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Partner Weekly, LLC v. Viable Marketing Corporation

May 1, 2013

PARTNER WEEKLY, LLC, PLAINTIFF,
v.
VIABLE MARKETING CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Cam Ferenbach United States Magistrate Judge

ORDER (Motion For Extension of Time to Respond to Complaint #65)

Before the court is defendant Chad Elie's Motion For Extension of Time to Respond to Complaint. (#65). Plaintiff Partner Weekly, LLC filed an Opposition. (#69). Defendant Elie did not file a Reply.

Background

Plaintiff filed its complaint on October 7, 2009, in the Eighth Judicial District Court, Clark County, Nevada against Viable Marketing Corporation (hereinafter "Viable Marketing"), Chad Edward Elie, in his individual capacity and as an officer of Viable Marketing, and Doe defendant X. (#1-2). The complaint arises from an Advertising Agreement plaintiff and defendants entered into whereby plaintiff would promote defendants' goods and services. Id. Plaintiff alleges that defendants "knowingly and intentionally, and in bad faith, stopped paying for the services provided by [p]laintiff."

Plaintiff asserts claims for (1) breach of contract, (2) unjust enrichment, (3) breach of good faith and fair dealing, (4) negligence, and (5) alter ego/piercing the corporate veil. Id.

Defendants Viable Marketing and Elie removed the action to this court on November 4, 2009, based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. (#1). On December 7, 2009, defendants filed a motion to stay pending arbitration, or in the alternative, to transfer venue. (#10). Plaintiff filed an opposition on December 18, 2009 (#13), and defendants filed a reply on December 23, 2009 (#14).

The court held a hearing on the motion (#10) on February 8, 2010, and granted the request to stay proceedings and denied the request to transfer venue. (#19). The court ordered the parties to file a status report regarding the arbitration proceedings by August 8, 2010. Id. On June 22, 2010, defendants' attorney filed a motion to withdraw (#20), which the court granted on the same day (#21). On July 28, 2010, defendants filed a motion to substitute attorney. (#22). The court granted the motion to substitute (#22) on August 5, 2010. (#28).

On August 6, 2010, defendants filed a status report pursuant to this court's order (#19). (#31). Defendants stated that plaintiff attempted to initiate arbitration proceedings with American Arbitration Association, but that plaintiff filed the demand with the wrong office and failed to remit the fee necessary to commence arbitration. Id. Defendants also stated that they were willing to go to arbitration and that the plaintiff must be ordered to pay the fee and arbitrate the claims. Id. Plaintiff did not respond to the defendants' status report (#31). On March 17, 2011, the court issued an order for plaintiff to show cause by April 6, 2011, why this action should not be dismissed. (#32). Plaintiff filed a response to the order to show cause (#32) on April 1, 2011, stating that the parties were currently engaged in arbitration and would provide the court with status reports as necessary. (#33).

On September 12, 2011, plaintiff filed a motion to confirm arbitration award. (#34). Defendants filed an opposition on September 29, 2011. (#35). On October 6, 2011, the court issued an order denying without prejudice the plaintiff's motion (#34). (#36). On November 23, 2011, defendants filed a motion to vacate arbitration award (#38) and a proposed order (#39). On December 5, 2011, plaintiff filed an opposition and a counter-motion to confirm. (#40). Defendants filed a reply on December 12, 2011. (#41). On April 9, 2012, the court issued an order denying the motion to vacate arbitration award (#38), and granting the counter-motion to confirm the arbitration award (#40). (#42). The court held that "[t]he arbitrator's Order Granting Claimant's Motion for Summary Judgment dated August 26, 2011 is hereby CONFIRMED. IT IS FURTHER ORDERED that Judgment is hereby entered confirming the arbitrator's Order Granting Claimant's Motion for Summary Judgment dated August 26, 2011." Id.

Defendants filed a Notice of Appeal on May 3, 2012. (#43). On October 9, 2012, defendants filed a Rule 60(A) motion to amend/correct the court's April 9, 2012, order (#42). (#49). On October 15, 2012, defendants filed a motion for an indicative ruling pursuant to Rule 62.1. (#50). Plaintiff filed an opposition to the motion to amend/correct on October 26, 2012. (#51). On November 1, 2012, plaintiff filed an opposition to the motion for indicative ruling. (#52). Defendants filed a reply in support of the motion for an indicative ruling on November 8, 2012. (#54). The court issued an order on December 4, 2012, denying the motion to amend/correct (#49) and granting the motion for indicative ruling (#50) "to the extent that the Court hereby indicates it would amend the Judgment so as to confirm the arbitration award against only Defendant Viable Marketing Corp., and not against Defendant Chad Elie, if the Ninth Circuit remands the matter to this Court for that purpose." (#55).

On January 29, 2013, the Ninth Circuit issued an order granting appellant's motion for leave to file motion under Rule 60(a). (#56). Defendants filed a motion to amend/correct order #42 on motion to vacate on February 8, 2013. (#57). Plaintiff filed an opposition on February 25, 2013 (#58), and defendants filed a reply on March 7, 2013 (#59). On March 15, 2012, the court entered an order granting defendants' motion to amend/correct (#57) and holding that "the Order (Doc. #42) is hereby amended to reflect that the arbitrator's Order Granting Claimant's Motion for Summary Judgment dated August 26, 2011 is CONFIRMED as between Partner Weekly, LLC and Viable Marketing Corp. only. IT IS FURTHER ORDERED that Defendant Chad Elie shall file an answer or otherwise respond to the Complaint within thirty (30) days from the date of this Order, which may include the defenses or arguments raised in Defendants' reply brief that Plaintiff PartnerWeekly, LLC's failure to pursue an alter ego claim against Chad Elie in the arbitration proceedings precludes further litigation of that claim." (#60)(emphasis added).

On March 18, 2013, the clerk entered judgment in favor of plaintiff and against Viable Marketing. (#61). The Ninth Circuit issued an order on March 25, 2013, granting defendants' voluntary dismissal. (#62). On April 5, 2013, defendant Elie filed the instant motion to extend time to respond to the complaint. (#65). Attorney Sigal Chattah, Esq. filed a notice of appearance on behalf of defendant Elie on April 8, 2013. (#66). Also on April 8, 2013, attorneys Craig S. Denney, Esq. and Jeff Ifrah, Esq. filed a motion to withdraw as attorney of record for defendants. (#67). The court granted the motion (#67) on April 9, 2013. (#68). On April 10, 2013, plaintiff filed an opposition to defendant Elie's motion to extend time. (#69). Defendant did not file a reply.

Motion to ...


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