JMAC Energy Services LLC v. Badger Mining Corporation et al

Filing 37

ORDER adopting the parties' 35 Joint Scheduling/Discovery Plan. Discovery due by 5/1/2025. Discovery Motions due by 5/1/2025. Discovery Depositions of Expert Witnesses due by 7/16/2025. Plaintiff(s) Expert Witness Disclosures and Rep orts due by 4/1/2025. Defendant(s) Expert Witness Disclosures and Reports due by 4/15/2025. Plaintiff(s) Rebuttal Expert Disclosures due by 5/16/2025. Join Additional Parties due by 2/1/2025. Joint Proposed Discovery due by 2/1/2025. Dispositive Motions due by 7/1/2025., Nondispositive Motions due by 7/1/2025. By Magistrate Judge Clare R. Hochhalter.(BG)

UNITED STATES DISTRICT COURT
DISTRICT OF NORTH DAKOTA
WESTERN DIVISION
JMAC ENERGY SERVICES LLC,

Case File No: 1:24-cv-00080-DLH-CRH

Plaintiff/CounterDefendant/Counter
Plaintiff,
v.
BADGER MINING CORPORATION;
ATHABASCA MINERALS INC.,
Defendants/CounterPlaintiffs/Third-Party
Plaintiff/CounterDefendants
v.
JON MCCREARY, and TODD ERICKSON,
Third-Party Defendants.
SCHEDULING/DISCOVERY PLAN

Pursuant to Rule 26(f), counsel for the Parties certify that on September 10, 2024, they
conferred by telephone to discuss the nature and basis of their clients’ claims and defenses, the
possibilities for a prompt settlement or resolution of the case, and a proposed discovery plan. After
conferring in good faith, counsel for the parties have agreed upon the following:
(1)

The parties shall make by 11/18/2024 Rule 26(a)(1) initial disclosures, summarized as
follows:
The Parties initial disclosures will conform to the requirements set forth in Fed. R. Civ. P.

Rule 26(a)(1)(A).

31867163.3

(2)

The parties propose the following discovery plan:
(a)

Discovery will be needed on these subjects:
i. The allegations set forth in the pleadings;
ii. Damages claimed by the parties;
iii. Defenses set forth by the parties;
iv. The Operating Agreement of AMI Silica LLC (the “Operating Agreement”)
and the Amendment to the Operating Agreement for AMI Silica LLC (the
“Operating Agreement Amendment”);
v. Athabasca Minerals Inc.’s (“Athabasca”) Canadian bankruptcy proceedings
(the “Athabasca Bankruptcy Case”);
vi. Athabasca’s and its affiliates’ assets and liabilities prior to the Athabasca
Bankruptcy Case;
vii. The sales and investment soliciation process regarding Athabasca’s and its
affiliates’ business and assets, including the auction conducted on February
9, 2024;
viii. Athabasca’s relationship with Badger Mining Corporation;
ix. The negotiation, interpretation, and adherence to AMI Silica, LLC’s
Operating Agreement and the Operating Agreement Ammendment;
x. The civil proceeding filed in the District Court of North Dakota, captioned
as JMAC Energy Services LLC, Case No. 1:24-cv-0037-DMT-CRH (D.
N.D.) and JMAC’s cross-application filed in the Athabasca Bankruptcy
Case;

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xi. Communications between JMAC, including its agents and affiliates, and
Buffalo Rail & Infrastructure Corp. (“Buffalo Rail”) related to the PreDevelopment Agreement with Buffalo Rail;
xii. JMAC’s, or its affiliates’, alleged sales or contracts of sales of sand to third
parties;
xiii. JMAC’s alleged or allegedly proposed use of of railcars provided by AMI
Silica LLC; and
xiv. Any other matter within the scope of Fed. R. Civ. P. 26(b)(1).
(b)

Disclosure, discovery, or preservation of electronically stored information should
be handled as follows:

The parties anticipate the disclosure and discovery of electronically stored information and
agree to provide such information in a format reasonably useable and mutually agreed upon. The
parties will collaborate on the preparation of a mutually accepted electronically stored information
(“ESI”) protocol. Currently, each party expects to bear the costs of their own production of
documents.
(c)

The parties have discussed any issues regarding preservation of discoverable
information as follows:

The Parties have agreed to produce electronically stored information in accordance with
the ESI protocol referenced above.
(d)

The parties have discussed possible need for a protective order as follows:

Due to the confidential nature of many documents likely to be produced in this case, as
well as the substantial number of documents likely to contain trade secrets, the Parties anticipate
that many of the documents in this case will need to be covered by a protective order to be agreed
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upon by the Parties. Further, the Parties anticipate that the protective order shall include terms
allowing for the designation of certain sensitive documents as “Confidential” and “Attorneys’ Eyes
Only”. The Parties will jointly file a proposed order with the Court detailing the terms of the
protective order.

(e)

If this is a case that will involve the discovery of medical, mental health,
employment, education, tax, or workers compensation records, the parties have
agreed to the following with respect to who will secure these records and how the
discovery of the records will be handled (it will not be a sufficient answer that the
parties have not addressed the issue or it will be considered later):

The Parties do not anticipate that any of the above categories of information will be
involved during the discovery phase of this lawsuit.
If the parties have not reached an agreement all or in part, the following is what the
parties have not been able to agree to and the reasons why (if applicable, this section
must be completed):
None.
(f)

The parties have discussed privilege logs, including information to be included
about documents over which privilege is asserted and any categories of documents
which the parties agree need not be identified in privilege logs:

The parties agree that the inadvertent disclosure of privileged or otherwise protected
material shall be governed by Federal Rule of Civil Procedure 26(b)(5)(B) or as specified in any
protective order entered herein. The parties further agree that a party need not provide a privilege
log for communications with legal counsel in this action after March 1, 2023.

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(g)

The parties have agreed to the following maximum number of interrogatories per
party:

Each party will be permitted to serve 35 interrogatories.
(h)

The parties have agreed to the following maximum number of requests for
admissions per party:

Each party will be permitted to serve requests for admission in accordanace with the
Federal Rules of Civil Procedure.
(i)

The parties have agreed to the following maximum number of requests for
production of documents per party:

Each party will be permitted to serve requests for production of documents in accordance
with the Federal Rules of Civil Procedure.
(j)

The parties have agreed to the following maximum number of depositions per
party:

Each party will be allowed to take depositions in accordance with the Federal Rules of
Civil Procedure.
(k)

The parties have discussed possible need for depositions of organizations pursuant
to Rule 30(b)(6) and, as required by that rule, will confer in advance of any
depositions of organizations about topics on which testimony is requested.

(l)

The parties have agreed any depositions taken only for presentation at trial will be
completed at least __25_____ days prior to trial.

(m)

The parties have agreed that all fact discovery will be completed by the following
deadline, with all discovery pursuant to Rules 33, 34, and 36 to be served a
minimum of thirty-three (33) days prior to the deadline:
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31867163.3

5/1/2025
(n)

The parties have agreed on the following deadline for discovery motions:
5/1/2025

(o)

An appropriate time for a mid-discovery status conference would be: 3/3/2025

(p)

The parties have agreed on the following deadlines for exchanging complete expert
witness reports:

(q)

4/1/2025

for plaintiff(s);

4/1/2025

for defendant(s); and

5/16/2025

for any rebuttal experts.

The parties have agreed on the following deadline to complete discovery
depositions of expert witnesses:
7/16/2025

(3)

(4)

The parties have agreed to the following deadlines for filing motions:
2/1/2025

motions to join additional parties;

2/1/2025

motions to amend pleadings;

7/1/2025

nondispositive motions (e.g. consolidation, bifurcation); and

7/1/2025

dispositive motions (e.g. summary judgment).

The parties have discussed alternative dispute resolution and plan as follows:

A court-hosted settlement conference;

Private mediation; or

Other (explain):

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(5)

The parties shall be ready to evaluate the case for settlement purposes by:
4/15/2025

(6)

The parties will not waive their rights to proceed before a district judge and consent to
have a magistrate judge conduct all further proceedings in the case, including the trial, and
order for entry of a final judgment.

(7)

Trial of this case will be jury.

(8)

The estimated length of trial is 7 days.
Dated this 20th day of November, 2024.
By: /s/David R. Konkel
David R. Konkel
WI State Bar No. 1097244
GODFREY & KAHN, S.C.
833 East Michigan Street, Suite 1800
Milwaukee, WI 53202-5615
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Athabasca Minerals, Inc.
By: /s/Hugh D. Brown
Hugh D. Brown
MN State Bar No. 390969
FABYANSKE, WESTRA, HART &
THOMPSON P.A.
333 South Seventh Street, Suite 2600
Minneapolis, MN 55402
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for JMAC Energy Services LLC, Jon
McCreary, and Todd Erickson

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ORDER
The court ADOPTS the parties’ scheduling/discovery plan without any additions or
modifications.
IT IS SO ORDERED.
Dated this 22nd day of November, 2024.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court