GBTKAT Gold, LLC v. Golden Queen, LLC ( 2021 )

1 Steven D. McGee #71886 Jared C. Marshall #272065 2 Caroline M. Lutz #274836 FENNEMORE DOWLING AARON 3 8080 North Palm Avenue, Third Floor P.O. Box 28902 4 Fresno, California 93729-8902 Tel: (559) 432-4500 5 Fax: (559) 432-4590 6 Attorneys for Plaintiffs, GBTKAT GOLD, LLC and FAR AWAY, LLC 7 Bradley B. Johnson #257220 8 Adam K. Guernsey #282105 Russell A. Frink #302522 9 HARRISON TEMBLADOR HUNGERFORD & JOHNSON LLP 2801 T Street 10 Sacramento, California 95816 Tel: (916) 382-4377 11 Fax: (916) 382-4380 12 Attorneys for Defendant, GOLDEN QUEEN MINING COMPANY, LLC 13 14 UNITED STATES DISTRICT COURT 15 EASTERN DISTRICT OF CALIFORNIA 16 17 18 GBTKAT GOLD, LLC, a California limited Case No. 1-19-cv-01114-DAD-JLT liability and FAR AWAY, LLC, a California 19 limited liability company, STIPULATION TO EXTEND PLEADING AMENDMENT DEADLINE AND MODIFY 20 Plaintiffs, SCHEDULING ORDER AND [PROPOSED] ORDER GRANTING IN PART 21 vs. 22 GOLDEN QUEEN, LLC, a California limited (Doc. 30) liability company; GOLDEN QUEEN 23 MINING COMPANY, LTD, a publicly traded British Columbia corporation 24 Defendants. 25 26 /// 27 /// 1 Plaintiffs GBTKAT GOLD, LLC and FAR AWAY, LLC (collectively, 2 “Plaintiffs”) and Defendant GOLDEN QUEEN MINING COMPANY, LLC (erroneously named 3 in the Complaint as GOLDEN QUEEN, LLC) (“Defendant”) (collectively, the “Parties”), by and 4 through their respective counsel of record, submit the following Stipulation to Extend Pleading 5 Amendment Deadline and Modify Scheduling Order and Proposed Order Thereon in connection 6 with Plaintiffs’ intent to file an amended complaint in the above-captioned action, to which 7 Defendant has already consented and will also stipulate for Plaintiffs’ leave to file, pursuant to 8 Federal Rules of Civil Procedure 6(b)(1)(A), 15(a)(2), 16(b) and 29(b), Local Rules 143 and 144, 9 the Court’s Scheduling Order dated December 30, 2019 (Doc. No. 18) (the “Scheduling Order”), 10 and the Order Granting Stipulation to Amend the Case Schedule dated May 3, 2020 (Doc. No. 28) 11 (the “First Amended Scheduling Order”). 12 I. 13 RECITALS 14 WHEREAS, on August 15, 2019, Plaintiffs filed their complaint in the U.S. 15 District Court, Eastern District of California for: Accounting; Declaratory Relief; Waste; 16 Conversion; and Unfair Competition – Cal. Bus. & Prof. §17200, et seq. (Doc No. 1) (the 17 “Complaint”). 18 WHEREAS, on September 30, 2019, Defendant filed its answer to Plaintiffs’ 19 Complaint (Doc. No. 7) (the “Answer”). 20 WHEREAS, on December 30, 2019, the Court issued the Scheduling Order (Doc. 21 18) providing for pleading, discovery and motion deadlines, settlement and pre-trial conference 22 hearings, and the date of commencement of trial regarding the above-captioned action. Pursuant 23 to the Scheduling Order, the pleading amendment deadline was March 30, 2020. A true and correct 24 copy of the Scheduling Order is attached hereto as Exhibit “A” and is incorporated herein by this 25 reference. 26 WHEREAS, the Parties previously stipulated to extend deadlines other than the 27 pleading amendment deadline and modify the Scheduling Order due to the COVID-19 public 1 Amended Scheduling Order (Doc. No. 28). A true and correct copy of the First Amended 2 Scheduling Order is attached hereto as Exhibit “B” and is incorporated herein by this reference. 3 WHEREAS, Plaintiffs now request an extension of the pleading amendment 4 deadline and to modify the Scheduling Order and the First Amended Scheduling Order in order to 5 file a first amended complaint as described further herein below, to which Defendant has already 6 consented and will also stipulate for Plaintiffs’ leave to file. Pursuant to Federal Rule of Civil 7 Procedure 15(a)(2), leave to amend should be freely given when justice so requires, unless the 8 opposing party makes a showing of undue prejudice, or bad faith or dilatory motive on the part of 9 the moving party. USCS Fed Rules Civ Proc R 15(a)(2); Sonoma Cty. Ass'n of Retired Emples. v. 10 Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013). 11 WHEREAS, pursuant to Federal Rule of Civil Procedure 16(b)(4), modification of 12 a scheduling order is proper upon a showing of good cause, unless the court finds that the request 13 has been unreasonably delayed and will prejudice the non-moving party, that the moving party has 14 acted in bad faith, or that the amendment would be futile. USCS Fed Rules Civ Proc R 16(b)(4); 15 AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 952-953 (9th Cir. 2006). 16 WHEREAS, given recent discovery exchanged between the Parties, good cause 17 exists to allow Plaintiffs to amend the pleading deadline in the above-captioned action in order to 18 amend their Complaint for the following reasons: (i) to correct two scrivenor’s errors regarding 19 Defendant’s and co-defendant GOLDEN QUEEN MINING COMPANY, LTD’s, a publicly 20 traded British Columbia corporation, respective entity names; (ii) to correct the date of the alleged 21 commencement of the co-tenancy between the Parties from January 1, 2001 to January 11, 2011; 22 and (iii) to include an additional declaratory relief cause of action to determine the relationship of 23 the Parties (a) during the lease period of January 15, 1988 through January 10, 2011, and (b) after 24 the expiration of the lease period from January 11, 2011 to present, both of which are in dispute. 25 Amendment to the pleading deadline is important to the Parties’ comprehensive litigation of this 26 matter to resolve all known disputes. Defendant will not be prejudiced in its defense of this action 27 if this request is granted. Further, only through recent discovery have Plaintiffs discovered the 1 request, and this Stipulation constitutes the Parties’ first request to amend the pleading deadline. 2 WHEREAS, for the foregoing reasons and for good cause shown, the Parties 3 request that this Court extend the pleading amendment deadline and modify the Scheduling Order 4 (Doc. 18) and the First Amended Scheduling Order (Doc. No. 28). 5 II. 6 STIPULATION 7 THEREFORE, Plaintiffs and Defendant, by and through their respective counsel of 8 record, hereby stipulate and agree and request that the Court order that: 9 1. The current pleading amendment deadline of March 30, 2020 pertaining to 10 the above-captioned action, as set forth in the Scheduling Order (Doc. 18), be vacated; and 11 2. The pleading amendment deadline pertaining to the above-captioned action 12 be revised and extended to March 12, 2021 as a modification of the Scheduling Order (Doc. 18) 13 and the First Amended Scheduling Order (Doc. No. 28), or in the alternative, pursuant to a different 14 date ordered at the Court’s discretion. 15 IT IS SO STIPULATED. 16 Dated: January 7, 2021 FENNEMORE DOWLING AARON 17 18 By: /s/ Steven D. McGee Steven D. McGee 19 Jared C. Marshall Caroline M. Lutz 20 Attorneys for Plaintiffs, GBTKAT GOLD, LLC and FAR AWAY, LLC 21 22 Dated: January 7, 2021 HARRISON TEMBLADOR HUNGERFORD & JOHNSON LLP 23 24 By: /s/ Bradley B. Johnson 25 Bradley B. Johnson Adam K. Guernsey 26 Russell A. Frink Attorneys for Defendant, 27 GOLDEN QUEEN MINING COMPANY, LLC 1 III. 2 [PROPOSED] ORDER 3 Though counsel explain why an amended complaint should be filed, the extent of the 4 changes to the amended complaint, and why the deadline for doing so should be amended, they do 5 not explain why the plaintiff needs until March 12, 2021 to file the amended complaint. Thus, the 6 Court ORDERS: 7 1. The stipulation to allow the plaintiff to file an amended complaint is GRANTED. 8 The amended complaint SHALL be filed, if at all, no later than January 29, 2021. 9 10 IT IS SO ORDERED. 11 Dated: January 8, 2021 /s/ Jennifer L. Thurston 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 CLUTZ/17658360.2/102143.0001 26 27