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United States v. Drax, Inc.

United States District Court, D. Nevada

October 11, 2017

UNITED STATES OF AMERICA for the use and benefit of HANCOCK SANDBLAST & PAINT LLC, an Oregon limited liability company, Plaintiff,
v.
DRAX, INC., a corporation; and TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a corporation, Defendants. DRAX, INC., a corporation; Cross-Claimant,
v.
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a corporation Cross-Defendant. DRAX, INC., a corporation; Third-Party Plaintiff,
v.
ANDERSON BURTON CONSTRUCTION, INC., Third-Party Defendant. ANDERSON BURTON CONSTRUCTION, INC., Third Party Counterclaimant,
v.
DRAX, INC., a corporation; Third-Party Counterdefendant.

          JAMES E. SMYTH, II, ESQ., TARA C. ZIMMERMAN, ESQ., KAEMPFER CROWELL Attorneys for Drax, Inc.

          Anthony P. Niccoli LAW OFFICES OF DIETRICH & SALAMONE, PLLC Jay G. Trinnaman, Attorneys for Travelers Casualty and Surety Company of America and Anderson Burton Construction, Inc.

          STIPULATION AND ORDER TO STAY THE PROCEEDING PENDING ARBITRATION AND TO REFER ALL ISSUES TO ARBITRATION ECF NO. 49

         WHEREAS, on June 14, 2016, Hancock Sandblast & Paint, LLC (“Hancock”) commenced this action by filing its Complaint against Drax, Inc. (“Drax”) and Travelers Casualty and Surety Company of American (“Travelers”) alleging causes of action for action on Miller Act payment bond against Travelers, and for breach of contract and unjust enrichment against Drax. On August 9, 2016, Travelers filed its Answer to Hancock's Complaint. On August 17, 2016, Drax filed its First Amended Answer to Hancock's Complaint, as well as its Cross-Claim against Travelers and Third-Party Complaint against Anderson Burton Construction, Inc. (“ABC” and collectively with Hancock, Drax, and Travelers, the “Parties”), alleging claims under the Miller Act on the payment bond against Travelers, equitable indemnity and contribution against both Travelers and ABC and claims against ABC for breach of contract, breach of implied covenant of good faith and fair dealing, and unjust enrichment. Upon review of the Court's docket, Travelers failed to answer or otherwise respond to Drax's Cross-Claim. ABC filed its Answer to Third-Party Complaint on September 12, 2016, and that same day filed its Cross-Claim against Drax, including claims for express contractual indemnity and implied contractual indemnity related to claims asserted by Hancock, and breach of written contract. Drax filed its Answer to ABC's Cross-Claim on October 5, 2016;

         WHEREAS, the Parties agreed to submit this case to mediation, and on May 23, 2017, the Parties participated in a mediation with Eleissa C. Lavelle, Esq., mediator and arbitrator with JAMS. No settlement was reached on the date of the mediation, but the Parties, with the assistance of the mediator, continued to engage in settlement negotiations following the completion of the formal mediation, and were subsequently able to reach final resolution and settlement of Hancock's claims against Drax and Travelers;

         WHEREAS, on August 28, 2017, this Court issued an Order [ECF No. 48] on the Parties' Stipulation for Dismissal of Plaintiff's Claims Only [ECF No. 47]. As a result of this Order, Hancock's claims against Drax and Travelers were dismissed with prejudice. The Order for Dismissal did not affect any claims, cross claims, counterclaims or defenses by or among Drax, ABC, and Travelers (the “Remaining Parties”), including the claims by and against the Remaining Parties with respect to indemnity and/or contribution as to Hancock's claims against Drax and Travelers;

         WHEREAS, the claims, cross claims, counterclaims and defenses asserted by and among the Remaining Parties remain unresolved;

         WHEREAS, the Subcontract entered into between Drax and ABC on November 4, 2014, contemplates submission of claims to binding arbitration;

         WHEREAS, the Remaining Parties have agreed that all claims, cross claims, counterclaims and defenses shall be submitted to binding arbitration;

         NOW THEREFORE, it is hereby STIPULATED AND AGREED by and among the Remaining Parties, through their respective counsel, to stay the proceedings in this action and to refer to arbitration to be held at JAMS in Las Vegas, Nevada with a mutually agreeable single arbitrator other than the mediator, Eleissa C. Lavelle, Esq., all claims, cross claims, counterclaims and/or defenses of Drax, ABC, and/or Travelers that were or could have been raised in this action.

         IT IS FURTHER STIPULATED AND AGREED that all pretrial deadlines set forth in the Stipulated Discovery Plan and Scheduling Order [ECF No. 18] filed on September 2, 2016, as amended by the Order Granting Fourth Stipulation to Extend Discovery Deadlines [ECF No. 46] filed on July 14, 2017, be vacated, and the entire case be stayed pending arbitration, with this Court retaining jurisdiction over this matter, to address any post-arbitration issues, including confirmation of any arbitration award.

         ORDER

         IT IS SO ORDERED. The Clerk of Court is directed to STAY (and administratively ...


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