Max Baer Productions, Ltd, vs Riverwood Partners, LLC

Filing 136

ORDER granting 124 Motion to Dismiss for Lack of Prosecution; striking 129 Motion for Summary Judgment. Signed by Chief Judge Robert C. Jones on 7/9/12. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MAX BAER PRODUCTIONS, LTD.,
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Plaintiff,
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vs.
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RIVERWOOD PARTNERS, LLC,
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Defendant.
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3:09-cv-00512-RCJ-RAM
ORDER

This case arises out of two interdependent failed real estate developments. On September

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20, 2010, the Court granted Defendant’s motion to dismiss, dismissing the Complaint and

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leaving only Defendant’s counterclaims for breach of contract, bad faith, negligent

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misrepresentation, and declaratory judgment. Pending before the Court are Plaintiff’s motion to

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dismiss the counterclaims for lack of prosecution and Defendant’s motion for offensive summary
judgment on those counterclaims. For the reasons given herein, the Court grants the motion to

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dismiss and strikes the motion for summary judgment.
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I.

FACTS AND PROCEDURAL HISTORY

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On or about September 25, 2007, Plaintiff Max Baer Productions, Ltd. (“Max Baer”) and
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Defendant Riverwood Partners, LLC (“Riverwood”) entered into the Real Estate Sales
Agreement (the “Sales Agreement”), under which Plaintiff was to purchase from Defendant

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certain property. (See Am. Compl. ¶ 4; ECF No.6, Ex. 1; id., Ex. 1, Ex. A).1 On or about

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October 16, 2007, the parties entered into a Cost Sharing and Development Agreement (the

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“Development Agreement”), which by its terms was to close concurrently with the Sales

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Agreement, and under which Defendant was to undertake various improvements on its property

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to establish utilities, roadways, and other infrastructure to service the casino and resort to be built
on the property Plaintiff purchased from Defendant under the Sales Agreement and which was
adjacent to Defendant’s property. (See id., Ex. 2, at 1).

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On October 29, 2007, Plaintiff gave Defendant a deed of trust against 15.83 acres of
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property to secure a $500,000 promissory note. (See id., Ex. 3; id., Ex. 3, Ex. A). Plaintiff
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alleges that Defendant has failed to obtain a required $27 million construction loan or to fulfill
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its development obligations under section 4 of the Development Agreement. (See Am. Compl.
¶ 8). Defendant argues that the Development Agreement only requires completion of the

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improvements sixty days before Plaintiff completes its buildings, and Plaintiff has not even

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begun construction on any buildings. Plaintiff alleges that in July of 2008, Defendant returned to

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Plaintiff the deed of trust and corresponding note it had given to Plaintiff. (See Am. Compl. ¶ 9).

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It is not clear whether Plaintiff means to imply that Defendant thereby anticipatorily repudiated

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The Sales Agreement may in fact fail to satisfy the statute of frauds for failure to describe the
land. “To satisfy the statute of frauds the boundaries need only be ‘ascertainable from the
memorandum.’” Wiley v. Cook, 583 P.2d 1076, 1080 (Nev. 1978) (quoting Durham v. Dodd, 285
P.2d 747, 749 (Ariz. 1955)). Exhibit A to Exhibit 1 to the Sales Agreement was to contain a
delineation of the property. Exhibit A, however, simply indicates that the description of the
property is “attached hereto,” yet it is not. (See #6, Ex. 1, Ex. A). Exhibit B to Exhibit 1 to the
Sales Agreement immediately follows Exhibit A, with no description of the land attached in
between. The first page of the Sales Agreement gives the only description of the property in the
attached documents, describing it as approximately 21.42 acres in Douglas County, Nevada, on
the east side of a proposed road called Riverwood Drive. (See id., Ex 1, at 1). The reader is
directed to see Exhibit A to Exhibit 1 to the Sales Agreement for a better description. This
description is insufficient to convey real property. A searcher in the public records would not
possibly be on notice of what parcel of land in Douglas County was intended to be conveyed by
such a description. It is possible that Defendant has simply failed to attach Exhibit A to Exhibit
1 to the Sales Agreement, but the evidence in the record currently indicates a Sales Agreement
that does not satisfy the statute of frauds.
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the contract by returning the note and deed of trust before they were satisfied or rather that

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Plaintiff had satisfied the note and Defendant therefore returned the note and the deed of trust.

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However, Plaintiff alleges that Defendant then requested a cash deposit or a letter of credit in

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lieu of the promissory note, in order to assist Defendant in obtaining a construction loan. (See id.

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¶ 10). On or about October 29, 2008, Defendant admitted it did not have the financing required
to proceed under the Development Agreement. (Id. ¶ 11).

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Plaintiff sued Defendant in this Court on four causes of action. The Court dismissed the

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complaint for failure to state a claim. Defendant’s counterclaims for breach of contract, bad
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faith, negligent misrepresentation, and declaratory judgment remain. Plaintiff has moved to
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dismiss the counterclaims for lack of prosecution, and in response Defendant has moved for
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offensive summary judgment on the counterclaims.
II.

LEGAL STANDARDS
A defendant may move to dismiss an action “[i]f the plaintiff fails to prosecute or to

comply with these rules or a court order.” Fed. R. Civ. P. 41(b).
In determining whether to dismiss a claim for failure to prosecute or failure to
comply with a court order, the Court must weigh the following factors: (1) the
public’s interest in expeditious resolution of litigation; (2) the court’s need to manage
its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of
less drastic alternatives; and (5) the public policy favoring disposition of cases on
their merits.

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Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). The first factor always favors
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dismissal, id. (citing Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and the fifth
factor always weighs against dismissal, id. at 643 (citing Hernandez v. City of El Monte, 138

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F.3d 393, 399 (9th Cir. 1988)). Under the second factor, a trial judge has discretion to determine

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the effect of delay in a particular case on docket management. Id. at 643 (citing Yourish, 191

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F.3d at 990). A defendant bears the burden of establishing under the third factor that the
Plaintiff's actions “impaired the defendant’s ability to proceed to trial or threatened to interfere
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with the rightful decision of the case.” Id. (citing Malone v. U.S. Postal Serv., 833 F.2d 128, 131

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(9th Cir. 1987)). Pendency of a lawsuit is insufficient without more. Id. Unreasonable delays

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need not be tolerated, however, and the reason for a delay is relevant to whether it is reasonable.

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Id. at 642–43 (citing Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). Under the fourth factor,

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a court should consider whether public policy strongly favors resolving the particular dispute on
the merits, whether dismissal would severely penalize a plaintiff for an attorney’s own conduct,
and whether any bad conduct by the party is willful, in bad faith, or otherwise interferes with the

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correct decision of the case. Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1132 (9th
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Cir. 2008).
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III.

Defendant, a business organization that cannot appear in pro se, was without counsel

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ANALYSIS

from February 2011 to December 2011. However, Defendant engaged new counsel in December

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2011, and the pleadings indicate that counsel has been in contact with counsel for Plaintiff since

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associating. Still, Plaintiff notes that Defendant failed to file a proposed joint pretrial order by

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December 31, 2010, as was required under the extension to the Scheduling Order. (See Order,

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Apr. 21, 2010, ECF No. 87).

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Moreover, at oral argument, Plaintiff noted that it had that morning filed a quiet title

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action in state court in Douglas County to resolve the remaining disputes over certain easements.

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This Court’s docket is very full, and the state court can resolve the remaining quiet title issues.

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Defendant will not have been prejudiced by the loss of any remedies by the dismissal of the

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counterclaims in the present case. The Court will leave it to the state District Court in Douglas

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County to sort out the remaining quiet title issues as to the disputed parcels or easements over
them.

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Finally, dispositive motions were due by November 30, 2010 by extension, (see id.), so
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the Court will strike the motion for summary judgment.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss for Lack of Prosecution (ECF
No. 124) is GRANTED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment (ECF No. 129) is
STRICKEN.

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IT IS SO ORDERED.
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DATED: This 25th of of June, 2012.
Dated this 9th daydayJuly, 2012.
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_________________________________________
ROBERT C. JONES
United States District Judge

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