TCA Properties, LLC et al v. FJ Management Inc.

Filing 89

ORDER that the parties' sixth stipulation for an extension of time ECF No. 88 is DENIED; Plaintiffs' Second Renewed Motion for Summary Judgment ECF No. 69 and Defendant's Cross Motion for Summary Judgment ECF No. 75 are DENIED without prejudice; in the event settlement shall not be finalized by 04/06/2017, the parties shall file a joint status report disclosing their settlement progress over the preceding month and any requested further action by the court. Signed by Judge Larry R. Hicks on 03/07/2017. (Copies have been distributed pursuant to the NEF - KW) Modified on 3/7/2017 to add date for status report (KW).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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TCA PROPERTIES, LLC, a Nevada limited
liability company; and GAS PROPERTIES,
LLC, a Nevada limited liability company,

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Case No. 3:14-cv-0267-LRH-WGC

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Plaintiffs,
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ORDER
v.

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FJ MANAGEMENT, INC., a Utah corporation
formerly known as Flying J. Inc.,

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Defendant.
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Before the court is the parties’ sixth stipulation and order extending time. ECF No. 88.

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Also before the court are plaintiffs TCA Properties, LLC (“TCA”) and Gas Properties, LLC’s

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(“Gas”) (collectively “plaintiffs”) second renewed motion for partial summary judgment

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(ECF No. 69) and defendant FJ Management Inc.’s (“FJM”) cross-motion for summary

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judgment (ECF No. 75).
This is a breach of contract action between plaintiffs and FJM arising from a dispute over

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the interpretation and application of a grading and easement contract (“Grading Agreement”).1

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The parties in this suit are the owners of three separate but adjoining parcels of

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undeveloped property running parallel to Interstate 80 (“I-80") on the south side of the interstate

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A copy of the Grading Agreement is attached as Exhibit 2 to plaintiffs’ renewed motion for partial summary
judgment. See ECF No. 51, Ex. 2.

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and directly west of Robb Drive in Reno, Nevada. Defendant FJM’s 40-acre parcel abuts I-80

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and is adjacent to Robb Drive at the I-80 and Robb Drive interchange (“Robb Drive

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interchange”). FJM acquired the property in 2004 in order to build a truck stop. In 2005, FJM

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purchased from the State of Nevada a break in control of access and abutter’s rights for the thin

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strip of land between the FJM property and Robb Drive. As a result of this contract, FJM gained

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an access easement to Robb Drive from the FJM property that included the right to develop an

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intersection from the property onto Robb Drive. In 2008, FJM filed bankruptcy and abandoned

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its plan for a truck stop. At this time, there is no developed intersection or roadway access to

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Robb Drive from the FJM property.

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Plaintiff TCA’s property directly abuts FJM’s property to the west and plaintiff Gas’

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property directly abuts TCA’s property. Both properties border I-80 but do not have access to

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either I-80 or Robb Drive. Rather, the only access to plaintiffs’ parcels is through LeRoy Street

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which is not a major egress point for vehicles, but does provide both properties with access to

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public utilities.

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In the hope of improving the value of all properties, the parties entered into the

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aforementioned Grading Agreement in March 2012. Pursuant to the Grading Agreement,

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plaintiffs agreed to move approximately 600,000 cubic yards of earth from the FJM property

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onto the TCA property. The removal of the overburden from the FJM property would bring that

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property to a surface elevation consistent with the existing Robb Drive interchange. The

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overburden would then be used on the TCA property to fill a large canyon that dissects the

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property. As a result of this mass grading all three properties would be brought to the same level

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and create a “super pad” that would allow for the eventual development of all the properties. In

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exchange for the grading of its property and an easement across plaintiffs’ properties for public

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utilities, defendant FJM was to convey to plaintiffs a “right of way for access” across its property

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and the purchased abutter’s rights to Robb Drive.

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This suit arose in 2013 when FJM allegedly anticipatorily breached the Grading

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Agreement by refusing to fund and build an intersection on its property that would provide

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plaintiffs with improved access onto Robb Drive. On March 31, 2014, plaintiffs filed the
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underlying complaint against FJM alleging five causes of action: (1) breach of contract;

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(2) breach of the implied covenants of good faith and fair dealing; (3) specific performance; (4)

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fraud in the inducement; and (5) declaratory relief. ECF No. 1., Ex. A. On August 10, 2015,

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plaintiffs’ filed a motion for partial summary judgment on their claims for breach of contract,

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specific performance, and declaratory relief. ECF No. 51. In response, FJM filed a cross-motion

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motion for partial summary judgment on the plaintiffs’ claim for declaratory relief. ECF No. 55.

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On March 22, 2016, the court issued an order denying plaintiffs’ motion for partial summary

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judgment and granting FJM’s cross-motion for partial summary judgment. ECF No. 63.
On August 18, 2016, plaintiffs filed a second renewed motion for summary judgment or,

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in the alternative, for clarification. ECF No. 69. In response, on September 19, 2016, FJM filed

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its own cross-motion for summary judgment. ECF No. 75. Since the filing of the parties’ cross-

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motions, the parties have filed five (5) separate stipulations for extensions of time to file

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response briefs to the motions. See ECF Nos. 76, 78, 80, 82, 84, 86. The court granted all five

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stipulations extending the deadline to file responses from the fall of 2016 until March 6, 2017.

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See ECF Nos. 77, 79, 81, 83, 85, 87. In granting the last stipulation, the court specifically

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ordered that no further extensions shall be granted.

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On March 6, 2017, the deadline for responsive briefing to the motions for summary

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judgment, the parties filed the present sixth stipulation for extension of time seeking an extension

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on the response deadline well into April 2017. ECF No. 88. In their stipulation, the parties

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contend that they have reached a tentative settlement, but that the settlement agreement will take

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more time to complete. The court recognizes the time and energy the parties have spent on

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reaching the settlement. But, the court also recognizes that there have been pending motions on

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the court’s docket for over six (6) months with no response. The court finds that the appropriate

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action at this time is to deny the pending motions for summary judgment without prejudice. This

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action will allow the parties time to work on the settlement and complete all necessary

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documentation without the need to ask the court for additional continuances and extensions of

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time while at the same time clearing the court’s docket of pending motions that cannot be

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addressed. In the event the proposed settlement should break down, the court will allow refiling of

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the subject motions.

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IT IS THEREFORE ORDERED that the parties’ sixth stipulation for an extension of
time (ECF No. 88) is DENIED.
IT IS FURTHER ORDERED that plaintiffs’ second renewed motion for summary

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judgment (ECF No. 69) and defendant’s cross-motion for summary judgment (ECF No. 75) are

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DENIED without prejudice.

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IT IS FURTHER ORDERED that in the event settlement shall not be finalized within
thirty (30) days after the entry of this order, the parties shall file a joint status report disclosing
their settlement progress over the preceding month and any requested further action by the court.

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IT IS SO ORDERED.

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DATED this 7th day of March, 2017.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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