United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
the Court is Barrick Goldstrike Mines Inc.'s
(“Goldstrike”) Motion for Leave to File Motion
for Summary Judgment Based on Finding of Ambiguity and Stay
Deadline for Submission of Pretrial Order
(“Barrick's Motion”) (ECF No. 229) and
Bullion Monarch Mining, Inc.'s (“Bullion”)
Motion to Seal and Leave to Redact its opposition/response to
Barrick's Motion (“Bullion's Motion) (ECF No.
234). The Court has reviewed Bullion's response to
Barrick's Motion (ECF No. 233), Barrick's
non-opposition to Bullion's Motion (ECF No. 238), and
Barrick's reply in support of their Motion (ECF No. 241).
reasons discussed below, Barrick's Motion is denied and
Bullion's Motion is granted.
case concerns whether Barrick owes Bullion mineral royalty
payments pursuant to an area-of-interest provision contained
in a 1979 agreement. The Court's previous order provides
a more detailed summary of the facts. (See ECF No.
224 at 2-5.)
deadline for dispositive motions in this case was originally
set for August 13, 2010. (ECF No. 32.) After the Ninth
Circuit's opinion remanding and reversing this
Court's prior judgment was issued on April 24, 2015 (ECF
No. 134), this Court allowed for renewed summary judgment
motions to be filed no later than September 22, 2015. (ECF
September 30, 2016, this Court issued its Order on the
parties' cross-motions for summary judgment. (ECF No.
224.) The Court denied the parties' motions, finding in
part that “Paragraph 11 of the 1979 Agreement is
ambiguous with respect to the content of the royalty
obligation” and that “whether the language of the
contract as a whole created a covenant that ran with the
land, a personal covenant, or no covenant at all are issues
that must be deferred to the trier of fact to resolve.”
(Id. at 14-15.) Barrick now requests that they be
permitted to file a motion for summary judgment because the
ambiguity identified by this Court in the 1979 Agreement
“is fatal to Bullion's claims.” (ECF No. 229
at 2.) In turn, they also request that “[i]f the motion
for leave is granted . . . then the deadline for submission
of the pretrial order should be stayed, and no trial should
be scheduled, until [Barrick's] proposed motion has been
fully briefed, argued and decided.” (ECF No 229 at 3.)
BARRICK'S MOTION FOR LEAVE TO FILE (ECF No. 229)
to Federal Rule of Civil Procedure 16, “[a] schedule
may be modified only for good cause and with the judge's
consent.” Fed R. Civ. P. 16(b)(4). “Rule
16(b)'s ‘good cause' standard primarily
considers the diligence of the party seeking the
amendment.” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992). Where a party
seeks summary judgment briefing after the deadline for
dispositive motions has passed, the onus is on the party
moving for supplemental briefing to demonstrate diligence.
“If that party was not diligent, the inquiry should
has failed to demonstrate good cause. The Court agrees with
Bullion that Barrick could have raised the argument that
there is no extrinsic evidence available to resolve the
ambiguity in its prior motion for summary judgment
(see ECF No. 234-1 at 3- 4). Moreover, Barrick
contends that a trial would be pointless because “no
documents were produced relevant to the parties' intent
with respect to the ambiguous term, and there are no
witnesses with the ability to testify on such matters.”
(ECF No. 229 at 2.) However, in determining the parties'
intent, “the trier of fact must construe the contract
as a whole, including consideration of the contract's
subject matter and objective, the circumstances of its
drafting and execution, and the parties' subsequent
conduct.” Ringle v. Bruton, 86 P.3d 1032,
1039 (Nev. 2004) (emphasis added). On the prior motions for
summary judgment, both the admissible evidence presented and
the undisputed facts agreed upon by the parties described the
parties' and their purported assignees' subsequent
conduct in relation to the land and the royalty obligation,
which the trier of fact may use in addition to the other
factors identified in Ringle. Thus, even
disregarding Barrick's lack of diligence, its motion also
lacks merit; an absence of documents or witnesses present at
the time the contract was negotiated and executed is not the
only form of extrinsic evidence a jury may consider.
the Court denies Barrick's request for leave to file a
motion for summary judgment and denies its request to stay
the deadline of submission of the pretrial order as moot.
BULLION'S MOTION FOR LEAVE TO FILE UNDER SEAL
asks that it be permitted to file under seal the unredacted
version of its opposition to Barrick's Motion and to
redact confidential matter that Bullion cites to in its
opposition brief. (ECF No. 234 at 1-2.) Specifically,
Bullion's opposition brief cites to their response (ECF
No. 184) to Barrick's summary judgment motion (ECF No.
160), both of which are sealed. The Court ...