Braddock v. Zaycon Foods LLC et al
MINUTE ORDER denying in part and deferring in part Individual Defendants' 119 Motion for Partial Summary Judgment ; deferring Plaintiff's 124 Motion for Partial Summary Judgment ; RENOTING motions, dkts. 119 and 124 , to 5/29/2019 ; SETTING Oral Argument on deferred portion of motions (dkts. 119 , 124 ): Motion Hearing set for 5/29/2019 at 1:30 PM in Courtroom 15206. Plaintiff shall file supplemental brief by 5/10/2019. Defendants shall file a combined responsive brief by 5/17/2019. Authorized by Judge Thomas S. Zilly. (SWT)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
ZAYCON FOODS LLC, et al.,
The following Minute Order is made by direction of the Court, the Honorable
10 Thomas S. Zilly, United States District Judge:
Individual Defendants’ Motion for Partial Summary Judgment, docket
no. 119, is DENIED in part and DEFERRED in part as follows.
The Motion is DENIED as to Plaintiff’s First and Second Claims.
Plaintiff’s First and Second Claims remain a part of the Amended Complaint, docket
no. 76, and no party has moved for dismissal or summary judgment regarding those
claims. Defendants suggest these claims are no longer operative because they were
dismissed earlier in the case. See Defs.’ Mot. for Partial Summary Judgment, docket
no. 119, at 7. Plaintiff’s subsequent request for leave to amend, docket no. 55, was
granted by the Court, docket no. 74, and Plaintiff realleged federal and state securities
fraud claims. See Am. Compl., docket no. 76;
Except as to Defendant Kremin, the Motion is DENIED as to the
Third Claim for fraud, the Fourth Claim for negligent misrepresentation, and the Fifth
18 Claim for breach of fiduciary duty. There are material issues of fact that preclude
summary judgment on those claims; and
The Motion is DEFERRED as to the Sixth Claim for breach of
contract, all claims relating to Defendant Kremin, and Plaintiff’s Eighth Claim for
Plaintiff’s Motion for Partial Summary Judgment, docket no. 124, for
(a) finding Defendants liable for breach of the Second Amended and Restated Operating
22 Agreement, as amended (“Operating Agreement”) and Employment Agreement, and
MINUTE ORDER - 1
1 (b) dismissing Defendants’ First Counterclaim for declaratory judgment is also
The Court RENOTES the motions, docket nos. 119 and 124, to May 29,
3 2019. The Court SETS oral argument on the deferred issues described above in
Paragraphs 1(c) and 2 (the “Deferred Motions”) for May 29, 2019, at 1:30 p.m. At oral
4 argument, the parties should address the Deferred Motions with emphasis on the
Whether the Michael John Trust and/or the Saratoga Trust held
voting rights and consented to Plaintiff’s removal as co-Manager or whether Defendants
Giunta and Saratoga retained the voting rights, had the right to consent (see
7 RCW 25.15.251(3)), and consented to Plaintiff’s removal as co-Manager. Was any
transfer of units in violation of Article 8 of the Operating Agreement and, if so, would the
8 transferors retain the voting rights associated with the transferred units under the
Operating Agreement and/or state law;
Whether there are any other issues of fact relating to whether 80%
consent was obtained for Plaintiff’s removal as co-Manager;
The proper interpretation of the Operating Agreement as to whether
11 80% consent was necessary and/or obtained for Plaintiff’s removal as co-Manager;
What claims can be dismissed if the Court concludes Defendants
obtained the required 80% consent to remove Plaintiff as co-Manager; and
Whether Defendant Kremin can be dismissed as to all claims.
Plaintiff shall file a supplemental brief not to exceed 20 pages by May 10,
15 2019, and Defendants shall file a combined responsive brief not to exceed 20 pages by
May 17, 2019, addressing the issues outlined in paragraph 3 of this Minute Order. No
16 replies shall be filed.
At the hearing on May 29, 2019, the parties should also be prepared to
17 address a trial date and any pretrial deadlines.
The Clerk is directed to send a copy of this Minute Order to all counsel of
Dated this 19th day of April, 2019.
William M. McCool
MINUTE ORDER - 2
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