Bullion Monarch Mining, Inc. v. Barrick Goldstrike Mines, Inc. (Sub File of 3:08-cv-227-ECR-VPC)

Filing 252

ORDER denying ECF No. 229 Motion for Leave to File Motion for Summary Judgment Based on Finding of Ambiguity and Stay Deadline for Submission of Pretrial Order; granting ECF No. 234 Motion to Seal and Leave to Redact opposition/response to Barrick's Motion. Signed by Judge Miranda M. Du on 07/05/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BULLION MONARCH MINING, INC.,

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Plaintiff,

Case No. 3:09-cv-00612-MMD-WGC
ORDER

v.
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BARRICK GOLDSTRIKE MINES INC.,
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Defendant.
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I.

SUMMARY

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Before the Court is Barrick Goldstrike Mines Inc.’s (“Goldstrike”) Motion for Leave

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to File Motion for Summary Judgment Based on Finding of Ambiguity and Stay Deadline

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for Submission of Pretrial Order (“Barrick’s Motion”) (ECF No. 229) and Bullion Monarch

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Mining, Inc.’s (“Bullion”) Motion to Seal and Leave to Redact its opposition/response to

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Barrick’s Motion (“Bullion’s Motion) (ECF No. 234). The Court has reviewed Bullion’s

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response to Barrick’s Motion (ECF No. 233), Barrick’s non-opposition to Bullion’s Motion

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(ECF No. 238), and Barrick’s reply in support of their Motion (ECF No. 241).
For the reasons discussed below, Barrick’s Motion is denied and Bullion’s Motion

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is granted.

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II.

BACKGROUND

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This case concerns whether Barrick owes Bullion mineral royalty payments

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pursuant to an area-of-interest provision contained in a 1979 agreement. The Court’s

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previous order provides a more detailed summary of the facts. (See ECF No. 224 at 2-5.)

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The deadline for dispositive motions in this case was originally set for August 13,

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2010. (ECF No. 32.) After the Ninth Circuit’s opinion remanding and reversing this Court’s

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prior judgment was issued on April 24, 2015 (ECF No. 134), this Court allowed for

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renewed summary judgment motions to be filed no later than September 22, 2015. (ECF

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No. 151.)

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On September 30, 2016, this Court issued its Order on the parties’ cross-motions

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for summary judgment. (ECF No. 224.) The Court denied the parties’ motions, finding in

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part that “Paragraph 11 of the 1979 Agreement is ambiguous with respect to the content

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of the royalty obligation” and that “whether the language of the contract as a whole created

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a covenant that ran with the land, a personal covenant, or no covenant at all are issues

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that must be deferred to the trier of fact to resolve.” (Id. at 14-15.) Barrick now requests

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that they be permitted to file a motion for summary judgment because the ambiguity

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identified by this Court in the 1979 Agreement “is fatal to Bullion’s claims.” (ECF No. 229

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at 2.) In turn, they also request that “[i]f the motion for leave is granted . . . then the

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deadline for submission of the pretrial order should be stayed, and no trial should be

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scheduled, until [Barrick’s] proposed motion has been fully briefed, argued and decided.”

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(ECF No 229 at 3.)

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III.

BARRICK’S MOTION FOR LEAVE TO FILE (ECF No. 229)

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Pursuant to Federal Rule of Civil Procedure 16, “[a] schedule may be modified only

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for good cause and with the judge’s consent.” Fed R. Civ. P. 16(b)(4). “Rule 16(b)’s ‘good

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cause’ standard primarily considers the diligence of the party seeking the amendment.”

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Where a party

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seeks summary judgment briefing after the deadline for dispositive motions has passed,

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the onus is on the party moving for supplemental briefing to demonstrate diligence. “If

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that party was not diligent, the inquiry should end.” Id.

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Barrick has failed to demonstrate good cause. The Court agrees with Bullion that

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Barrick could have raised the argument that there is no extrinsic evidence available to

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resolve the ambiguity in its prior motion for summary judgment (see ECF No. 234-1 at 32

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4). Moreover, Barrick contends that a trial would be pointless because “no documents

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were produced relevant to the parties’ intent with respect to the ambiguous term, and

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there are no witnesses with the ability to testify on such matters.” (ECF No. 229 at 2.)

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However, in determining the parties’ intent, “the trier of fact must construe the contract as

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a whole, including consideration of the contract’s subject matter and objective, the

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circumstances of its drafting and execution, and the parties’ subsequent conduct.” Ringle

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v. Bruton, 86 P.3d 1032, 1039 (Nev. 2004) (emphasis added). On the prior motions for

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summary judgment, both the admissible evidence presented and the undisputed facts

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agreed upon by the parties described the parties’ and their purported assignees’

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subsequent conduct in relation to the land and the royalty obligation, which the trier of

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fact may use in addition to the other factors identified in Ringle. Thus, even disregarding

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Barrick’s lack of diligence, its motion also lacks merit; an absence of documents or

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witnesses present at the time the contract was negotiated and executed is not the only

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form of extrinsic evidence a jury may consider.

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Therefore, the Court denies Barrick’s request for leave to file a motion for summary

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judgment and denies its request to stay the deadline of submission of the pretrial order

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as moot.

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IV.

BULLION’S MOTION FOR LEAVE TO FILE UNDER SEAL

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Bullion asks that it be permitted to file under seal the unredacted version of its

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opposition to Barrick’s Motion and to redact confidential matter that Bullion cites to in its

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opposition brief. (ECF No. 234 at 1-2.) Specifically, Bullion’s opposition brief cites to their

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response (ECF No. 184) to Barrick’s summary judgment motion (ECF No. 160), both of

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which are sealed.1 The Court agrees that Bullion has demonstrated compelling reason to

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support its request and will grant Bullion’s Motion.

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1Bullion

notes that Barrick’s prior summary judgment motion (ECF No. 160) cites
to a merger agreement (ECF No. 162-31), which Barrick purportedly designated as
confidential. (ECF No. 234 at 2.) However, this merger agreement is not sealed at the
cited electronic filing number (see ECF No. 162-31). The relevant information from the
merger agreement cited by Barrick was initially sealed (ECF No. 52-24) when Barrick filed
its motion for summary judgment (ECF No. 50) prior to the Ninth Circuit’s remand order.
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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of the

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parties’ motions.

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It is therefore ordered that Defendant Barrick’s Motion for Leave to File Motion for

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Summary Judgment Based on Finding of Ambiguity and Stay Deadline for Submission of

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Pretrial Order (ECF No. 229) is denied.

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It is therefore ordered that Plaintiff Bullion’s Motion to Seal and Leave to Redact
its opposition/response to Barrick’s Motion (ECF No. 234) is granted.
DATED THIS 5th day of July 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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