Strous v. McPheely ( 2024 )

1 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 3|| Theodurus Strous, Case No. 2:22-cv-00256-CDS-EJY 4 Plaintiff Ordering Supplemental Briefing 5 V. 6|| Bernard McPheely, et al., 7 Defendants 8 9 In February 2023, the Scio defendants and Adamas defendants filed motions to dismiss 10] the second amended complaint. ECF Nos. 28, 30. One argument raised by the Adamas 11}| defendants is that this court lacks subject-matter jurisdiction under 28 U.S.C. § 1332 because 12|| nominal defendant Scio Diamond Technology Corp. should properly be aligned as a plaintiff in this suit, thus destroying diversity. ECF No. 30 at 8-9. Plaintiff Theodurus Strous’ response 14|| focuses largely on his allegations concerning the alleged antagonism of the individual defendant 15|| directors who were not in control of Scio at the time this suit was filed. See In re Digimarc Corp. 16|| Derivative Litig., 549 F.3d 1223, 1236 (9th Cir. 2008) (holding that antagonism must exist at the 17|| time suit was filed). 18 Because this court must resolve the jurisdictional question, the parties are ordered to 19|| submit supplemental briefing by June 28, 2024, on whether Scio was properly pled as a nominal 20]| defendant given Scio’s state at the time the suit was filed. Defendants may choose to file 21|| separately or jointly, and each brief and response should be no more than 10 pages each (15 if joint). Any response is due within 14 days and if defendants file a joint 15-page brief, Strous may 23] respond with 15 pages. Replies are limited to five pages and are due seven days after any response is filed. 25 Dated: June 14, 2024 /y ‘ 26 Unité States District Judge