by and among
the Remaining Parties remain unresolved;
WHEREAS, the Subcontract entered into between Drax and ABC on November 4, 2014,
contemplates submission of claims to binding arbitration;
WHEREAS, the Remaining Parties have agreed that all claims, cross claims,
counterclaims and defenses shall be submitted to binding arbitration;

22

NOW THEREFORE, it is hereby STIPULATED AND AGREED by and among the

23

Remaining Parties, through their respective counsel, to stay the proceedings in this action and to

24

refer to arbitration to be held at JAMS in Las Vegas, Nevada with a mutually agreeable single

KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

2041215_2 17859.1

Page 3 of 5

Case 2:16-cv-01326-JAD-CWH Document 49 Filed 10/11/17 Page 4 of 5

1

arbitrator other than the mediator, Eleissa C. Lavelle, Esq., all claims, cross claims,

2

counterclaims and/or defenses of Drax, ABC, and/or Travelers that were or could have been

3

raised in this action.

4

IT IS FURTHER STIPULATED AND AGREED that all pretrial deadlines set forth in

5

the Stipulated Discovery Plan and Scheduling Order [ECF No. 18] filed on September 2, 2016,

6

as amended by the Order Granting Fourth Stipulation to Extend Discovery Deadlines [ECF No.

7

46] filed on July 14, 2017, be vacated, and the entire case be stayed pending arbitration, with this

8

Court retaining jurisdiction over this matter, to address any post-arbitration issues, including

9

confirmation of any arbitration award.

10
11
12
13
14

KAEMPFER CROWELL
By: /s/ James E. Smyth
__________
James E. Smyth, Bar No. 6506
Tara C. Zimmerman, Bar No. 12146
1980 Festival Plaza Drive, Suite 650
Las Vegas, NV 89135
Attorneys for Drax, Inc.

15
16
17

ATKINSON, ANDELSON, LOYA, RUUD &
ROMO
By:

/s/ Anthony P. Niccoli_____________
Anthony P. Niccoli
12800 Center Court Dr., Suite300
Cerritos, CA 90703

LAW OFFICES OF DIETRICH &
SALAMONE, PLLC
Jay G. Trinnaman, Bar No. 9287
10161 Park Run Dr., Suite 150
Las Vegas, NV 89145
Attorneys for Travelers Casualty and Surety
Company of America and Anderson Burton
Construction, Inc.

18
19
20
21

ORDER
IT IS SO ORDERED. The Clerk of Court is directed to STAY (and administratively
close) THIS CASE pending arbitration.

22

____________________________________
________________
_ ___ _ _ _
UNITED STATES DISTRICT JUDGE
TATES DISTRICT
AT
ATES
TR C
10-11-17
DATED: ___________________________

23
24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

2041215_2 17859.1

Page 4 of 5