BP America Inc. et al v. Yerington Paiute Tribe et al

Filing 35

ORDER granting ECF No. 34 Unopposed Motion : Amended Complaint due 11/16/2017. Plaintiffs' Amended Motion for Preliminary Injunction due 11/16/2017;Response due 11/30/2017; Reply due 12/14/2017. Defendants' Motion to Dismiss due by 11/30/2017;Response due by 12/14/2017; Reply due by 12/21/2017. Signed by Judge Larry R. Hicks on 11/9/2017. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:17-cv-00588-LRH-WGC Document 34 Filed 11/08/17 Page 1 of 7

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ROBERT A. DOTSON
Nevada Bar No. 5285
JILL I. GREINER
Nevada Bar No. 4276
Dotson Law
One East First Street, 16th Floor
Reno, NV 89501
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Kenzo Kawanabe – Admitted Pro Hac Vice
Adam Cohen – Admitted Pro Hac Vice
Constance L. Rogers – Admitted Pro Hac Vice
Kyle W. Brenton – Admitted Pro Hac Vice
Davis Graham & Stubbs LLP
1550 17th Street, Suite 500
Denver, CO 80202
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
BP America, Inc., and Atlantic Richfield Company

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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)
)
BP AMERICA, INC., and ATLANTIC
)
RICHFIELD COMPANY,
)
)
Plaintiffs,
)
)
v.
)
)
YERINGTON PAIUTE TRIBE;
)
YERINGTON PAIUTE TRIBAL COURT; )
and SANDRA-MAE PICKENS in her
)
official capacity as Judge of the Yerington )
Paiute Tribal Court,
)
)
Defendants.

Case No. 3:17-cv-00588-LRH-WGC

UNOPPOSED MOTION AND ORDER TO
ADJUST MOTION AND BRIEFING
SCHEDULE DUE TO FORTHCOMING
AMENDED COMPLAINT
(FIRST REQUEST)

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4406839.3

Case 3:17-cv-00588-LRH-WGC Document 34 Filed 11/08/17 Page 2 of 7

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Pursuant to Federal Rules of Civil Procedure 6 and Local Rule IA 6-1, Plaintiffs BP

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America, Inc. (“BPA”) and Atlantic Richfield Company (“ARC”), move to adjust the current

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motions and briefing schedule (Dkt. 25) under Fed. R. Civ. P. 12(b) and Local Rule 6-2 due to

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Plaintiffs’ Amended Complaint, which will be filed on November 16, 2017. Because of

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Defendants’ motions to dismiss, Plaintiffs are entitled to file an Amended Complaint as a matter

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of right pursuant to Fed. R. Civ. P. 15(a)(1)(B)). As such, Plaintiffs propose that the current

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motion and briefing schedule be adjusted accordingly.

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Prior to filing this Motion, undersigned counsel conferred with counsel for Defendants
Yerington Paiute Tribe (“Tribe”), Laurie A. Thom in her official capacity as Chairman of the

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Yerington Paiute Tribe (“Chairman Thom”), Yerington Paiute Tribal Court (“Tribal Court”), and

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Sandra-Mae Pickens (“Judge Pickens”). Counsel for Judge Pickens does not oppose this Motion,

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and counsel for the Tribal Court stated that he concurs with Judge Pickens’ counsel. Similarly,

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counsel for the Tribe and Chairman Thom does not oppose this Motion. While Defendants do

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not oppose this Motion, they expressly reserve and do not waive all arguments, including those

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relating to jurisdiction and sovereign immunity. Additionally, in agreeing to not oppose this

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motion, the Tribe and Chairman Thom requested that the following statement be inserted: “The

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Tribe and Chairman Thom do not believe that any amended complaint can cure Plaintiffs’

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jurisdictional infirmities, but recognize that an amended complaint takes the place of Plaintiffs’

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current complaint, and therefore in the interest of judicial economy, they are unopposed to

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Plaintiffs’ proposal to adjust the current motion and briefing schedule. However, the Tribe and

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Chairman Thom expressly reserve and do not waive their sovereign immunity or their arguments

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as to jurisdiction.”

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This is the first request to coordinate and adjust filing deadlines because of the Amended
Complaint.

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Tribal Court Action
1.

On August 18, 2017, the Tribe filed a related action in the Yerington Paiute Tribal

Court, captioned Yerington Paiute Tribe v. BP America Inc. & Atlantic Richfield Co., Case
No. CV1017, against BPA and ARC (the “Tribal Court Action”).
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Case 3:17-cv-00588-LRH-WGC Document 34 Filed 11/08/17 Page 3 of 7

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2.

On September 22, 2017, BPA and ARC mailed and served a Motion to Dismiss

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for Lack of Jurisdiction or, in the alternative, a Motion to Stay Pending Resolution of the Federal

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Court Action (“Motion to Dismiss”) in the Tribal Court Action. That Motion was file-stamped

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on September 28, 2017.

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3.

The Tribe filed an unopposed motion to set deadlines for briefing on BPA and

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ARC’s Motion to Dismiss, which extended certain deadlines to allow time for this court to rule

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on the pending issues. BPA and ARC did not waive and expressly reserved all defenses

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including its challenge to the Tribal Court’s jurisdiction. On November 2, 2017, the Tribal Court

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entered an Amended Scheduling Order, setting the deadlines for briefing on BPA and ARC’s

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Motion to Dismiss. Currently, the Tribe’s Response to the Motion to Dismiss is due on

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December 1, 2017, BPA / ARC’s Reply is due on January 15, 2018, and a hearing is scheduled

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for January 30, 2018. The parties agreed to discuss a further extension of the hearing date should

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circumstances warrant.

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Federal Court Action
1.

On September 22, 2017, BPA and ARC filed their Complaint for Declaratory and

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Injunctive Relief in this court, naming the Tribe, Chairman Thom, the Tribal Court, and

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Judge Pickens as defendants. BPA and ARC simultaneously filed a Motion for Preliminary

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Injunction and a Request for Expedited Consideration (“Preliminary Injunction Motion”).

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2.

BPA and ARC effected service of the Summons, Complaint, and Preliminary

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Injunction Motion on all four defendants on October 5, 2017. See Proofs of Service (ECF

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No. 18-21).

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3.

Pursuant to this court’s scheduling order (ECF No. 25), Defendants in this action

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filed Motions to Dismiss on October 26, 2017, and their responses to BPA’s and ARC’s Motion

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for Preliminary Injunction on October 27, 2017.

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4.

Pursuant to Fed. R. Civ. 15(a)(1)(B), BPA and ARC will file an Amended

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Complaint by the current deadline of November 16, 2017. BPA and ARC will supplement its

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allegations and add additional parties including members of the Tribal Council who are not

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currently parties.
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Case 3:17-cv-00588-LRH-WGC Document 34 Filed 11/08/17 Page 4 of 7

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5.

Council for the Tribe has agreed that it will coordinate with undersigned counsel

for the new Tribal Council member defendants to accept service on or about November 16, 2017.
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Because Plaintiffs will seek an injunction against the new Tribal Council member

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defendants, and modify their arguments based on the Amended Complaint, Plaintiffs request that

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this Court allow them to withdraw their pending Motion for Preliminary Injunction and re-file an

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Amended Motion for Preliminary Injunction against all (current and new) Defendants per the

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proposed briefing schedule below.

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7.

The requested schedule for withdrawal and re-filing of motions and related

briefing is as follows:

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Task

New Deadline

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Plaintiffs to file Amended Complaint, and serve
new Defendants

November 16
[as a matter of right
pursuant to Fed. R. Civ.
P. 15(a)(1)(B))]

Plaintiffs withdraw Motion for Preliminary
Injunction and File Amended Motion for
Preliminary Injunction (“MPI”)

November 16

Defendants file Motions to Dismiss (“MTD”)
Amended Complaint

November 30

Defendants file Responses to Amended MPI

November 30

Plaintiffs file Responses to Amended MTD
Amended Complaint, and Reply to Defendants’
Responses to Amended MPI

December 14

Defendants file Reply to Plaintiffs’ Response to
MTD Amended Complaint

December 21

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8.

BPA and ARC believe these extended and coordinated deadlines will improve

efficiency and convenience for the court, without significantly affecting expedited consideration
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Case 3:17-cv-00588-LRH-WGC Document 34 Filed 11/08/17 Page 5 of 7

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of the substantive issues. The Tribe and Chairman Thom stated that they are unopposed to these

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deadlines because they track the deadlines set forth in the Court’s LR 7-2(b).

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WHEREFORE, BPA and ARC respectfully request that deadlines under Fed. R. Civ.
P. 12 and Local Rule 7-2 be extended and aligned as set forth above.

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Respectfully submitted,

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DATED: November 8, 2017
DOTSON LAW

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By: s/Robert A. Dotson
Robert A. Dotson (SBN 5285)
Jill I. Greiner (SBN 4276)
One East First Street
City Hall Tower, Suite 1600
Reno, NV 89501
Tel:
775.501.9400
[e-mail]
[e-mail]

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and

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DAVIS GRAHAM & STUBBS LLP

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By: s/Kenzo S. Kawanabe
Adam S. Cohen
Kenzo S. Kawanabe
Constance L. Rogers
Kyle W. Brenton
1550 17th Street, Suite 500
Denver, CO 80202
Tel:
303.892.9400
Fax:
303.893.1379
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Attorneys for Plaintiffs BP America, Inc., and
Atlantic Richfield Company
ORDER

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IT IS SO ORDERED.

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DATED this 9th day of November, 2017.
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_______________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE