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Pathak v. Sierra Meat Co.

United States District Court, D. Nevada

March 30, 2018

NERRY PATHAK, an individual, Plaintiff,
v.
SIERRA MEAT COMPANY; ANSHU BHARAT PATHAK; and DOES 1 through 10, inclusive. Defendants. ANSHU BHARAT PATHAK, an individual, Cross Complainant,
v.
NERRY PATHAK; BEST IGUANA PUERTO RICO MEAT CORPORATION; MONGE CORDERO; JOSE L; MATT DAVIS; and SIERRA MEAT COMPANY, Cross Defendants. NERRY PATHAK, Plaintiff,
v.
ANSHU PATHAK, et al., Defendants.

          ORDER

          RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Pending before the Court are ten Motions: Defendant Sierra Meat Company's Motion to Dismiss (ECF No. 14); Plaintiff's Motion to Dismiss Cross-Claim (ECF No. 37); Plaintiff's Motion to Strike Cross-Claim (ECF No. 38), Defendant Sierra Meat Company's Motion to Dismiss (ECF No. 43); Defendants Sierra Meat Company, Jonathan Mosbacher, and Armand Agra, Inc.'s Motion to Dismiss (ECF No. 57); Plaintiff's Motion to Strike (ECF No. 55), Plaintiff's Motion to Extend Time to Respond (ECF No. 67); Cross-Complainant Anshu Pathak's Motion to Vacate (ECF No. 81); Cross-Complainant Anshu Pathak's Motion for Statutory Damages (ECF No. 85); and Defendants Sierra Meat Company, Jonathan Mosbacher, and Armand Agra, Inc.'s Emergency Motion for Order to Show Cause (ECF No. 92). For the reasons stated below, Defendant's Motions to Dismiss (ECF Nos. 14, 37, 38, 43 and 57) are granted and the remaining motions are denied as moot.

         II. BACKGROUND

         The following factual allegations are taken from Plaintiff's First Amended Complaint (ECF No. 7) in Case No. 2:17-cv-00102-RFB-GWF and his Complaint (ECF No. 1) in Case No. 2:17-cv-01546-RFB-GWF, which contain substantially similar facts.

         Plaintiff alleges that he and his brother, Defendant Anshu Pathak (“Anshu”), are competitors in the market for exotic meats. Defendant Sierra Meat Company (“Sierra Meat”) is a supplier in that market and at one point was a primary supplier for both Plaintiff's business and Anshu's business. Around February 2013, Plaintiff was informed that Anshu owed Sierra Meat $5609.13. Plaintiff and Sierra Meat communicated via email and came to an agreement that in exchange for Plaintiff paying off Anshu's outstanding debt, Sierra Meat would not sell to Anshu's business any longer. Plaintiff sent Sierra Meat a check for $5609.13, which it cashed. On January 3, 2017, Plaintiff discovered that Sierra Meat was selling to his brother, in violation of their previous agreement. Plaintiff alleges that as a result of this breach, he lost his business and reputation and was caused to violate a non-compete agreement with Anshu.

         On January 11, 2017, Plaintiff filed a Complaint against Sierra Meat and other defendants, including his brother, Anshu Pathak in Case No. 2:17-cv-00102-RFB-GWF. (ECF No. 1). On March 15, 2017, Plaintiff filed a First Amended Complaint. (ECF No. 7). On July 5, 2017, Plaintiff moved to strike his own Amended Complaint. (ECF No. 55). Defendant Sierra Meat Company filed a Response on July 14, 2017. (ECF No. 61). On July 21, 2017, Plaintiff filed a Reply. (ECF No. 65).

         On April 6, 2017, Anshu answered Plaintiff's Complaint and filed a Cross-Complaint against Nerry Pathak, Sierra Meat, and Broadleaf Venison (USA) Inc. (ECF No. 10). On May 19, 2017, Anshu filed a First Amended Cross-Complaint. (ECF No. 2)9. Sierra Meat has filed motions to dismiss both Plaintiff's First Amended Complaint and the First Amended Cross-Complaint. (ECF Nos. 14 and 43).

         Plaintiff filed a Cross-claim against Anshu on May 24, 2017. (ECF No. 33). Defendant Sierra Meat filed a Motion to Dismiss Plaintiff's Cross-claim. (ECF No. 37). On June 2, 2017 Plaintiff filed a Response to Defendant's Motion to Dismiss Plaintiff's Crossclaim. (ECF No. 40). Defendant Sierra Meat filed a Reply to Plaintiff's Response on June 8, 2017. (ECF No. 41). On June 6, 2017, Plaintiff moved to strike his own Cross-Claim. (ECF No. 38).

         This Court entered an Order on July 6, 2017 prohibiting Defendant/Cross-claimant Anshu Pathak from communicating, in person, by email, or by any other means, with the employees, officers, directors, contractors, or agents thereof of Defendant Sierra Meat Company. (ECF No. 56). Anshu filed a Motion to Vacate the Court's Order on August 17, 2017. (ECF 81). Defendant Sierra Meat Company filed a Response to Plaintiff's Motion to Vacate on August 25, 2017. (ECF No. 83). On March 23, 2018, Armand Agra Inc., Mosbacher, and Sierra Meat Company filed a Motion for Order to Show Cause and for Sanctions, arguing that Anshu violated this Court's Order; no response has been filed. (ECF No. 92).

         Plaintiff Nerry Pathak filed a Complaint in Case No. 2:17-cv-01546-RFB-GWF on June 1, 2017. (ECF No. 1). Defendants Armand Agra Inc., Jonathan Mosbacher, and Sierra Meat Company filed a Motion to Dismiss this Complaint on July 12, 2017. Plaintiff filed a Response on August 11, 2017. (ECF No. 77). Defendants filed a Reply on August 16, 2017. (ECF No. 79).

         On July 6, 2017 Case No. 2:17-cv-01546-RFB-NJK was consolidated with Case No. 2:17-cv-00102-RFB-GWF, with the latter becoming the lead case.

         III. DISCUSSION

         Before considering any substantive arguments on the claims at issue in these cases, the Court will first address the ...


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