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John Bordynuik Inc. v. JBI, Inc.

United States District Court, D. Nevada

January 13, 2015

John Bordynuik Inc., Plaintiff,
v.
JBI, Inc., Defendant.

ORDER DENYING MOTIONS TO DISMISS, FOR SUMMARY JUDGMENT, FOR ORAL ARGUMENT, FOR LEAVE TO FILE, AND TO STRIKE

RICHARD F. BOULWARE, II, District Judge.

I. INTRODUCTION

Before this Court are five motions: Defendant's Motions to Dismiss, ECF. No 6; Defendant's Motion for Summary Judgment, ECF. No 7; Plaintiff's Application for Oral Argument, ECF No. 15; Plaintiff's Motion for Leave to File a Surreply, ECF No. 16; and Defendant's Motion to Strike Plaintiff's Motion for Leave to File a Surreply, ECF No. 17. For the reasons given below, all five motions must be denied.

II. PROCEDURAL BACKGROUND

On August 14, 2013, plaintiff John Bordynuik Inc., a Delaware Corporation ("JBI-DE"), filed suit against JBI Inc., a Nevada corporation ("JBI-NV"). JBI-DE stated six claims for relief: breach of contract, breach of the implied covenant of good faith and fair dealing, two claims of conversion, fraud in the inducement, and fraud. Compl. 3-7, ECF No. 1.

On September 30, 2013, JBI-NV moved for dismissal and summary judgment.[1] In these motions, JBI-NV posited that "Plaintiff Lacks Standing to Bring the Action" because JDI-DE was "not properly revived as a corporation" because "Ms. Elsley did not have the authority to file the certificate of revival and renewal of the corporation." Mot. to Dismiss 6:14, 7:2, 8:3-4; Mot. for Summ. J. 6:14, 7:2, 8:3-4.

In addition to responding to JBI-NV's dispositive motions, JBI-DE moved for oral argument on JBI-NV's dispositive motions on Dec. 4, 2013, ECF No. 15, and leave to file a surreply on Dec. 6, 2013, ECF No. 16. The motivation behind both of these two motions was the same: "In Defendant's Reply to Plaintiff's Opposition, Defendant has submitted documents, the authenticity of which Plaintiff has not had an opportunity to challenge." Pl's. Appl. for Oral Arg. ΒΆ 5; accord Mot. for Leave to File a Surreply 2:21-27.

On December 6, 2013, JBI-NV moved to strike JBI-DE's motion for surreply. ECF No. 17. JBI-DE's Application for Oral Argument remains unopposed.

On October 7, 2014, Magistrate Judge Ferenbach noted that the parties had not filed a discovery plan and scheduling order, as required by Local Rule 26-1, and ordered they do so by October 17. Instead, on October 10, the parties filed a stipulation to suspend discovery pending the Court's rulings on JBI-NV's Motion to Dismiss, ECF No. 6. Stipulation, ECF No. 21. On October 10, Judge Ferenbach issued an order postponing the required filing "until the earlier of thirty (30) days after the court's ruling on the Motion to Dismiss (#10) or April 10, 2015." Order Granting Limited Stay of Disc. 1:20-21, ECF No. 22.

III. DISCUSSION

A. Motion to Dismiss

1. Legal Standard

An initial pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief" as well as a demand for relief. Fed.R.Civ.P. 8(a). The court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In ruling on a motion to dismiss, "[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party." Faulkner v. ADT Sec. Services, Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted).

As a general rule, "a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Whenever a district court looks beyond pleadings in evaluating a motion to dismiss under Rule 12(b)(6), that motion must be treated as one for summary judgment. Fed.R.Civ.P. 12(d). Under two exceptions to this requirement, however, a court may consider extrinsic evidence in a Rule 12(b)(6) motion: 1) materials which are ...


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