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Harrington v. Tackett

United States District Court, D. Nevada

July 11, 2019

DANIEL HARRINGTON, an individual, PAMELLA HARRINGTON, an individual, NIGHTWATCH MARINE, LLC, a Nevada limited liability company, Plaintiffs,
DAVID TACKETT, an individual, Defendant. NO. 8 MINE, LLC, Plaintiff,
NO. 8 MINE, LLC, Counter-Defendant. THE ELJEN GROUP, LLC, et al., Third Party Plaintiffs,



         Before the court is the Motion to Consolidate Case No. 3:18-cv-00028-WGC and Case No. 3:18-cv-00104-WGC filed by David Tackett and No. 8 Mine, LLC and The Eljen Group, LLC, Elven E. Jennings, Jack Elkins, Frank Lente, and Steve Harper in both cases. (ECF Nos. 56, 56-1 to 56-5 in 3:18-cv-00028-WGC; ECF Nos. 81, 81-1 to 81-5 in 3:18-cv-00104-WGC.) The plaintiffs in 3:18-cv-00028-WGC, Daniel Harrington, Pamella Harrington and Nightwatch Marine, LLC, filed a limited opposition in both cases. (ECF Nos. 62, 62-1 to 62-5 in 3:18-cv-00028-WGC; ECF Nos. 91, 91-1 to 91-5 in 3:18-cv-104-WGC.) A reply was also filed in both cases. (ECF No. 65 in 3:18-cv-00028-WGC; ECF No. 94 in 3:18-cv-104-WGC.)

         I. BACKGROUND

         A. Parties to the Actions

         The parties in 3:18-cv-00028-WGC are: plaintiffs Daniel Harrington, Pamella Harrington, and Nightwatch Marine, LLC (collectively, the Harringtons), and defendant David Tackett.

         The parties in 3:18-cv-00104-WGC are: plaintiff No. 8 Mine, LLC; defendants the Eljen Group, LLC, Elven E. Jennings (collectively Eljen/Jennings), Jack Elkins, Frank Lente, and Steven Harper (collectively Elkins/Lente/Harper) (when referring to Eljen/Jennings and Elkins/Lente/Harper together, the court will refer to them as the Eljen parties); counterclaimants the Eljen parties; counter-defendant No. 8 Mine, LLC; third-party plaintiffs the Eljen parties; and third-party defendants David Tackett, Argent Asset Group, LLC, and Robert Higgins (Higgins is alleged to be the managing member and chief executive of Argent Asset Group, LLC).

         Argent Asset Group and Higgins have been served but have not appeared (see ECF Nos. 61, 62), and Eljen/Jennings and Elkins/Lente/Harper have not moved for clerk's entry of default as of this time.

         B. The 3:18-cv-00028-WGC Case

         The Harringtons allege that they entered into a contract to purchase real and personal property in Crescent Valley, Nevada, from the D.P. Ward Family Trust (Ward Trust) on October 30, 2015. The contract included the sale of certain warehouses located on the real property and approximately 130, 000 pounds of turquoise ore that was in the warehouse buildings.

         In August of 2017, Tackett contacted the Harringtons about coming to inspect and purchase all of the turquoise ore. When Tackett arrived on August 25, 2017, he claimed that he owned the turquoise ore through a previous purchase. The Harringtons allege that Tackett threatened litigation if they did not sell Tackett the turquoise ore. As a result, the Harringtons orally offered to sell Tackett all of the turquoise ore in exchange for immediate payment of $300, 000, and future payments of $20 per pound for any of the turquoise ore Tackett sold. Tackett orally accepted the offer. The Harringtons and Tackett then prepared and signed a short written document memorializing the terms of the oral agreement. The Harringtons claim that immediately after they signed the agreement, Tackett called three semi-trucks to pick up the turquoise ore. The trucks arrived within about five minutes and took 48 sacks of turquoise ore to Tackett's location in Flagstaff, Arizona. Tackett then claimed he could not pay the Harringtons the $300, 000 that day because the banks were closed. He asked the Harringtons to meet him the next day at a Wells Fargo bank in Winnemucca, Nevada to pay them the $300, 000. Tackett did not meet them, and never paid the $300, 000. The only amount paid was $20, 000 for the cost of bagging and sorting some of the turquoise ore. The Harringtons assert claims for breach of contract, unjust enrichment, conversion, and fraud and/or intentional misrepresentation. (ECF No. 23 in 3:18-cv-00028-WGC.)

         C. The 3:18-cv-00104-WGC Case

         1. No. 8 Mine Allegations

         No. 8 Mine alleges that on May 17, 2017, Elkins/Lente/Harper entered into two purchase agreements for 280, 000 pounds of turquoise ore from Eljen/Jennings for a total purchase price of $1, 500, 000. Then, on June 8, 2017, No. 8 Mine and Elkins/Lente/Harper entered into an agreement whereby Elkins/Lente/Harper assigned their rights under the purchase agreement with Eljen/Jennings to No. 8 Mine. On June 16, 2017, No. 8 Mine and Eljen/Jennings entered into two agreements that transferred title to the turquoise to No. 8 Mine. On July 13, 2017, Eljen/Jennings executed a closing agreement providing that upon payment of the $1, 500, 000 to an account, the purchase price would be deemed paid in full. No. 8 Mine wired $1, 250, 000 to the bank account, which belonged to Argent Asset Group, LLC, to purchase approximately $1, 320, 000 worth of silver, which was to be delivered by Argent to Eljen/Jennings. No. 8 Mine paid an additional $188, 000 in cash and other metals directly to Eljen/Jennings constituting full payment under the agreement. No. 8 Mine alleges that through no fault of its own, Argent has not yet provided Eljen/Jennings with the total $1, 320, 000 worth of silver, but has delivered approximately $600, 000 worth of silver to Eljen/Jennings.

         No. 8 Mine took possession of the turquoise, and it is stored in Flagstaff, Arizona, with the exception of 64, 000 pounds of the turquoise, which the parties agreed would be held at a storage facility in Winnemucca, Nevada until Argent delivered the remaining silver owed to Eljen/Jennings.

         No. 8 Mine alleges that the Eljen parties acted together to convert the 64, 000 pounds of turquoise stored in Winnemucca, Nevada by way of an October 17, 2017 purchase agreement where Eljen/Jennings purported to sell the 64, 000 pounds of turquoise to Elkins/Lente/Harper. Then, in December of 2016, the Eljen parties transported the 64, 000 pounds of turquoise in Winnemucca, Nevada to New Mexico. Elkins/Lente/Harper subsequently sold 10, 000 pounds of that turquoise to a buyer in Quartzite, Arizona, at 20 percent of the actual market value, undercutting the market for No. 8 Mine's sale of the remaining turquoise.

         No. 8 Mine asserts claims for breach of contract, breach of the implied covenant of good faith and fair dealing, conversion, conspiracy, intentional interference with prospective economic advantage, unjust enrichment and declaratory relief. (ECF No. 34 in 3:18-cv-00104-WGC.)

         2. The Eljen ...

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