Strous v. McPheely et al, No. 2:2022cv00256 - Document 35 (D. Nev. 2023)
Court Description: ORDER Granting 34 Motion to Extend Time re 28 Motion to Dismiss, 30 Motion to Dismiss. Responses due by 5/15/2023. Replies due by 6/21/2023. Signed by Judge James C. Mahan on 4/7/2023. (Copies have been distributed pursuant to the NEF - JQC)
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Strous v. McPheely et al Doc. 35 1 MARTIN A. MUCKLEROY, ESQ. Nevada Bar No. 009634 2 MUCKLEROY LUNT, LLC 6077 S. Fort Apache, Ste 140F 3 Las Vegas, NV 89148 Phone: (702) 907-0097 4 Direct: (702) 534-6272 Fax: (702) 938-4065 5 martin@muckleroylunt.com 6 Attorney for Plaintiff Theodurus Strous 7 (Additional Counsel on Signature Page) 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 THEODURUS STROUS, DERIVATIVELY ON BEHALF OF SCIO Case No. 22-cv-00256-JCM-EJY 12 DIAMOND TECHNOLOGY CORP., 13 14 15 Plaintiff, v. BERNARD MCPHEELY, KARL 16 LEAVERTON, GERALD MCGUIRE, LEWIS SMOAK, ADAMAS ONE CORP. 17 and JOHN G. GRDINA, 18 19 20 Defendants, and SCIO DIAMOND TECHNOLOGY STIPULATION TO PARTIALLY EXTEND BRIEFING SCHEDULE RE DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFF’S SECOND AMENDED DERIVATIVE ACTION AND CLASS ACTION COMPLAINT (Second Request) 21 CORP., 22 Nominal Defendant. 23 24 25 26 27 28 Plaintiff Theodurus Strous (“Plaintiff”) and Defendants Bernard McPheely, Karl Leaverton, Gerald McGuire, Lewis Smoak (collectively, the “Scio Defendants”), Adamas One Corp., and John Grdina (collectively, along with Gerald McGuire, the “Adamas Defendants”, and along with the Scio Defendants, the “Defendants”)), by and through their STIPULATION TO PARTIALLY EXTEND BRIEFING SCHEDULE RE DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFF’S SECOND AMENDED DERIVATIVE ACTION AND CLASS ACTION COMPLAINT Dockets.Justia.com 1 undersigned counsel, stipulate to extend the remaining briefing schedule on the Defendants’ 2 motions to dismiss the Plaintiff’s Second Amended Derivative Action and Class Action 3 Complaint (the “SAC”). This is the second request to extend the briefing schedule on the 4 Defendants’ Motions to Dismiss and seeks a partial extension. Following are the events to 5 date: 6 On February 10, 2022, Plaintiff filed the Complaint against Defendants Bernard 7 McPheely, Karl Leaverton, Gerald McGuire, and Lewis Smoak. 8 On September 30, 2022, Plaintiff Theodurus Strous filed the Amended Complaint 9 against Defendants Bernard McPheely, Karl Leaverton, Gerald McGuire, and Lewis Smoak, 10 and added two additional Defendants: Adamas One Corporation and John G. Grdina. 11 On November 15, 2022, the Court granted Defendants’ Stipulation to Extend 12 Defendants’ time to Respond to Plaintiff’s Amended Complaint. 13 The briefing schedule per the Court’s Order has been partially satisfied as follows: 14 On January 20, 2023, Plaintiff filed the SAC. 15 On February 17, 2023, the Scio Defendants and Adamas Defendants filed separate 16 motions to dismiss the SAC with the Adamas Defendants also joining in the motion to 17 dismiss of the Scio Defendants. 18 Presently pending is Plaintiff’s opposition brief to Defendants’ Motions to Dismiss 19 that is due to be filed on April 6, 2023, and Defendants’ reply briefs that are due on May 11, 20 2023. 21 The parties propose the following amended schedule: 22 a. On May 15, 2023, Plaintiff shall file an opposition to Defendants’ motions to 23 dismiss and/or inform the Court of how it wishes to proceed based on the facts set forth 24 below; and 25 b. On June 21, 2023, Defendants shall file their reply briefs to Plaintiff’s 26 opposition to the motions to dismiss and/or file a response to Plaintiff’s proposed course of 27 how to proceed. 28 Good cause exists for the proposed extension, as set forth below: 2 Case No. 2:22-cv-00256-JCM-EJY STIPULATION TO PARTIALLY EXTEND BRIEFING SCHEDULE RE DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFF’S SECOND AMENDED DERIVATIVE ACTION AND CLASS ACTION COMPLAINT 1 1. Plaintiff’s SAC alleges a derivative claim under Federal Rule of Civil 2 Procedure 23.1 against all Defendants and alleges demand is futile as to Scio’s Board of 3 Directors. In determining the demand futility issue, the pertinent inquiry is directed at the 4 Board of Directors who were Scio board members at the time of the filing of the original 5 action on February 22, 2022. 6 2. It has very recently come to the attention of the parties that the SCIO 7 Defendants resigned as Scio Board members in March 2020 and that no new Board was 8 appointed or in place on February 22, 2023, or thereafter, as Scio’s Nevada corporate charter 9 was revoked. 10 3. As a result, there is an issue of how to proceed (and whether Plaintiff has 11 standing to proceed) under these circumstances where there appears to be no Board in place 12 at a company whose charter has been revoked at the time the original action was filed. Thus, 13 no demand could have been made, nor can the demand futility issue be properly addressed. 14 4. The parties seek an opportunity to determine the effect of the combination of 15 a corporation whose charter was revoked and entire Board resigning prior to suit being 16 brought and no new Board appointed because of the demand/demand futility issue and 17 accordingly, how to proceed. 18 5. The Parties believe that this extension, if granted, will not unreasonably delay 19 this case and that the extension will serve to preserve the Court’s and the parties’ resources 20 and advance judicial economy under the circumstances present in this litigation. 21 6. 22 Therefore, the parties propose the following amended briefing schedule for Neither Plaintiff nor Defendants will be prejudiced by the stipulation. 23 Defendants’ Motions to Dismiss: 24 25 1. Defendants moved to dismiss the Second Amended Complaint on Friday, February 17, 2023. 26 2. On or before Monday, May 15, 2023, Plaintiff shall file an 27 opposition to Defendants’ motions to dismiss and/or inform 28 the Court of how it wishes to proceed based on the facts set 3 Case No. 2:22-cv-00256-JCM-EJY STIPULATION TO PARTIALLY EXTEND BRIEFING SCHEDULE RE DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFF’S SECOND AMENDED DERIVATIVE ACTION AND CLASS ACTION COMPLAINT 1 forth above concerning the requirements of Federal Rule of 2 Procedure 23.1; and 3 3. On or before Wednesday, June 21, 2023, Defendants shall 4 file their reply briefs to Plaintiff’s oppositions to the motions 5 to dismiss and/or file a response to Plaintiff’s proposed 6 course of how to proceed based on the facts set forth above 7 concerning the requirements of Federal Rule of Civil 8 Procedure 23.1. 9 4. All rights are reserved with regards to any further requests 10 for extensions of deadlines. This schedule can be modified 11 by further written agreement of the parties or order of the 12 court. 13 5. This Court shall retain jurisdiction with respect to all matters 14 arising from or related to the implementation of this Order. 15 Dated this 5th day of April, 2023. 16 SPENCER FANE LLP MUCKLEROY LUNT, LLC 17 18 Mary E. Bacon (NV Bar No. 12686) 300 S. Fourth Street, Suite 950 Las Vegas, NV 89101 19 and 20 BEST & FLANAGAN LLP /s/ Martin A. Muckleroy Martin A. Muckleroy (NV Bar No. 9634) 6077 S. Fort Apache Rd., Ste. 140 Las Vegas, NV 89148 Telephone: 702-907-0097 Facsimile: 702-938-4065 21 22 23 24 25 26 27 28 /s/ John A. Sullivan Amy S. Conners John A. Sullivan Brian Linnerooth 60 South Sixth Street, Suite 2700 Minneapolis, Minnesota 55402 Telephone: (612) 339-7121 Facsimile: (612) 339-5897 Attorneys for Defendants Bernard McPheely, Karl Leaverton, Gerald McGuire and Lewis Smoak and EVANGELISTA WORLEY, LLC James Evangelista Stuart J. Guber 500 Sugar Mill Rd., Bldg. A, Ste. 245 Atlanta, GA 30350 Telephone: 404-205-8400 Facsimile: 404-205-8395 Attorneys for Plaintiff 4 Case No. 2:22-cv-00256-JCM-EJY STIPULATION TO PARTIALLY EXTEND BRIEFING SCHEDULE RE DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFF’S SECOND AMENDED DERIVATIVE ACTION AND CLASS ACTION COMPLAINT 1 2 CLARK HILL PLLC 3 /s/ Ryan J. Lorenz 4 Ryan J. Lorenz (NV Bar No. 8165) Nicholas M. Wieczorek (NV Bar No. 6170) 3800 Howard Hughes Pkwy. Ste. 500 Las Vegas, NV 89169 Telephone: (702) 862-8300 Facsimile: (702) 862-8400 Attorneys for Defendants Adamas One Corp., and John Grdina 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Case No. 2:22-cv-00256-JCM-EJY STIPULATION TO PARTIALLY EXTEND BRIEFING SCHEDULE RE DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFF’S SECOND AMENDED DERIVATIVE ACTION AND CLASS ACTION COMPLAINT 1 2 ORDER Per the parties’ stipulation, IT IS SO ORDERED. 3 4 1. On or before Monday, May 15, 2023, Plaintiff shall file an 5 opposition to Defendants’ motions to dismiss and/or inform the 6 Court of how it wishes to proceed based on the facts set forth above 7 concerning the requirements of Federal Rule of Procedure 23.1; and 8 2. On or before Wednesday, June 21, 2023, Defendants shall file 9 their reply briefs to Plaintiff’s oppositions to the motions to dismiss 10 and/or file a response to Plaintiff’s proposed course of how to 11 proceed based on the facts set forth above concerning the 12 requirements of Federal Rule of Civil Procedure 23.1. 13 3. All rights are reserved with regards to any further requests for 14 extensions of deadlines. This schedule can be modified by further 15 written agreement of the parties or order of the court. 16 4. This Court shall retain jurisdiction with respect to all matters 17 arising from or related to the implementation of this Order. 18 19 20 21 _______________________________________ 22 UNITED STATES DISTRICT JUDGE 23 24 April 7, 2023 Date: ___________________________ 25 26 27 28 STIPULATION TO PARTIALLY EXTEND BRIEFING SCHEDULE RE DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFF’S SECOND AMENDED DERIVATIVE ACTION AND CLASS ACTION COMPLAINT 1 CERTIFICATE OF SERVICE 2 3 I hereby certify that on April 5, 2023, a copy of the foregoing was 4 served through the court’s ECF/CM system to all counsel of record. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: April 5, 2023 _/s/ Martin A. Muckleroy Martin A. Muckleroy
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