{"cached_at":"2026-10-26T10:46:46.265451+00:00","cl_docket_id":"67087941","docket":{"resource_uri":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","id":67087941,"court":"https://www.courtlistener.com/api/rest/v4/courts/nvd/","court_id":"nvd","original_court_info":null,"idb_data":null,"clusters":["https://www.courtlistener.com/api/rest/v4/clusters/9832777/"],"audio_files":[],"assigned_to":"https://www.courtlistener.com/api/rest/v4/people/2375/","referred_to":"https://www.courtlistener.com/api/rest/v4/people/9412/","bankruptcy_information":null,"absolute_url":"/docket/67087941/smith-v-bradford/","date_created":"2023-03-24T08:11:35.414410-07:00","date_modified":"2025-05-13T22:33:04.197375-07:00","source":1,"appeal_from_str":"","assigned_to_str":"Gloria M. Navarro","referred_to_str":"Brenda Weksler","panel_str":"","date_last_index":"2023-04-02T20:38:38.803022-07:00","date_cert_granted":null,"date_cert_denied":null,"date_argued":null,"date_reargued":null,"date_reargument_denied":null,"date_filed":"2023-03-23","date_terminated":"2023-05-23","date_last_filing":"2023-05-23","case_name_short":"","case_name":"Smith v. Bradford","case_name_full":"","slug":"smith-v-bradford","docket_number":"2:23-cv-00445","docket_number_core":"2300445","docket_number_raw":"2:23-cv-00445","docket_number_source":0,"federal_dn_office_code":"2","federal_dn_case_type":"cv","federal_dn_judge_initials_assigned":"GMN","federal_dn_judge_initials_referred":"BNW","federal_defendant_number":null,"pacer_case_id":"161419","cause":"28:1332 Diversity-Breach of Contract","nature_of_suit":"Stockholders Suits","jury_demand":"Plaintiff","jurisdiction_type":"Diversity","appellate_fee_status":"","appellate_case_type_information":"","mdl_status":"","filepath_ia":"","filepath_ia_json":"","ia_upload_failure_count":null,"ia_needs_upload":true,"ia_date_first_change":"2023-03-24T08:11:35.412729-07:00","date_blocked":null,"blocked":false,"appeal_from":null,"parent_docket":null,"tags":[],"panel":[]},"parties":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/parties/12475734/","id":12475734,"attorneys":[{"attorney":"https://www.courtlistener.com/api/rest/v4/attorneys/8338550/","attorney_id":8338550,"date_action":null,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","docket_id":67087941,"role":1}],"party_types":[{"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","docket_id":67087941,"name":"Nominal Defendant","date_terminated":null,"extra_info":"","highest_offense_level_opening":"","highest_offense_level_terminated":"","criminal_counts":[],"criminal_complaints":[]}],"date_created":"2023-03-30T20:58:22.229619-07:00","date_modified":"2023-03-30T20:58:22.229632-07:00","name":"Cleanspark,Inc","extra_info":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/parties/12475733/","id":12475733,"attorneys":[{"attorney":"https://www.courtlistener.com/api/rest/v4/attorneys/8338550/","attorney_id":8338550,"date_action":null,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","docket_id":67087941,"role":1}],"party_types":[{"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","docket_id":67087941,"name":"Defendant","date_terminated":null,"extra_info":"","highest_offense_level_opening":"","highest_offense_level_terminated":"","criminal_counts":[],"criminal_complaints":[]}],"date_created":"2023-03-30T20:58:22.213744-07:00","date_modified":"2023-03-30T20:58:22.213757-07:00","name":"Thomas L. 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Beynon","extra_info":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/parties/12475730/","id":12475730,"attorneys":[{"attorney":"https://www.courtlistener.com/api/rest/v4/attorneys/8338550/","attorney_id":8338550,"date_action":null,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","docket_id":67087941,"role":1}],"party_types":[{"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","docket_id":67087941,"name":"Defendant","date_terminated":null,"extra_info":"","highest_offense_level_opening":"","highest_offense_level_terminated":"","criminal_counts":[],"criminal_complaints":[]}],"date_created":"2023-03-30T20:58:22.163140-07:00","date_modified":"2023-03-30T20:58:22.163151-07:00","name":"S Matthew Schultz","extra_info":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/parties/12475729/","id":12475729,"attorneys":[{"attorney":"https://www.courtlistener.com/api/rest/v4/attorneys/8338550/","attorney_id":8338550,"date_action":null,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","docket_id":67087941,"role":1}],"party_types":[{"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","docket_id":67087941,"name":"Defendant","date_terminated":null,"extra_info":"","highest_offense_level_opening":"","highest_offense_level_terminated":"","criminal_counts":[],"criminal_complaints":[]}],"date_created":"2023-03-30T20:58:22.145658-07:00","date_modified":"2023-03-30T20:58:22.145670-07:00","name":"Lori L. Love","extra_info":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/parties/12475728/","id":12475728,"attorneys":[{"attorney":"https://www.courtlistener.com/api/rest/v4/attorneys/8338550/","attorney_id":8338550,"date_action":null,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","docket_id":67087941,"role":1}],"party_types":[{"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","docket_id":67087941,"name":"Defendant","date_terminated":null,"extra_info":"","highest_offense_level_opening":"","highest_offense_level_terminated":"","criminal_counts":[],"criminal_complaints":[]}],"date_created":"2023-03-30T20:58:22.116453-07:00","date_modified":"2023-03-30T20:58:22.116468-07:00","name":"Zachary K. Bradford","extra_info":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/parties/12475727/","id":12475727,"attorneys":[{"attorney":"https://www.courtlistener.com/api/rest/v4/attorneys/8338549/","attorney_id":8338549,"date_action":null,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","docket_id":67087941,"role":2},{"attorney":"https://www.courtlistener.com/api/rest/v4/attorneys/8338549/","attorney_id":8338549,"date_action":null,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","docket_id":67087941,"role":1},{"attorney":"https://www.courtlistener.com/api/rest/v4/attorneys/8338549/","attorney_id":8338549,"date_action":null,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","docket_id":67087941,"role":4}],"party_types":[{"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","docket_id":67087941,"name":"Plaintiff","date_terminated":null,"extra_info":"on behalf of\nCleanspark, Inc,","highest_offense_level_opening":"","highest_offense_level_terminated":"","criminal_counts":[],"criminal_complaints":[]}],"date_created":"2023-03-30T20:58:22.084405-07:00","date_modified":"2023-03-30T20:58:22.084420-07:00","name":"Brandon Smith","extra_info":""}],"entries":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/331952276/","id":331952276,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/338246663/","id":338246663,"tags":[],"absolute_url":"/docket/67087941/23/smith-v-bradford/","date_created":"2023-05-24T11:10:03.322414-07:00","date_modified":"2024-11-19T05:58:28.470365-08:00","sha1":"19ad98521d51eb31cd4b28b0b4157870e56ab38a","page_count":14,"file_size":203131,"filepath_local":"recap/gov.uscourts.nvd.161419/gov.uscourts.nvd.161419.23.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nvd.161419/gov.uscourts.nvd.161419.23.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 2:23-cv-00445-GMN-BNW Document 23 Filed 05/23/23 Page 1 of 14\n\n\n\n\n 1 UNITED STATES DISTRICT COURT\n 2 DISTRICT OF NEVADA\n 3\n BRANDON SMITH, )\n 4 )\n Plaintiff, ) Case No.: 2:23-cv-00445-GMN-BNW\n 5\n vs. )\n 6 ) ORDER\n ZACHARY K. BRADFORD, et al., )\n 7 )\n Defendants. )\n 8 )\n 9 )\n\n10 Pending before the Court is Plaintiff Brandon Smith\u2019s (\u201cPlaintiff\u201d) Motion to Remand,\n11 (ECF No. 10). Defendants Roger P. Benyon, Zachary K. Bradford, Lori L. Love, Larry\n12 McNeil, Matthew S. Schultz, Amer Tadayon, Thomas L. Wood, and nominal defendant\n13 CleanSpark, Inc. (\u201cDefendants\u201d) filed a Response, (ECF No. 17), to which Plaintiff filed a\n14 Reply, (ECF No. 20).\n15 For the reasons discussed below, the Court GRANTS Plaintiff\u2019s Motion to Remand.\n16 I. BACKGROUND\n17 This is a shareholder derivative action removed from state court. This action is one of\n18 four related cases pending before the Court, in addition to a separate federal securities class\n19 action pending before the United States District Court for the Southern District of New York.1\n20 See Ciceri v. Bradford et al., No. 2:21-cv-01004-GMN-BNW; Perna v. Bradford, et al., No.\n21 2:21-cv-01181-GMN-BNW; Iraci v. Bradford et al., No. 2:23-cv-00315; Atanasoff v. Bradford,\n22 et al., No. 2:23-cv-00358-ART-BNW; Bishins v. CleanSpark, Inc. et al., No. 1:21-cv-00511-\n23\n\n24\n 1\n25 There are pending motions to remand in two of the related actions before this Court. (See Mot. Remand, ECF\n No. 16 in Iraci, No. 2:23-cv-00315-JAD-NJK); (Mot. Remand, ECF No. 11 in Atanasoff, No. 2:23-cv-00358-\n ART-BNW).\n\n Page 1 of 14\n\f Case 2:23-cv-00445-GMN-BNW Document 23 Filed 05/23/23 Page 2 of 14\n\n\n\n\n 1 LAP. A fifth shareholder derivative action was recently remanded from this Court to state\n 2 court for lack of subject matter jurisdiction. See France v. Bradford et al., No. 2:23-cv-00444-\n 3 GMN-NJK.\n 4 Plaintiff is a current and continuous holder of nominal defendant CleanSpark\n 5 (\u201cCleanSpark\u201d) common stock since at least June 27, 2020. (Compl. \u00b6 15, Ex. A to Pet.\n 6 Removal, ECF No. 1-1). Defendants are a group of individuals who served in leadership\n 7 positions at CleanSpark, including its CEO, President, CFO, Company Director, Chairman of\n 8 the Board, and Chair of the Audit Committee. 2 (Id. \u00b6\u00b6 17\u201322, Ex. A to Pet. Removal). By\n 9 virtue of their positions, Plaintiff alleges that Defendants \u201cowed [CleanSpark] and its\n10 stockholders the fiduciary obligations of trust, loyalty, good faith, and due care, and were and\n11 are required to use their utmost ability to control and manage [CleanSpark] in a fair, just,\n12 honest, and equitable manner.\u201d (Id. \u00b6 24, Ex. A to Pet. Removal).\n13 According to Plaintiff, CleanSpark was an energy company that provided advanced\n14 energy market communications and management solutions. (Id. \u00b6 2, Ex. A to Pet. Removal). In\n15 its 10-K Form filed with the United States Securities and Exchange Commission (\u201cSEC\u201d) on\n16 December 17, 2020, CleanSpark stated it was \u201cin the business of providing advanced software\n17 technology to solve modern energy challenges\u201d concerning energy market communications and\n18 management. (Id. \u00b6 29, Ex. A to Pet. Removal). However, in its 10-K Form filed almost a year\n19 later on December 14, 2021, CleanSpark now described itself as \u201ca leading bitcoin mining and\n20\n 2\n21 The exact position(s) allegedly held by each of the Defendants is as follows. Defendant Zachary K. Bradford\n (\u201cDefendant Bradford\u201d) served as CleanSpark\u2019s CFO from March 2014 until October 2019, before becoming its\n22 President and CEO in October 2019. (Id. \u00b6 17, Ex. A to Pet. Removal). Defendant Lori L. Love (\u201cDefendant\n Love\u201d) served as CleanSpark\u2019s CFO since October 2019. (Id. \u00b6 18, Ex. A to Pet. Removal). Defendant Matthew\n23 S. Schultz (\u201cDefendant Schultz\u201d) served as CleanSpark\u2019s CEO from 2014 through October 2019, before\n becoming its Executive Chairman of the Board in October 2019. (Id. \u00b6 19, Ex. A to Pet. Removal). Defendant\n24 Larry McNeil (\u201cDefendant McNeil\u201d) served as CleanSpark\u2019s Company Director and Chairman of the Board. (Id.\n \u00b6 21, Ex. A to Pet. Removal). Defendant Thomas L. Wood (\u201cDefendant Wood\u201d) served as CleanSpark\u2019s\n25 Chairman of the Board and Audit Committee prior to becoming a Company Director. (Id. \u00b6 22, Ex. A to Pet.\n Removal). Lastly, Defendant Roger P. Benyon served as a Company Director and Chair of the Audit\n Committee. (Id. \u00b6 20, Ex. A to Pet. Removal).\n\n Page 2 of 14\n\f Case 2:23-cv-00445-GMN-BNW Document 23 Filed 05/23/23 Page 3 of 14\n\n\n\n\n 1 diversified energy company.\u201d (Id. \u00b6 30, Ex. A to Pet. Removal). In keeping with this\n 2 transformation, Defendant Bradford stated during a conference call on December 14, 2021, that\n 3 \u201cCleanSpark is a bitcoin miner. Bitcoin mining is our primary business segment in terms of\n 4 revenue. Our most efficient in terms of cost and margin and our most important in terms of\n 5 maximizing value for our shareholders.\u201d (Id. \u00b6 31, Ex. A to Pet. Removal)\n 6 Plaintiff alleges this shift in focus began a year prior, around December 20, 2020, when\n 7 CleanSpark announced its acquisition of ATL Data Centers, Inc. (\u201cATL\u201d), a traditional data\n 8 center and bitcoin mining operation. (Id. \u00b6 38, Ex. A to Pet. Removal). Plaintiff asserts that\n 9 Defendants represented their plan was to turn ATL into a \u201cprofitable, full-scale demonstration\n10 facility\u201d to demonstrate the value of CleanSpark\u2019s software technologies. (Id. \u00b6 39, Ex. A to\n11 Pet. Removal). Defendants alleged goal was to improve the ATL facility by expanding its\n12 power capacity to increase its bitcoin mining operations. (Id. \u00b6\u00b6 38\u201340, Ex. A to Pet. Removal).\n13 Defendants originally estimated this expansion was to be completed by April 2021. (Id. \u00b6 39,\n14 Ex. A to Pet. Removal).\n15 Defendants purportedly engaged in \u201cextensive due diligence on ATL[]\u201d which\n16 culminated in their conclusion that ATL was \u201ca perfect fit\u201d to layer CleanSpark\u2019s microgrid\n17 technology on top of ATL\u2019s existing mining operation. (Id. \u00b6 5, Ex. A to Pet. Removal).\n18 Defendant Bradford was quoted as saying that the acquisition was made \u201c[a]fter an in-depth\n19 examination of the profitability under [ATL\u2019s] existing energy structure . . . .\u201d (Id. \u00b6 41, Ex. A\n20 to Pet. Removal). CleanSpark\u2019s stock price experienced an increase in value both following its\n21 acquisition announcement, and after a statement issued on January 5, 2021, stating that the\n22 ATL expansion would be completed \u201cin the coming weeks.\u201d (Id. \u00b6\u00b6 44\u201348, Ex. A to Pet.\n23 Removal).\n24 On January 14, 2021, shortly after the acquisition of ATL was announced, short-seller\n25 Culper Research published a report claiming ATL was effectively the rebranded assets of a\n\n\n Page 3 of 14\n\f Case 2:23-cv-00445-GMN-BNW Document 23 Filed 05/23/23 Page 4 of 14\n\n\n\n\n 1 now-defunct company known as Virtual Citadel, Inc. which had gone bankrupt in 2020, and\n 2 several months earlier, ATL was almost purchased by a public bitcoin company known as\n 3 Marathon Patent Group (\u201cMarathon\u201d), but Marathon pulled out after discovering adverse\n 4 information about ATL during the due diligence process. (Id. \u00b6\u00b6 6, 48\u201350, Ex. A to Pet.\n 5 Removal). The Culper Research Report also alleged CleanSpark made misleading statements\n 6 or omitted material information in previously undisclosed transactions. (Id. \u00b6 51, Ex. A to Pet.\n 7 Removal). Following the publication of this report, CleanSpark\u2019s stock price rapidly fell,\n 8 severely damaging investors. (Id. \u00b6 57, Ex. A to Pet. Removal). Defendants subsequently\n 9 issued a press release, arguing that Culper Research issued a \u201creport making false accusation[s]\n10 against CleanSpark and its officers[.]\u201d (Id. \u00b6 58, Ex. A to Pet. Removal).\n11 Further damaging CleanSpark\u2019s share price was the newfound delay in completing the\n12 ATL expansion project. Although Defendants originally \u201cstated that the planned expansion of\n13 the power capacity at the [ATL] facility . . . was expected to be complete by April 2021,\u201d they\n14 would later \u201cissue[] periodic revisions of the project[.]\u201d (Id. \u00b6\u00b6 83\u201384, Ex. A to Pet. Removal).\n15 First, on February 12, 2021, Defendants acknowledged that the expansion would not be\n16 completed until sometime in the \u201cmid-year 2021.\u201d (Id. \u00b6 90, Ex. A to Pet. Removal). Next on\n17 18, 2021, Defendant Bradford stated to investors that the expansion project would not be\n18 completed until \u201cmid-summer.\u201d (Id. \u00b6\u00b6 93\u201394, Ex. A to Pet. Removal). On March 2, 2021,\n19 CleanSpark issued a press statement which mentioned that the new deadline was to complete\n20 the project sometime \u201cthis summer.\u201d (Id. \u00b6 95, Ex. A to Pet. Removal). Plaintiff alleges that all\n21 the projected completion dates were materially false and misleading. (Id. \u00b6 96, Ex. A to Pet.\n22 Removal).\n23 On March 15, 2021, Plaintiff alleges Defendants announced CleanSpark would offer a\n24 $200 million underwritten public offering of 9,090,910 shares of common stock to fund, in\n25 part, the buildout of the ATL facility. (Id. \u00b6 97, Ex. A to Pet. Removal). Plaintiff asserts this\n\n\n Page 4 of 14\n\f Case 2:23-cv-00445-GMN-BNW Document 23 Filed 05/23/23 Page 5 of 14\n\n\n\n\n 1 announcement revealed CleanSpark \u201cwould need significant additional capital to complete the\n 2 expansion project\u201d causing CleanSpark\u2019s stock value to fall. (Id. \u00b6 98, Ex. A to Pet. Removal).\n 3 In April and May 2021, Defendants issued press releases projecting the ATL expansion project\n 4 to be completed sometime in the summer 2021. (Id. \u00b6 101, Ex. A to Pet. Removal). Plaintiff\n 5 maintains these projected completion dates were materially false and misleading. (Id. \u00b6 102, Ex.\n 6 A to Pet. Removal).\n 7 On June 18, 2021, Culper Research issued a follow up report revealing \u201cmaterial risks\n 8 concerning the accuracy of CleanSpark\u2019s financial reporting and the current and future costs\n 9 associated with CleanSpark\u2019s [b]itcoin mining business.\u201d (Id. \u00b6 106, Ex. A to Pet. Removal);\n10 (see id. \u00b6\u00b6 103\u201307, Ex. A to Pet. Removal). This report caused a further decline in\n11 CleanSpark\u2019s share value. (Id. \u00b6 107, Ex. A to Pet. Removal). Over the next several months,\n12 Defendants allegedly made a series of disclosed acquisitions to expedite the ATL expansion\n13 project, but by December 2021, the project was still not completed. (Id. \u00b6\u00b6 108\u201321, Ex. A to\n14 Pet. Removal).\n15 In addition to these disclosed transactions, Defendants purportedly \u201cpermitted and/or\n16 caused various related party transactions . . . to occur between CleanSpark and various senior\n17 officers and/or directors.\u201d (Id. \u00b6 122, Ex. A to Pet. Removal). This included CleanSpark\n18 entering an agreement with p2k that was not disclosed as a related party transaction despite\n19 Defendant Love, CleanSpark\u2019s CFO, serving as an officer at p2K. (Id. \u00b6 122, Ex. A to Pet.\n20 Removal). Following this transaction, CleanSpark entered into an agreement with an existing\n21 client known as LAWCLERK, which was also not disclosed as a related party transaction even\n22 though Amer Tadayon, CleanSpark\u2019s CRO, was listed as LAWCLERK\u2019s Chief Product\n23 Officer. (Id. \u00b6 123, Ex. A to Pet. Removal). Finally, Defendants, through CleanSpark, \u201calso\n24 [allegedly] engaged in several dubious\u201d related party transactions with insiders at CleanSpark.\n25 (Id. \u00b6 125, Ex. A to Pet. Removal). Plaintiff asserts these related party transactions \u201craise\n\n\n Page 5 of 14\n\f Case 2:23-cv-00445-GMN-BNW Document 23 Filed 05/23/23 Page 6 of 14\n\n\n\n\n 1 serious red flags as to whether certain of [CleanSpark\u2019s] officers and directors\u201d used their\n 2 position to enrich themselves. (Id. \u00b6 126, Ex. A to Pet. Removal)\n 3 Plaintiff filed the present Complaint in the Eighth Judicial Court of Nevada asserting the\n 4 following causes of action: (1) breach of fiduciary duty, and (2) unjust enrichment. (Id. \u00b6\u00b6 160\u2013\n 5 203, Ex. A to Pet. Removal). On March 23, 2023, Defendants removed this action to federal\n 6 court based on federal question jurisdiction. (See generally Pet. Removal, ECF No. 1). Plaintiff\n 7 now seeks to remand to state court. (See generally Mot. Remand, ECF No. 10).\n 8 II. LEGAL STANDARD\n 9 Federal courts are courts of limited jurisdiction, possessing only those powers granted by\n10 the Constitution and by statute. See United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008).\n11 \u201cIt is to be presumed that a cause lies outside this limited jurisdiction, and the burden of\n12 establishing the contrary rests upon the party asserting jurisdiction.\u201d Id. (internal citations\n13 omitted). \u201cThe \u2018strong presumption against removal jurisdiction means that the defendant has\n14 the burden of establishing that removal is proper,\u2019 and the court resolves all ambiguity in favor\n15 of remand to state court.\u201d Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009)\n16 (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)).\n17 Pursuant to 28 U.S.C. \u00a7 1441(a) provides for removal of a civil action from state to\n18 federal court if the case could have originated in federal court. Under 28 U.S.C. \u00a7 1331, a\n19 federal district court has jurisdiction over cases \u201carising under the Constitution, laws, or treaties\n20 of the United States.\u201d \u201cThe presence or absence of federal-question jurisdiction is governed by\n21 the \u2018well-pleaded complaint rule,\u2019 which provides that federal jurisdiction exists only when a\n22 federal question is presented on the face of the plaintiff\u2019s properly pleaded complaint.\u201d\n23 Caterpillar Inc. v. Williams, 482 U.S. 386, 388 (1987).\n24 \u201c[A] case can \u2018aris[e] under\u2019 federal law in two ways. Most directly, a case arises under\n25 federal law when federal law creates the cause of action asserted.\u201d Gunn v. Minton, 568 U.S.\n\n\n Page 6 of 14\n\f Case 2:23-cv-00445-GMN-BNW Document 23 Filed 05/23/23 Page 7 of 14\n\n\n\n\n 1 251, 257 (2013). Alternatively, \u201cwhen \u2018a claim finds its origins\u2019 in state law, there is \u2018a special\n 2 and small category of cases in which arising under jurisdiction still lies.\u2019\u201d Merrill Lynch,\n 3 Pierce, Fenner & Smith, Inc. v. Manning, 578 U.S. 374, 383 (2016) (quoting Gunn v. Minton,\n 4 568 U.S. 251, 258 (2013)). In Grable, the Supreme Court stated that \u201cfederal jurisdiction over\n 5 a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3)\n 6 substantial, and (4) capable of resolution in federal court without disrupting the federal-state\n 7 balance approved by Congress.\u201d Gunn, 568 U.S. at 528 (citing Grable & Sons Metal Prods.,\n 8 Inc. v. Darue Eng\u2019g & Mfg., 545 U.S. 308, 313\u201314 (2005)).\n 9 III. DISCUSSION\n10 Plaintiff brings two causes of action, both under Nevada state law. Thus, the question is\n11 whether Plaintiff\u2019s Complaint, specifically his references to federal law and regulations in\n12 pleading Defendants\u2019 alleged conduct, nevertheless confers this Court with federal jurisdiction\n13 under the Grable doctrine.3 For the reasons set forth below, the Court finds that it does not.\n14 Beginning with the first factor, Plaintiff argues that a federal issue is not \u201cnecessarily\n15 raised\u201d because his claims are predicated on Nevada state law, and only reference violations of\n16 federal law as an alternative basis for his state law claims. (Mot. Remand 6:18\u201315:14, ECF No.\n17 10); (Reply 4:1\u20138:12, ECF No. 20). In response, Defendants maintain that a federal issue is\n18 necessarily raised because Plaintiff\u2019s Complaint expressly invokes federal law and the\n19 determination of Plaintiff\u2019s claims require interpretation of federal law. 4 (Resp. 14:1\u201320:6, ECF\n20 No. 17).\n21\n\n22 3\n Defendants do not contend this Court has diversity jurisdiction, (see generally Resp., ECF No. 17); (Pet.\n23 Removal), leaving the only issue before the Court whether it has federal question jurisdiction.\n 4\n Defendants also emphasize the fact that Plaintiff\u2019s Complaint mimics the language of the plaintiff\u2019s complaint\n24 in an earlier filed action pending before the Court. (Resp. 6:13\u201311:15); (see Compl., ECF No. 1 in Ciceri, No.\n 2:21-cv-01004-GMN-BNW). According to Defendants, because the instant Complaint allegedly mirrors the\n25 language and factual allegations of a federal action already pending before this Court, this case should be\n accepted and consolidated. This exact argument was rejected by the United States District Court for the\n Southern District of New York in Flynn ex rel. Moody\u2019s Corp. v. McDaniel. 689 F. Supp. 2d 686 (S.D.N.Y.\n\n Page 7 of 14\n\f Case 2:23-cv-00445-GMN-BNW Document 23 Filed 05/23/23 Page 8 of 14\n\n\n\n\n 1 Several courts have considered similar scenarios to the one before this Court, where\n 2 allegations for claims such as fraud, breach of fiduciary duty, unjust enrichment, and corporate\n 3 waste in securities cases were solely alleged as state law causes of action, despite the fact that\n 4 federal securities law was implicated and potentially consulted for the plaintiff(s) to prove their\n 5 claims. These courts uniformly found that federal law did not confer federal question\n 6 jurisdiction. See Randolph v. Forsee, No. 10-cv-2445, 2010 WL 5148293 (D. Kan. Dec. 13,\n 7 2010); Flynn ex rel. Moody\u2019s Corp., 689 F. Supp. 2d at 686; In re The Reserve Fund Securities\n 8 and Derivative Litigation, Nos. 09-cv-2011, 09-cv782, 09-cv-3786, 2009 WL 3634085, at *7\n 9 (S.D.N.Y. Nov. 3, 2009); Ekas v. Burris, No. 07-cv-61156, 2007 WL 4055630 (S.D. Fla. Nov.\n10 14, 2007); Fagin v. Gilmartin, No. 03-cv-2631, 2007 WL 419286 (D.N.J. Feb. 1, 2007);\n11 Gargiulo v. Decker, No. 05-cv-00103, 2015 WL 755771 (C.D. Cal. Mar. 30, 2005); In re\n12 Textainer P\u2019Ship Secs. Litig., No. 05-cv-0969, 2005 WL 1791559 (N.D. Cal. July 27, 2005).\n13 Ekas is particularly instructive. In Ekas, the plaintiffs filed a verified derivative\n14 complaint by shareholders on behalf of a nominal defendant against several members of its\n15 board of directors and executive officers for breach of fiduciary duties and unjust enrichment.\n16 Id. at *1\u20132. The plaintiffs argued that there was no federal question to support removal because\n17 their claims arose under state law. Id. The plaintiffs further contended that a complaint alleging\n18 state law claims based in part on false statements in documents required by federal securities\n19\n\n20\n\n21 2010). In Flynn, the court disagreed with the defendants\u2019 blanket contention that consolidation was warranted\n simply because the complaints contained similar language and several factual allegations, instead noting that the\n22 plaintiffs\u2019 claims turned exclusively on New York law and did not \u201crequire interpretation or application of\n federal securities law.\u201d Id. at 691. The invocation of mimicry is not enough to establish federal jurisdiction. See\n23 Valdez ex rel. Miller Entergy Resources, Inc. v. Miller, No. 3:11-cv-462, 2012 WL 397814, at *10 (E.D. Tenn.\n Jan. 20, 2012) (rejecting the defendants\u2019 argument that remand was improper because of the similarity to other\n24 cases pending before the court). Indeed, in the case referenced by Defendants, the plaintiff expressly pled a\n federal claim, thereby eliminating the present controversy raised by the parties regarding subject matter\n25 jurisdiction. (See Compl., ECF No. 1 in Ciceri, No. 2:21-cv-01004-GMN-BNW). Accordingly, the Court\n proceeds to resolve Plaintiff\u2019s Motion to Remand by examining whether the facts underlying a plaintiff\u2019s claims\n solely rest on the interpretation and application of federal law.\n\n Page 8 of 14\n\f Case 2:23-cv-00445-GMN-BNW Document 23 Filed 05/23/23 Page 9 of 14\n\n\n\n\n 1 law cannot be removed. Id. In opposition, the defendants claimed that, to adjudicate fully the\n 2 allegations in the complaint, the court would need to resolve multiple questions of federal law.\n 3 Id. at *4. The defendants pointed to various allegations in the complaint that they claimed\n 4 showed that the violations of law stemmed from the alleged failure of the defendants to have in\n 5 place a federally mandated control structure that ensured the accuracy of financial information\n 6 and compliance with GAAP. Id. Additionally, the defendants asserted that the plaintiffs had\n 7 sought to avoid federal question jurisdiction through artful pleading since it was actually\n 8 federal law, not state law, that provided the duties and obligations at issue. Id.\n 9 The Ekas court agreed with the plaintiffs and found that the plaintiffs\u2019 \u201cpassing\n10 references\u201d to federal law in the complaint were not essential to proving any of the elements of\n11 the state causes of action alleged therein. Id. The court found that, although the duty to comply\n12 with federal laws was one of many duties that were allegedly breached by the defendants, the\n13 \u201cgravamen\u201d of the breach of fiduciary duty rested upon the defendants \u201cknowingly approving\n14 the Company's violation of GAAP.\u201d Id. The court explained that, \u201c[c]learly, in proving that a\n15 breach of fiduciary duty occurred, [p]laintiffs may point to evidence that the officers and\n16 directors failed to act in good faith when they made false statements. But the fact that some of\n17 those false statements were made to the SEC and may have violated federal law [was]\n18 tangential to proving the breach of fiduciary duty.\u201d Id. at *4. The court found that adjudication\n19 of federal law would not be necessary because the complaint contained \u201c[a]llegations that\n20 simply provided a factual basis for a [state law or federal law] claim.\u201d Id. at *5.\n21 Although the defendants in Ekas made much of the fact that the complaint tracked the\n22 language of Section 13 of the Exchange Act, the court found that mere reference to federal\n23 securities law was insufficient and that such allegations were included in the complaint to\n24 simply set forth the various duties of the directors and officers of the defendants. Id. Thus, if\n25 those allegations were proven, they would provide evidence of the defendants\u2019 role in the\n\n\n Page 9 of 14\n\f Case 2:23-cv-00445-GMN-BNW Document 23 Filed 05/23/23 Page 10 of 14\n\n\n\n\n 1 company but would not require an examination of federal law. Id. In other words, the court\n 2 rejected the defendants' contention that it would \u201cneed to construe and interpret the Exchange\n 3 Act and Sarbanes\u2013Oxley [Act] and whether defendants violated provisions of those federal\n 4 laws.\u201d Instead, the court found that it only needed to examine evidence relating to the\n 5 defendants' maintenance of the accounting of the company and, while there might be\n 6 similarities to federal accounting requirements, that inquiry would not require the court to delve\n 7 into federal law. Ekas, at *5.\n 8 Applying Ekas and similar cases to the instant action, although Plaintiff is the \u201cmaster of\n 9 his complaint,\u201d the relevant inquiry is whether he crafted the complaint in such a way that it\n10 relied solely on state law. For example, if Plaintiff\u2019s Complaint explicitly pled violations of\n11 federal law as the basis for his claims, this action was properly removed to federal court for\n12 disposition, regardless of how the claims are labeled in the Complaint. However, if violations\n13 of federal securities law are an alternative way of proving the conduct, and instead merely\n14 provide a factual basis for Plaintiff\u2019s state claims, then references alone to federal law are\n15 insufficient to create federal jurisdiction. Thus, the Court is driven by the substance of the\n16 allegations underlying claim rather than its label.\n17 Returning to Defendants\u2019 argument, the Court disagrees with Defendants that Plaintiff\u2019s\n18 Complaint necessarily raises issues of federal law. (Resp. 14:1\u201320:6). Mere references to\n19 federal law are insufficient to create federal question jurisdiction. Gargiulo, 2005 WL 755771,\n20 at *2\u20133 (finding state law claim for breach of fiduciary duty raised no federal claim because\n21 \u201calthough the complaint discusses possible violations of federal securities law, such references\n22 are not \u2018essential elements\u2019 of any of [p]laintiff\u2019s state law claims\u201d); In re Textainer P\u2019Ship\n23 Secs. Litig., 2005 WL 1791559, at *8 (finding state law claim for breach of fiduciary duty\n24 raised no federal claim because such references were not an essential element of any of the\n25 plaintiff\u2019s state law claims); Emulex Corp. v. Broadcom Corp., No. 09-cv-0677, 2009 WL\n\n\n Page 10 of 14\n\f Case 2:23-cv-00445-GMN-BNW Document 23 Filed 05/23/23 Page 11 of 14\n\n\n\n\n 1 1872694, at *4 (C.D. Cal. June 29, 2009) (\u201cWhile Emulex\u2019s fraud claim may embrace a point\n 2 of federal securities law, federal law did not create Emulex\u2019s claim and is not essential in\n 3 determining whether Emulex has a right to relief.\u201d). And here, the gravamen of the misconduct\n 4 alleged by Plaintiff does not depend on the interpretation of federal securities law. See\n 5 Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 9 (1983) (stating that \u201c[w]e\n 6 have often held that a case \u2018arose under\u2019 federal law where the vindication of a right under state\n 7 law necessarily turned on some construction of federal law\u201d). Instead, it is premised on\n 8 whether Defendants violated a special duty of care governed by state law in the case of the\n 9 fiduciary duty claim, and whether they unduly benefited pursuant to the unjust enrichment\n10 claim. \u201cWhether federal securities laws were in fact violated is not a necessary element of\n11 determining whether Defendants\u2019 alleged mismanagement rose to the level of a breach of\n12 fiduciary duty[,]\u201d unjust enrichment, or corporate waste. Fagin, 2007 WL 419286, at *5.\n13 Defendants additionally argue that federal law is implicated because the allegedly false\n14 or misleading statements were made in SEC filings, press releases, and other public documents.\n15 (Resp. 15:8\u201316:25). However, this argument has been routinely rejected by district courts. See\n16 Randolph, 2010 WL 5148293, at *7 (\u201cLikewise, defendant\u2019s failure in this case to comply with\n17 federal rules by misrepresenting or omitting information on federally-required forms would\n18 simply provide some evidence of a breach, but the Court need not construe federal law in order\n19 for plaintiff to recover.\u201d); Ekas, 2007 WL 4055630, at *4 (\u201cClearly, in proving that a breach of\n20 fiduciary duty occurred, [p]laintiffs may point to evidence that he officers and directors failed\n21 to act in good faith when they made false statements. But the fact that some of the false\n22 statements were made to the SEC and may have violated federal law [was] tangential to\n23 proving the breach of fiduciary duty.\u201d); Fagin, 2007 WL 419286, at *4 (\u201cIn the Court\u2019s\n24 opinion, however, these factual predicates alleging that one component of the alleged\n25 wrongdoing was, in essence, making false filings with the SEC, do not transform the state\n\n\n Page 11 of 14\n\f Case 2:23-cv-00445-GMN-BNW Document 23 Filed 05/23/23 Page 12 of 14\n\n\n\n\n 1 claims into claims seeking redress for federal violations and do not raise a substantial and\n 2 disputed question of federal law.\u201d). Indeed, \u201cthe fact \u2018that the [allegedly false] statements were\n 3 made in a federally required document does not change the inquiry [into] whether, standing\n 4 alone, they were false or misleading . . . under state law.\u201d Flynn ex rel. Moody\u2019s Corp., 689 F.\n 5 Supp. 2d at 691 (quoting Sung v. Wasserstein, 415 F. Supp. 2d 393, 406 (S.D.N.Y. 2006); see\n 6 Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 813 (1986) (\u201cThe mere presence of a\n 7 federal issue in a state cause of action does not automatically confer federal-question\n 8 jurisdiction.\u201d). Again, the fact that Defendants\u2019 alleged misconduct tangentially implicates\n 9 federal law does not de facto cause federal law to predominate over Plaintiff\u2019s state law claims.\n10 See Merrell Dow Pharmaceuticals Inc., 478 U.S. at 807 (holding that reference to federal law\n11 merely as on available criterion for determining whether a violation of state law has occurred is\n12 insufficient to establish jurisdiction).\n13 Accordingly, the Court\u2019s analysis begins and ends with whether a federal issue is\n14 \u201cnecessarily raised\u201d by Plaintiff\u2019s Complaint. 5 Because Plaintiff\u2019s claims can be supported by\n15 alternative and independent theories not dependent on federal, federal question jurisdiction\n16 does not attach. See Rains v. Criterion Sys., Inc., 80 F.3d 339, 346 (9th Cir. 1996) (\u201cWhen a\n17 claim can be supported by alternative and independent theories\u2014one of which is a state law\n18\n\n19\n\n20\n 5\n Although the Court finds remand is appropriate because a federal issue is not necessarily raised, the Court\n21 additionally notes that this case also does not raise a substantial federal issue. Defendants\u2019 Response emphasizes\n the important federal interest in adjudicating securities litigation, (Resp. 11:22\u201312:12, 20:15\u201321:21), but\n22 \u201cCongress envisioned both federal and state courts adjudicating [securities] claims.\u201d In re The Reserve Fund\n Secs. and Derivative Litig., 2009 WL 3634085, at *7 (quotation omitted) (emphasis added). As the Supreme\n23 Court wrote in Matsushita Electric Indus. Corp. v. Epstein, \u201cCongress plainly contemplated the possibility of\n dual litigation in state and federal courts relating to securities transactions.\u201d 516 U.S. 367, 383 (1996).\n24 \u201cMoreover, the fact that a state law may claim may affect an important federal interest is not sufficient grounds\n upon which to base federal jurisdiction.\u201d In re The Reserve Fund Secs. and Derivative Litig., 2009 WL 3634085,\n25 at *7 (quotation omitted). Here, interpretation of federal securities law is not necessary to resolve the case.\n Plaintiff\u2019s state law claims stand on their own merit and therefore do not require resolution of a substantial,\n disputed question of federal law. See In re Textainer P\u2019Ship Secs. Litig., 2005 WL 1791559 at *8 n.8.\n\n Page 12 of 14\n\f Case 2:23-cv-00445-GMN-BNW Document 23 Filed 05/23/23 Page 13 of 14\n\n\n\n\n 1 theory and one of which is a federal law theory\u2014federal question jurisdiction does not attach\n 2 because federal law is not a necessary element of the claim.\u201d).\n 3 Finally, Plaintiff argues the Court should reward him costs and attorney\u2019s fees incurred\n 4 based on Defendants\u2019 improvident removal. (Mot. Remand 19:21\u201320:24). Title 28 U.S.C. \u00a7\n 5 1447 provides that, along with remanding the case to state court, this Court \u201cmay require the\n 6 payment of just costs and any actual expenses, including attorney fees, incurred as a result of\n 7 the removal.\u201d Absent unusual circumstances, courts may award attorney fees under the\n 8 attorney fee provision of the removal statute only where the removing party lacked an\n 9 objectively reasonable basis for seeking removal; conversely, where an objectively reasonable\n10 basis exists, fees should be denied. Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).\n11 An award of attorney\u2019s fees can be granted in the absence of bad faith regarding removal.\n12 Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1106 n.6 (9th Cir. 2000).\n13 \u201c[G]rappling with whether there is federal question jurisdiction when no federal cause of\n14 action appears on the face of plaintiff\u2019s well-pleaded complaint . . . is \u2018extremely complicated\n15 and the related jurisdictional issues are difficult to navigate.\u2019\u201d Sung, 2006 WL 435449, at *15\n16 (citation omitted). Although Defendants did not prevail in this action, the Court is unable to\n17 conclude their basis for removal was not \u201cobjectively reasonable\u201d in light of the complex area\n18 of law underlying their removal. Martin, 546 U.S. at 141. Therefore, a grant of attorney\u2019s fees\n19 is not appropriate here.\n20 ///\n21 ///\n22 ///\n23 ///\n24 ///\n25 ///\n\n\n Page 13 of 14\n\f Case 2:23-cv-00445-GMN-BNW Document 23 Filed 05/23/23 Page 14 of 14\n\n\n\n\n 1 IV. CONCLUSION\n 2 IT IS HEREBY ORDERED that Plaintiff\u2019s Motion to Remand, (ECF No. 10), is\n 3 GRANTED.\n 4 IT IS FURTHER ORDERED that the case be remanded to the Eighth Judicial District\n 5 Court. The Clerk of the Court shall remand this case back to state court and thereafter close\n 6 this Court\u2019s case.\n 7 IT IS FURTHER ORDERED that Defendants\u2019 Motion to Consolidate Cases, (ECF\n 8 No. 5), is DENIED as moot.\n 9 23 day of May, 2023.\n DATED this _____\n10\n\n11 ___________________________________\n12\n Gloria M. Navarro, District Judge\n UNITED STATES DISTRICT COURT\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n\n\n Page 14 of 14\n\f","ocr_status":2,"date_upload":"2023-05-25T01:28:10.462840-07:00","document_number":"23","attachment_number":null,"pacer_doc_id":"11509974832","is_available":true,"is_free_on_pacer":true,"is_sealed":null,"document_type":1,"description":"Order AND Order on Motion to Consolidate Cases AND Order on Motion to Remand to State Court","acms_document_guid":""}],"date_created":"2023-05-24T11:10:03.315884-07:00","date_modified":"2024-11-19T05:58:28.461442-08:00","date_filed":"2023-05-23","time_filed":"10:31:16","entry_number":23,"recap_sequence_number":"2023-05-24.001","pacer_sequence_number":77,"description":" ORDER. IT IS ORDERED that 10 Plaintiff's Motion to Remand, is GRANTED. IT IS FURTHER ORDERED that 5 Defendants' Motion to Consolidate Cases, is DENIED as moot. Signed by Judge Gloria M. Navarro on 5/23/2023. (Copies have been distributed pursuant to the NEF -cc: Certified Docket Sheet and Order sent to State Court - JQC)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/279764199/","id":279764199,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/285972465/","id":285972465,"tags":[],"absolute_url":"/docket/67087941/14/smith-v-bradford/","date_created":"2023-04-17T09:11:43.641917-07:00","date_modified":"2024-11-19T04:50:02.402675-08:00","sha1":"66e8369ae2322c188760eab07afa1703c6eab23e","page_count":3,"file_size":184766,"filepath_local":"recap/gov.uscourts.nvd.161419/gov.uscourts.nvd.161419.14.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nvd.161419/gov.uscourts.nvd.161419.14.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 2:23-cv-00445-GMN-BNW Document 14 Filed 04/16/23 Page 1 of 3\n\n\n\n 1 MARK J. CONNOT (10010)\n COLLEEN E. MCCARTY (13186)\n 2 FOX ROTHSCHILD LLP\n 1980 Festival Plaza Drive, Ste. 700\n 3 Las Vegas, NV 89135\n Telephone: 702.262.6899\n 4 Facsimile: 702.597.5503\n mconnot@foxrothschild.com\n 5 cmccarty@foxrothschild.com\n Counsel for Defendants Zachary K. Bradford, Lori L. Love,\n 6 S. Matthew Schultz, Robert P. Beynon, Larry McNeill, and\n Thomas L. Wood, and Nominal Defendant Cleanspark, Inc.\n 7\n\n 8 UNITED STATES DISTRICT COURT\n 9 DISTRICT OF NEVADA\n10\n BRANDON SMITH, Derivatively on Behalf Case No.: 2:23-cv-00445-GMN-BNW\n11 of CLEANSPARK, INC.,\n Plaintiff, (Removal from District Court, Clark County,\n12 Nevada, Case No. A-23-866051-C)\n v.\n13\n\n14 ZACHARY K. BRADFORD, LORI L. LOVE, JOINT STIPULATION AND ORDER\n S. MATTHEW SCHULTZ, LARRY ADJOURNING TIME TO RESPOND\n15 MCNEILL, THOMAS L. WOOD, and TO MOTION TO CONSOLIDATE\n ROGER P. BEYNON,\n16\n\n17 Defendants,\n18\n -and-\n19\n CLEANSPARK, INC., a Nevada Corporation,\n20\n Nominal Defendant.\n21\n\n22 Plaintiff Brandon Smith (\u201cPlaintiff\u201d), derivatively on behalf of Nominal Plaintiff\n23 CleanSpark, Inc. (\u201cCleanSpark\u201d) and Defendants Zachary K. Bradford, Lori L. Love, S.\n24 Matthew Schultz, Larry McNeill, Thomas L. Wood, Roger P. Beynon (the \u201cIndividual\n25 Defendants\u201d), and Nominal Defendant CleanSpark (together with the Individual Defendants,\n26 \u201cDefendants\u201d) (collectively, with Plaintiff, the \u201cParties\u201d), by and through their undersigned\n27 counsel, hereby enter into the following stipulation and proposed order:\n28 ///\n 1\n 144448618.1\n\f Case 2:23-cv-00445-GMN-BNW Document 14 Filed 04/16/23 Page 2 of 3\n\n\n\n 1 WHEREAS, on February 21, 2023, Plaintiff filed a shareholder derivative complaint (the\n\n 2 \u201cComplaint\u201d) on behalf of Nominal Plaintiff CleanSpark in the Eighth Judicial District Court of\n\n 3 the State of Nevada in and for Clark County (the \u201cState Court\u201d), captioned Smith v. Bradford, et\n\n 4 al., Case No. A-23-866051-C (this \u201cAction\u201d); and\n\n 5 WHEREAS, on March 23, 2023, the Individual Defendants filed a Petition for Removal\n\n 6 and Notice of Removal (Dkt. No. 1), removing this Action from State Court to the United States\n\n 7 District Court for the District of Nevada; and\n\n 8 WHEREAS, on March 24, 2023, the Individual Defendants filed a Motion to\n\n 9 Consolidate (Dkt. No. 5) asking the Court to consolidate this Action into the consolidated\n\n10 shareholder derivative action pending in the United States District Court for the District of\n\n11 Nevada, In re CleanSpark, Inc. Derivative Litigation, Case No. 2:21-cv-01181-GMN-BNW (the\n\n12 \u201cMotion to Consolidate\u201d); and\n\n13 WHEREAS, the Parties agree to extend the deadline for Plaintiff to oppose the Motion\n\n14 to Consolidate (Dkt. No. 6) until on or before April 17, 2023.\n\n15 NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by the Parties\n\n16 hereto, through their undersigned counsel, subject to the approval of the Court, as follows:\n\n17 1. Plaintiff\u2019s deadline to oppose the Motion to Consolidate is extended until on or\n\n18 before April 17, 2023.\n\n19 2. Other than as agreed herein, the Parties reserve all rights.\n\n20\n\n21 [Signatures on following page]\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n 2\n 144448618.1\n\f Case 2:23-cv-00445-GMN-BNW Document 14 Filed 04/16/23 Page 3 of 3\n\n\n\n 1\n DATED: April 6, 2023 DATED: April 6, 2023\n 2\n FOX ROTHSCHILD LLP MUEHLBAUER LAW OFFICE, LTD.\n 3\n\n 4 /s/Colleen E. McCarty /s/Andrew R. Muehlbauer\n MARK J. CONNOT (10010) ANDREW R. MUEHLBAUER\n 5 COLLEEN E. MCCARTY (13186) 7915 West Sahara Avenue, Suite 104\n 1980 Festival Plaza Drive, Ste. 700 Las Vegas, Nevada 89117\n 6 Las Vegas, NV 89135 andrew@mlolegal.com\n mconnot@foxrothschild.com Counsel for Plaintiff\n 7\n cmcarty@foxrothschild.com\n 8 Counsel for Defendants\n\n 9 IT IS SO ORDERED.\n\n10\n _____________________________________\n11\n UNITED STATES DISTRICT COURT JUDGE\n12\n DATED: ______________________\n April 16, 2023\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n 3\n 144448618.1\n\f","ocr_status":2,"date_upload":"2023-04-18T01:26:04.276866-07:00","document_number":"14","attachment_number":null,"pacer_doc_id":"11509922456","is_available":true,"is_free_on_pacer":true,"is_sealed":null,"document_type":1,"description":"Order AND Order on Stipulation","acms_document_guid":""}],"date_created":"2023-04-17T09:11:43.635555-07:00","date_modified":"2024-11-19T04:50:02.391700-08:00","date_filed":"2023-04-16","time_filed":"08:39:57","entry_number":14,"recap_sequence_number":"2023-04-17.001","pacer_sequence_number":51,"description":" ORDER Granting 11 Stipulation to Extend Deadline to Respond to 5 Motion to Consolidate Cases. Responses due by 4/17/2023. Signed by Judge Gloria M. Navarro on 4/16/2023. (Copies have been distributed pursuant to the NEF - KF)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/259588696/","id":259588696,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/265773024/","id":265773024,"tags":[],"absolute_url":"/docket/67087941/8/smith-v-bradford/","date_created":"2023-03-30T20:58:22.009343-07:00","date_modified":"2023-04-02T20:38:38.440819-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"8","attachment_number":null,"pacer_doc_id":"11509897041","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2023-03-30T20:58:21.999434-07:00","date_modified":"2023-04-02T20:38:38.431356-07:00","date_filed":"2023-03-28","time_filed":null,"entry_number":8,"recap_sequence_number":"2023-03-28.002","pacer_sequence_number":37,"description":"STIPULATION FOR EXTENSION OF TIME (First Request) by Defendants Roger P. Beynon, Zachary K. Bradford, Lori L. Love, Larry McNeill, S Matthew Schultz, Thomas L. Wood, Nominal Defendant Cleanspark,Inc. (McCarty, Colleen) (extend) (answer) (Entered: 03/28/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/259588695/","id":259588695,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/265773023/","id":265773023,"tags":[],"absolute_url":"/docket/67087941/7/smith-v-bradford/","date_created":"2023-03-30T20:58:21.988377-07:00","date_modified":"2023-04-02T20:38:38.418431-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"7","attachment_number":null,"pacer_doc_id":"11509896881","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2023-03-30T20:58:21.978464-07:00","date_modified":"2023-04-02T20:38:38.408502-07:00","date_filed":"2023-03-28","time_filed":null,"entry_number":7,"recap_sequence_number":"2023-03-28.001","pacer_sequence_number":34,"description":"CIVIL COVER SHEET to 1 Petition for Removal,, by Defendants Roger P. Beynon, Zachary K. Bradford, Lori L. Love, Larry McNeill, S Matthew Schultz, Thomas L. Wood, Nominal Defendant Cleanspark,Inc. (McCarty, Colleen) (Entered: 03/28/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/259588694/","id":259588694,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/265773022/","id":265773022,"tags":[],"absolute_url":"/docket/67087941/6/smith-v-bradford/","date_created":"2023-03-30T20:58:21.967568-07:00","date_modified":"2023-04-02T20:38:38.395538-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"6","attachment_number":null,"pacer_doc_id":"11509894707","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2023-03-30T20:58:21.957644-07:00","date_modified":"2023-04-02T20:38:38.386514-07:00","date_filed":"2023-03-27","time_filed":null,"entry_number":6,"recap_sequence_number":"2023-03-27.001","pacer_sequence_number":32,"description":"CERTIFICATE of Interested Parties by Roger P. Beynon, Zachary K. Bradford, Cleanspark,Inc, Lori L. Love, Larry McNeill, S Matthew Schultz, Thomas L. Wood. There are no known interested parties other than those participating in the case. (McCarty, Colleen) (Entered: 03/27/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/259588693/","id":259588693,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/265773021/","id":265773021,"tags":[],"absolute_url":"/docket/67087941/5/smith-v-bradford/","date_created":"2023-03-30T20:58:21.947190-07:00","date_modified":"2023-04-03T02:05:35.053381-07:00","sha1":"149726a238aff27b9ac6d242025960e347102138","page_count":9,"file_size":271202,"filepath_local":"recap/gov.uscourts.nvd.161419/gov.uscourts.nvd.161419.5.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nvd.161419/gov.uscourts.nvd.161419.5.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 2:23-cv-00445-GMN-BNW Document 5 Filed 03/24/23 Page 1 of 9\n\n\n\n 1 MARK J. CONNOT (10010)\n COLLEEN E. MCCARTY (13186)\n 2 FOX ROTHSCHILD LLP\n 1980 Festival Plaza Drive, Ste 700\n 3 Las Vegas, NV 89135\n Telephone: 702.262.6899\n 4 Facsimile: 702.597.5503\n mconnot@foxrothschild.com\n 5 cmccarty@foxrothschild.com\n Counsel for Defendants Zachary K. Bradford,\n 6 Lori L. Love, S. Matthew Schultz, Roger P. Beynon,\n Larry McNeill, Thomas L. Wood, Amer Tadayon, and\n 7 Nominal Defendant CleanSpark Inc.\n 8\n\n 9 UNITED STATES DISTRICT COURT\n10 DISTRICT OF NEVADA\n11 IN RE CLEANSPARK, INC. DERIVATIVE Case No.: 2:21-cv-01004-GMN-BNW\n LITIGATION,\n12 Consolidated with:\n Case No.: 2:21-cv-01181-GMN-BNW\n13 This Document Relates to:\n Pending Consolidation with:\n14 ALL ACTIONS Case No. 2:23-cv-00358-ART-BNW\n Case No. 2:23-cv-00315-JAD-NJK\n15 Case No. 2:23-cv-00444-GMN-NJK and\n Case No. 2:23-cv-00445-GMN-BNW\n16\n\n17\n DEFENANTS\u2019 MOTION TO\n18 CONSOLIDATE\n\n19 Defendants Zachary K. Bradford (\u201cBradford\u201d), S. Matthew Schultz (\u201cSchultz\u201d), Roger P.\n20 Beynon (\u201cBeynon\u201d), Lori L. Love (\u201cLove\u201d), Larry McNeill (\u201cMcNeill\u201d) Thomas L. Wood\n21 (\u201cWood\u201d), and Amer Tadayon (\u201cTadayon\u201d) (collectively, \u201cIndividual Defendants\u201d) and nominal\n22 Defendant CleanSpark, Inc. (\u201cCleanSpark\u201d and with the Individual Defendants, \u201cDefendants\u201d)\n23 hereby move this Honorable Court under Federal Rule of Civil Procedure 42(a)(2) of the Federal\n24 Rules of Civil Procedure (\u201cFRCP\u201d) and the Joint Stipulation and Order Consolidating Related\n25 Action and Appointing Co-Lead Counsel (Dkt. No. 10) (\u201cConsolidation Order\u201d) for an Order\n26 consolidating the matters styled Iraci v. Bradford, et al., Case No. 2:23-cv-00315-JAD-NJK\n27 (\u201cIraci Matter\u201d), Atanasoff v. Bradford, et al. Case No. 2:23-cv-00358-ART-BNW (\u201cAtanasoff\n28 Matter\u201d), Smith v. Bradford, et al., Case No. 2:23-cv-00445-GMN-BNW (\u201cSmith Matter\u201d), and\n\n\n 144042733.1\n\f Case 2:23-cv-00445-GMN-BNW Document 5 Filed 03/24/23 Page 2 of 9\n\n\n\n 1 France v. Bradford, et al., Case No. 2:23-cv-00444-GMN-NJK (\u201cFrance Matter\u201d and\n 2 collectively with the Iraci, Atanasoff, and Smith Matters, \u201cSubsequent Related Actions\u201d) with\n 3 the first filed shareholder derivative action filed on behalf of CleanSpark, styled In re CleanSpark\n 4 Inc. Derivative Litigation, Case No. 2:21-cv-01004-GMN-BNW (\u201cConsolidated Action\u201d),\n 5 (previously consolidated with Case No. 2:21-cv-01181-GMW-BNW). The Subsequent Related\n 6 Actions share common questions of law and fact with the Consolidated Action and the separately\n 7 filed proceedings can and should be considered together as a matter of convenience and judicial\n 8 and party economy.\n 9 This Motion to Consolidate is made and based on the following Memorandum of Points\n10 and Authorities; the pleadings and papers on file herein, and any oral argument the Court may\n11 permit at a hearing of this matter.\n12 DATED: March 24, 2023 FOX ROTHSCHILD LLP\n13\n /s/ Colleen E. McCarty\n14 MARK J. CONNOT (10010)\n COLLEEN E. MCCARTY (13186)\n15 1980 Festival Plaza Drive, Ste. 700\n Las Vegas, NV 89135\n16 Telephone: 702.262.6899\n Facsimile: 702.597.5503\n17 mconnot@foxrothschild.com\n cmccarty@foxrothschild.com\n18 Counsel for Defendants Zachary K.\n Bradford, S. Matthew Schultz, Lori L.\n19 Love, Robert P. Beynon, Larry McNeill,\n Thomas L. Wood, Amer Tadayon, and\n20 Nominal Defendant Cleanspark, Inc.\n21\n\n22 MEMORANDUM OF POINTS AND AUTHORITIES\n23 I.\n24 INTRODUCTION\n25 Defendants respectfully request the Court continue its consolidation efforts in this matter\n26 by further ordering consolidation with the instant Consolidated Action the four recently filed\n27 actions noted above, the Iraci Matter pending before the Honorable Jennifer A. Dorsey, the\n28 Atanasoff Matter, pending before the Honorable Anne R. Traum, and the France and Smith\n Page 2\n\n 144042733.1\n\f Case 2:23-cv-00445-GMN-BNW Document 5 Filed 03/24/23 Page 3 of 9\n\n\n\n 1 Matters, pending before this Court. In addition to these cases involving identical and/or\n 2 overlapping factual and legal issues, events, and questions of law, and defendants, as well as\n 3 duplicative claims, the Consolidation Order (Dkt. No. 10) entered by this Court, requires that all\n 4 related shareholder derivative actions \u2013 which inarguably include the Subsequent Related\n 5 Actions \u2013 be further consolidated with the Consolidated Action.\n 6 As even a cursory review of the operative complaints makes clear, all of the claims at\n 7 issue are premised on allegedly false or misleading statements or omissions made by virtually\n 8 identical parties 1 related to CleanSpark\u2019s acquisition of ATL Data Centers. These are the very\n 9 same allegations that make up the subject matter of the Consolidated Action currently before this\n10 Court. For these reasons, Defendants respectfully request, pursuant to FRCP 42 and the\n11 Consolidation Order, that the Subsequent Related Actions be consolidated with the Consolidated\n12 Action for all purposes, which will benefit both the Court and the parties.\n13 FACTUAL BACKGROUND AND PROCEDURAL POSTURE\n14 On May 26, 2021, plaintiff Andrea Ciceri filed a shareholder derivative action herein on\n15 behalf of CleanSpark, captioned Ciceri v. Bradford, et al., Case No. 2:21-cv-01004-GMN-BNW\n16 (Dkt. No. 1) (the \u201cCiceri Matter\u201d). The Ciceri Matter was assigned to this Court and Magistrate\n17 Judge Brenda Weksler. Thereafter, on June 22, 2021, plaintiff Mark Perna filed a second\n18 shareholder derivative action on behalf of nominal defendant CleanSpark in the United States\n19 District Court for the District of Nevada, captioned Perna v. Bradford, et al., Case No. 2:21-cv-\n20 01181-GMN-BNW (Dkt. No. 1) (the \u201cPerna Matter\u201d).\n21 Pursuant to the Consolidation Order (Dkt. No. 10), dated June 29, 2021, this Court\n22 consolidated the Ciceri and Perna Matters and designated the complaint filed in the Ciceri Matter\n23 as the operative complaint. Paragraph 11 of the Consolidation Order specifically provides as\n24 follows:\n25\n This Order shall apply to each related shareholder derivative action\n26 involving the same or substantially the same allegations, claims,\n27 1\n Defendant Lori Love is not named as a defendant in the Atanasoff matter. Defendant Amer\n28 Tadayon is only named as a defendant in the France Matter. With those exceptions, all other\n defendants in the Consolidated Action, and the Subsequent Related Actions are identical.\n Page 3\n\n 144042733.1\n\f Case 2:23-cv-00445-GMN-BNW Document 5 Filed 03/24/23 Page 4 of 9\n\n\n\n 1 and defendants, and arising out of the same, or substantially the\n same, transactions or events as the Consolidated Action, that is\n 2 subsequently filed in, removed to, reassigned to, or transferred to\n this Court (\u201cPotential Subsequent Related Derivative Action\u201d).\n 3 When a shareholder derivative action that properly belongs as part\n of In re CleanSpark, Inc. Derivative Litigation, Lead Case No.\n 4 2:21-cv-01004-GMN-BNW, is hereafter filed in this Court,\n removed to this Court, reassigned to this Court, or transferred to\n 5 this Court from another court, this Court requests the assistance of\n counsel in calling to the attention of the Clerk of the Court the\n 6 filing, removal, reassignment, or transfer of any case that might\n properly be consolidated as part of In re CleanSpark, Inc.\n 7 Derivative Litigation, Lead Case No. 2:21-cv-01004-GMN-BNW,\n and counsel are to assist in assuring that counsel in subsequent\n 8 actions receive notice of this order. Unless otherwise ordered, the\n terms of all orders, rulings, and decisions in the Consolidated\n 9 Action shall apply to Potential Subsequent Related Derivative\n Actions filed in this Court, removed to this Court, reassigned to\n10 this Court, or transferred to this Court from another court.\n11\n (Dkt. No. 10 at \u00b6 11).\n12\n\n13 On February 24, 2023, plaintiff Nicholas Iraci filed a third shareholder derivative action\n\n14 on behalf of nominal defendant CleanSpark in Nevada\u2019s Eighth Judicial District Court, captioned\n\n15 Iraci v. Bradford, et al., Case No. A-23-866172-C. A true and correct copy of the complaint in\n\n16 the Iraci Matter is attached hereto as Exhibit A. On February 28, 2023, defendant Schultz filed\n\n17 a Petition for Removal and Notice of Petition for Removal, removing the Iraci Matter to the U.S.\n\n18 District Court. The Iraci Matter is now pending before the Honorable Jennifer A. Dorsey,\n\n19 captioned Iraci v. Bradford, et al., Case No. 2:23-cv-00315-JAD-NJK. On March 6, 2023,\n\n20 defendant Schultz filed a Notice of Related Case (Dkt. No. 46), requesting that the Iraci Matter\n\n21 be transferred to this Court and added to the Consolidated Action as required pursuant to the\n\n22 Consolidation Order.\n\n23 On March 1, 2023, plaintiff Eric Atanasoff filed a fourth shareholder derivative action on\n\n24 behalf of CleanSpark, also in Nevada\u2019s Eighth Judicial District Court, captioned Atanasoff v.\n\n25 Bradford, et al., Case No. A-23-866492-C. A true and correct copy of the complaint in the\n\n26 Atanasoff Matter is attached hereto as Exhibit B. Thereafter, on March 7, 2023, defendant\n\n27 Schultz filed a Petition for Removal and Notice of Petition for Removal, removing the Atanasoff\n\n28 Matter to the U.S. District Court. The Atanasoff Matter is now pending before the Honorable\n Page 4\n\n 144042733.1\n\f Case 2:23-cv-00445-GMN-BNW Document 5 Filed 03/24/23 Page 5 of 9\n\n\n\n 1 Anne R. Traum, captioned Atanasoff v. Bradford, et al., Case No. 2:23-cv-00358-ART-BNW.\n 2 On March 9, 2023, defendant Schultz filed a Notice of Related Case (Dkt. No. 48), requesting\n 3 that both the Iraci and Atanasoff Matters be transferred to this Court and added to the\n 4 Consolidated Action as required pursuant to the Consolidation Order.\n 5 On February 21, 2023, plaintiff Brandon Smith filed a fifth shareholder derivative action\n 6 on behalf of nominal defendant CleanSpark in Nevada\u2019s Eighth Judicial District Court, captioned\n 7 Smith v. Bradford, et al., Case No. A-23-866051-C. A true and correct copy of the complaint in\n 8 the Smith Matter is attached hereto as Exhibit C. On March 23, 2023, Defendants filed a Petition\n 9 for Removal and Notice of Petition for Removal, removing the Smith Matter to the U.S. District\n10 Court. The Smith Matter is now pending before this Court, captioned Smith v. Bradford, et al.,\n11 Case No. 2:23-cv-00445-GMN-BNW. On March 24, 2023, Defendants filed a Notice of Related\n12 Case (Dkt. No. 50), requesting that the Smith Matter be added to the Consolidated Action as\n13 required pursuant to the Consolidation Order.\n14 On March 8, 2023, plaintiff Travis France filed a sixth shareholder derivative action on\n15 behalf of nominal defendant CleanSpark in Nevada\u2019s Eighth Judicial District Court, captioned\n16 France v. Bradford, et al., Case No. A-23-866925-C. A true and correct copy of the complaint\n17 in the France Matter is attached hereto as Exhibit D. On March 23, 2023, Defendants filed a\n18 Petition for Removal and Notice of Petition for Removal, removing the France Matter to the U.S.\n19 District Court. The France Matter is now pending before this Court, captioned France v.\n20 Bradford, et al., Case No. 2:23-cv-00444-GMN-NJK. On March 24, 2023, Defendants filed a\n21 Notice of Related Case (Dkt. No. 51), requesting that the France Matter be added to the\n22 Consolidated Action as required pursuant to the Consolidation Order.\n23 As the relevant pleadings make clear, the Consolidated Action and the Subsequent\n24 Related Actions are all derivative actions brought on behalf of nominal defendant CleanSpark,\n25 and the cases involve significantly overlapping defendants: Bradford, Love, Schultz, Beynon,\n26 McNeill, and Wood. Although the Consolidated Action has been pending since June 21, 2021,\n27 the matter was stayed from January 21, 2022 until January 5, 2023, and discovery has not yet\n28 advanced. Further, the Subsequent Related Actions, like the Consolidated Action, allege that\n Page 5\n\n 144042733.1\n\f Case 2:23-cv-00445-GMN-BNW Document 5 Filed 03/24/23 Page 6 of 9\n\n\n\n 1 Defendants made material misstatements and omissions in the same public statements and\n 2 regarding the same event: i.e., CleanSpark\u2019s acquisition of ATL Data Centers, Inc. And, they all\n 3 rely heavily on the same reports by a short-seller, Culper Research, to support their claims.\n 4 The Subsequent Related Actions and the Consolidated Action also allege significantly\n 5 overlapping claims in connection with the above-alleged acts and omissions: i.e., the\n 6 Consolidated Action alleges breach of fiduciary duty, unjust enrichment, abuse of control, gross\n 7 mismanagement, and waste of corporate assets, the Iraci Matter alleges breach of fiduciary duty,\n 8 aiding and abetting breach of fiduciary duty, and unjust enrichment, the Atanasoff Matter alleges\n 9 breach of fiduciary duty and unjust enrichment, the Smith Matter alleges breach of fiduciary duty\n10 and unjust enrichment, and the France Matter alleges breach of fiduciary duty, unjust enrichment,\n11 and corporate waste.\n12 Finally and critically, the Consolidated Action and the Subsequent Related Actions all\n13 ask the Court to afford relief to the same party: nominal defendant CleanSpark. Accordingly, the\n14 Consolidated Action and the Subsequent Related Actions involve identical and/or overlapping\n15 defendants, factual and legal issues, events, and questions of law, as well as duplicative claims,\n16 warranting consolidation.\n17 II.\n18 ARGUMENT\n19 A. The Legal Standard Applicable to a Motion to Consolidate is Met Herein\n20 1. The Court Has Broad Discretion to Consolidate Cases.\n21 Consolidation is available \u201c[i]f actions before the court involve a common question of\n22 law or fact[.]\u201d FRCP 42(a). Under FRCP 42(a), courts have broad discretion to order\n23 consolidation and must balance their interests in saving time against any inconvenience, delay\n24 or expense that consolidation of cases may cause. See Huene v. U.S., 743 F.2d 703, 704 (9th Cir.\n25 1984). Consolidation is particularly appropriate where such action will save the parties time and\n26 money and avoid the possibility of inconsistent outcomes. See BAE Systems Mobility &\n27 Protection Sys. v. Armorworks Enterprises, LLC, 2009 WL 995862, *1 (D. Ariz. 2009).\n28 ///\n Page 6\n\n 144042733.1\n\f Case 2:23-cv-00445-GMN-BNW Document 5 Filed 03/24/23 Page 7 of 9\n\n\n\n 1 2. Under This Standard, Consolidation of the Cases in Question Is Warranted.\n 2 As is evident from a review of the complaints filed in the Subsequent Related Actions,\n 3 attached hereto as Exhibits A \u2013 Exhibit D, and the operative complaint in the Consolidated\n 4 Action (Dkt. No. 1), the matters carry the identical and/or overlapping allegations, with the same\n 5 evidence to be developed in discovery. The parties are the same in each action, with the\n 6 exception of Defendant Love, who was only not named in the Atanasoff Matter, and Defendant\n 7 Tadayon, who was only named in the France Matter, and the testimony of the same individuals\n 8 will be sought in each case. The allegations arise from the same and/or overlapping transactions\n 9 and occurrences and the suits were all brought ostensibly for the benefit of the same entity:\n10 CleanSpark. However, the pursuit of copycat litigation in multiple courts is hardly beneficial to\n11 CleanSpark when consolidation will save the parties duplication of efforts and the corresponding\n12 time and money expenditures that will surely result.\n13 In the final analysis, consolidation by this Court of the instant Consolidated Action and\n14 the Subsequent Related Actions will allow for the most expeditious resolution of all outstanding\n15 disputes, will serve the interests of judicial and party economy, and will avoid the possibility of\n16 inconsistent judgments. Indeed, the possibility of inconsistent rulings is not merely academic.\n17 To the contrary, with multiple, nearly identical complaints pending before different courts, the\n18 threat of inconsistent rulings \u2013 for example on motions to dismiss what are effectively identical\n19 complaints \u2013 is very real. Moreover, consolidation will not prejudice any of the parties where\n20 discovery has not yet commenced. Accordingly, this Court should grant the instant Motion to\n21 Consolidate, pursuant to FRCP 42(a).\n22 B. The Consolidation Order Also Requires Consolidation\n23 The Consolidation Order entered by this Court on June 29, 2021 contemplated\n24 circumstances such as these where related shareholder derivative actions \u201cinvolving the same or\n25 substantially the same allegations, claims, and defendants, arising out of the same or\n26 substantially the same, transactions or events as the Consolidated Action\u201d were subsequently\n27 filed in, removed to, reassigned to, or transferred to the U.S. District Court. (Dkt. No. 10 at \u00b6\n28 11). The Order provides that such cases should be properly consolidated with the Consolidated\n Page 7\n\n 144042733.1\n\f Case 2:23-cv-00445-GMN-BNW Document 5 Filed 03/24/23 Page 8 of 9\n\n\n\n 1 Action and requests the assistance of counsel to call to the attention of the court any related\n 2 actions. Id. Moreover, the Order uses the mandatory language that it \u201cshall apply\u201d to each\n 3 related derivative action. As set forth herein, there can be no reasonable dispute that the\n 4 Subsequent Related Actions are related to the Consolidated Action. Therefore, pursuant to the\n 5 Consolidation Order, Defendants respectfully request that they be consolidated with the\n 6 Consolidation Action for all purposes.\n 7 III.\n 8 CONCLUSION\n 9 For the foregoing reasons the Defendants respectfully request that the Court grant this Motion\n10 to Consolidate and order that the Iraci Matter, Case No. 2:23-cv-00315-JAD-NJK, the Atanasoff\n11 Matter, Case No. 2:23-cv-00358-ART-BNW, the France Matter, Case No. 2:23-cv- 00444-\n12 GMN-NJK, and the Smith Matter, Case No. 2:23-cv-00445-GMN-BNW, be consolidated with\n13 the Consolidated Action, Case No. 2:21-cv-01004-GMW-BNW for all purposes, including trial.\n14 DATED: March 24, 2023\n15\n\n16 FOX ROTHSCHILD LLP\n\n17 /s/ Colleen E. McCarty\n MARK J. CONNOT (10010)\n18 COLLEEN E. MCCARTY (13186)\n19 1980 Festival Plaza Drive, Ste. 700\n Las Vegas, NV 89135\n20 mconnot@foxrothschild.com\n cmccarty@foxrothschild.com\n21 Counsel for Defendant Zachary K. Bradford,\n S. Matthew Schultz, Lori L. Love, Robert P.\n22 Beynon, Larry McNeill, and Thomas L.\n Wood, Amer Tadayon, and Nominal\n23 Defendant Cleanspark, Inc.\n24\n\n25\n\n26\n\n27\n\n28\n Page 8\n\n 144042733.1\n\f Case 2:23-cv-00445-GMN-BNW Document 5 Filed 03/24/23 Page 9 of 9\n\n\n\n 1 CERTIFICATE OF SERVICE\n 2 I hereby certify that I am an employee of Fox Rothschild LLP and that on the 24th day of March\n 3 2023, pursuant to Rule 5(b) of the Federal Rules of Civil Procedure, I served a true and correct\n 4 copy of the foregoing DEFENDANTS\u2019 MOTION TO CONSOLIDATE via electronic\n 5 transmission via the Federal Court Filing System (CM/ECF).\n 6\n\n 7\n /s/ Deborah L. 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(Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G)(McCarty, Colleen) (Entered: 03/24/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/259588691/","id":259588691,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/265773019/","id":265773019,"tags":[],"absolute_url":"/docket/67087941/3/smith-v-bradford/","date_created":"2023-03-30T20:58:21.905576-07:00","date_modified":"2023-04-02T20:38:38.330882-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"3","attachment_number":null,"pacer_doc_id":"11509890921","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2023-03-30T20:58:21.894785-07:00","date_modified":"2023-04-02T20:38:38.321624-07:00","date_filed":"2023-03-24","time_filed":null,"entry_number":3,"recap_sequence_number":"2023-03-24.001","pacer_sequence_number":26,"description":"MINUTE ORDER IN CHAMBERS of the Honorable Judge Gloria M. Navarro on 3/24/2023. Statement regarding removed action is due by 4/8/2023. Joint Status Report regarding removed action is due by 4/23/2023. 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This case has been assigned to the Honorable Judge Gloria M. Navarro. Judge Navarro's Chambers Practices, which are posted on the U.S. District Court, District of Nevada public website, may also be accessed directly via this hyperlink www.nvd.uscourts.gov. 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Navarro and Magistrate Judge Brenda Weksler. (KF)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/259588688/","id":259588688,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/265773016/","id":265773016,"tags":[],"absolute_url":"/docket/67087941/1/smith-v-bradford/","date_created":"2023-03-30T20:58:21.841330-07:00","date_modified":"2023-04-03T02:05:36.341339-07:00","sha1":"00643f8c4932963b1e2d1f748cf00988d5a923f9","page_count":4,"file_size":204899,"filepath_local":"recap/gov.uscourts.nvd.161419/gov.uscourts.nvd.161419.1.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nvd.161419/gov.uscourts.nvd.161419.1.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 2:23-cv-00445-GMN-BNW Document 1 Filed 03/23/23 Page 1 of 4\n\n\n\n 1 MARK J. CONNOT (10010)\n COLLEEN E. MCCARTY (13186)\n 2 FOX ROTHSCHILD LLP\n 1980 Festival Plaza Drive, Ste. 700\n 3 Las Vegas, NV 89135\n Telephone: 702.262.6899\n 4 Facsimile: 702.597.5503\n mconnot@foxrothschild.com\n 5 cmccarty@foxrothschild.com\n Counsel for Defendants Zachary K. Bradford, Lori L. Love,\n 6 S. Matthew Schultz, Robert P. Beynon, Larry McNeill, and\n Thomas L. Wood, and Nominal Defendant Cleanspark, Inc.\n 7\n\n 8 UNITED STATES DISTRICT COURT\n 9 DISTRICT OF NEVADA\n10\n BRANDON SMITH, Derivatively on Behalf of\n11 CLEANSPARK, INC.,\n Plaintiff, Case No.: _____________________\n12\n v.\n13\n\n14 ZACHARY K. BRADFORD, LORI L. LOVE, PETITION FOR REMOVAL\n S. MATTHEW SCHULTZ, LARRY\n15 MCNEILL, THOMAS L. WOOD, and\n ROGER P. BEYNON,\n16 Defendants,\n17 -and-\n18\n CLEANSPARK, INC., a Nevada Corporation,\n19\n Nominal Defendant.\n20\n\n21 Without submitting to the jurisdiction of this Court and without waiving any available\n\n22 defenses, including without limitation, lack of jurisdiction, improper venue, or insufficient\n\n23 service of process, defendants Zachary K. Bradford, Lori L. Love, S. Matthew Schultz, Larry\n\n24 McNeill, Thomas L. Wood, and Roger P. Beynon (the \u201cIndividual Defendants\u201d), by and through\n\n25 their undersigned counsel, hereby remove this action from the Eighth Judicial District Court of\n\n26 the State of Nevada, County of Clark, where it is currently pending, to this Court. As required\n\n27 under 28 U.S.C. \u00a7 1446(a), the Individual Defendants set forth below a short and plain statement\n\n28 of the grounds for removal:\n\n 1\n 143980423.1\n\f Case 2:23-cv-00445-GMN-BNW Document 1 Filed 03/23/23 Page 2 of 4\n\n\n\n 1 1. On or about March 1, 2023, Plaintiff Brandon Smith (\u201cPlaintiff\u201d), derivatively on\n\n 2 behalf of nominal defendant, CleanSpark, Inc. (the \u201cCompany,\u201d and together with the Individual\n\n 3 Defendants, the \u201cDefendants\u201d), commenced an action entitled Smith v. Bradford et al., Case No.\n\n 4 A-23-866051-C, in Department 8 of the Eighth Judicial District Court of the State of Nevada,\n\n 5 County of Clark, by the filing of a Verified Complaint (the \u201cComplaint\u201d).\n\n 6 2. The Complaint relies heavily on a January 14, 2021 \u201creport\u201d by an anonymous\n\n 7 short-seller called \u201cCulper Research\u201d 1 and two previously-filed lawsuits: (i) a derivative action\n\n 8 pending in the United States District Court for the District of Nevada, In re CleanSpark, Inc.\n\n 9 Derivative Litigation, No. 21-cv-01004 (GMN) (the \u201cDerivative Action\u201d), and (ii) a securities\n\n10 class action pending in the United States District Court for the Southern District of New York,\n\n11 Bishins v. CleanSpark, Inc. et al., No. 21-cv-511 (LAP), (the \u201cClass Action\u201d and together with\n\n12 the Derivative Action, the \u201cPrior Actions\u201d). The allegations in the Complaint are virtually\n\n13 identical to the allegations in the complaints filed in the Prior Actions.\n\n14 3. Specifically, the Complaint alleges that certain of the Company\u2019s officers and\n\n15 directors breached their fiduciary duties to the Company and its shareholders by purportedly\n\n16 making false or misleading misstatements or omissions concerning: (i) the Company\u2019s due\n\n17 diligence of a bitcoin mining company it acquired called ATL Data Centers, Inc. (\u201cATL\u201d), (ii)\n\n18 the nature and history of ATL\u2019s bitcoin mining assets, and (iii) the Company\u2019s ability to\n\n19 implement the \u201cfirst phase\u201d of improving the ATL facility in accordance with its publicly\n\n20 disclosed timeline. (Complaint \u00b6\u00b6 5\u20137, 9\u201312).\n\n21 4. Plaintiff alleges that the Company was purportedly damaged by the foregoing acts\n\n22 or omissions. (Complaint \u00b6\u00b6 166, 169).\n\n23 5. The Notice of Removal is being filed by the Individual Defendants within thirty\n\n24 (30) days of the receipt of a copy of the Complaint and is timely filed pursuant to 28 U.S.C. \u00a7\u00a7\n\n25 1441, 1446.\n\n26 6. The Individual Defendants, including any individual defendant that is a citizen of\n\n27\n 1\n Defendants reject the statements in this so-called \u201creport,\u201d which is a transparent effort by an admitted short-seller\n28 to depress the Company\u2019s stock price for its own benefit.\n 2\n 143980423.1\n\f Case 2:23-cv-00445-GMN-BNW Document 1 Filed 03/23/23 Page 3 of 4\n\n\n\n 1 Nevada, verbally agreed to accept service of the Complaint on March 7, 2023. Nominal\n\n 2 Defendant CleanSpark, Inc. was served on February 28, 2023.\n\n 3 7. The Individual Defendants\u2019 time to move, answer, or otherwise respond to the\n\n 4 Complaint has not expired.\n\n 5 8. This Court has jurisdiction over this civil action pursuant to 28 U.S.C. \u00a7 1331, as\n\n 6 Plaintiff\u2019s claims turn on substantial questions of federal law. See Grable & Sons Metal Prod.,\n\n 7 Inc. v. Darue Eng\u2019g & Mfg., 545 U.S. 308 (2005); Gunn v. Minton, 586 U.S. 251 (2013).\n\n 8 9. Written notice of the filing of the Notice of Removal shall be given to Plaintiff,\n\n 9 and the Individual Defendants shall file the notice with the Clerk of the Eighth Judicial District\n\n10 Court of the State of Nevada, County of Clark, as required by law.\n\n11 10. Defendants have not answered, moved, or otherwise responded to the Complaint,\n\n12 and no other proceedings have occurred heretofore in this action.\n\n13 11. No previous application for the relief requested herein has been made previously.\n\n14 12. Attached as Exhibit 1 to this Petition is a true and correct copy of the Verified\n\n15 Stockholder Derivative Complaint for Breach of Fiduciary Duty and Unjust Enrichment, which\n\n16 comprises all of the pleadings in this matter.\n\n17 WHEREFORE, the Individual Defendants give notice that the matter bearing Case No.\n\n18 A-23-866051-C, in Department 8 of the Eighth Judicial District Court of the State of Nevada,\n\n19 County of Clark, is removed to the United States District Court for the District of Nevada, and\n\n20 request that this Court retain jurisdiction for all further proceedings in this matter.\n\n21 DATED: March 23, 2023 FOX ROTHSCHILD LLP\n\n22 /s/ Colleen E. McCarty\n MARK J. CONNOT (10010)\n23 COLLEEN E. MCCARTY (13186)\n 1980 Festival Plaza Drive, Ste. 700\n24\n Las Vegas, NV 89135\n25 mconnot@foxrothschild.com\n cmccarty@foxrothschild.com\n26 Counsel for Defendant Zachary K. Bradford,\n Lori L. Love, S. Matthew Schultz, Robert P.\n27 Beynon, Larry McNeill, and Thomas L.\n Wood and Nominal Defendant Cleanspark,\n28 Inc.\n 3\n 143980423.1\n\f Case 2:23-cv-00445-GMN-BNW Document 1 Filed 03/23/23 Page 4 of 4\n\n\n\n 1 CERTIFICATE OF SERVICE\n\n 2 I hereby certify that I am an employee of Fox Rothschild LLP and that on the 23rd day of\n\n 3 March 2023, pursuant to Rule 5(b) of the Federal Rules of Civil Procedure, I served a true and\n\n 4 correct copy of the foregoing PETITION FOR REMOVAL via electronic transmission.\n\n 5\n /s/ Deborah L. Pressley\n 6 An employee of Fox Rothschild LLP\n 7\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n 4\n 143980423.1\n\f","ocr_status":2,"date_upload":"2023-04-02T21:16:32.498118-07:00","document_number":"1","attachment_number":null,"pacer_doc_id":"11509890674","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/267303013/","id":267303013,"tags":[],"absolute_url":"/docket/67087941/1/1/smith-v-bradford/","date_created":"2023-04-02T21:16:16.376218-07:00","date_modified":"2023-04-02T21:44:16.145117-07:00","sha1":"","page_count":72,"file_size":734003,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"1","attachment_number":1,"pacer_doc_id":"11509890675","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit Exhibit 1","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/267303014/","id":267303014,"tags":[],"absolute_url":"/docket/67087941/1/2/smith-v-bradford/","date_created":"2023-04-02T21:16:16.416773-07:00","date_modified":"2023-04-02T21:44:16.171836-07:00","sha1":"","page_count":2,"file_size":943718,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"1","attachment_number":2,"pacer_doc_id":"11509890676","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Civil Cover Sheet Civil Cover Sheet","acms_document_guid":""}],"date_created":"2023-03-30T20:58:21.825971-07:00","date_modified":"2023-04-02T20:38:38.248491-07:00","date_filed":"2023-03-23","time_filed":null,"entry_number":1,"recap_sequence_number":"2023-03-23.001","pacer_sequence_number":9,"description":"PETITION FOR REMOVAL from Eight Judicial District Court, Clark County, Case Number A-23-866051-C, (Filing fee $ 402 receipt number ANVDC-7245609) by Larry McNeill, Lori L. Love, Thomas L. Wood, Zachary K. Bradford, Cleanspark,Inc, Matthew S. Schultz, Roger P. Beynon. Proof of service due by 5/22/2023. Certificate of Interested Parties due by 4/2/2023. (Attachments: # 1 Exhibit Exhibit 1, # 2 Civil Cover Sheet Civil Cover Sheet) (McCarty, Colleen) NOTICE of Certificate of Interested Parties requirement: Under Local Rule 7.1-1, a party must immediately file its disclosure statement with its first appearance, pleading, petition, motion, response, or other request addressed to the court. (Entered: 03/23/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/259496110/","id":259496110,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/265679330/","id":265679330,"tags":[],"absolute_url":"/docket/67087941/9/smith-v-bradford/","date_created":"2023-03-30T08:06:46.249329-07:00","date_modified":"2023-04-02T20:38:38.466570-07:00","sha1":"1c74390f83d408571b50198d81e84627f33a59cf","page_count":3,"file_size":163458,"filepath_local":"recap/gov.uscourts.nvd.161419/gov.uscourts.nvd.161419.9.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.nvd.161419/gov.uscourts.nvd.161419.9.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 2:23-cv-00445-GMN-BNW Document 9 Filed 03/29/23 Page 1 of 3\n\n\n\n 1 MARK J. CONNOT (10010)\n COLLEEN E. MCCARTY (13186)\n 2 FOX ROTHSCHILD LLP\n 1980 Festival Plaza Drive, Ste. 700\n 3 Las Vegas, NV 89135\n Telephone: 702.262.6899\n 4 Facsimile: 702.597.5503\n mconnot@foxrothschild.com\n 5 cmccarty@foxrothschild.com\n Counsel for Defendants Zachary K. Bradford, Lori L. Love,\n 6 S. Matthew Schultz, Robert P. Beynon, Larry McNeill, and\n Thomas L. Wood, and Nominal Defendant Cleanspark, Inc.\n 7\n\n 8 UNITED STATES DISTRICT COURT\n 9 DISTRICT OF NEVADA\n10\n BRANDON SMITH, Derivatively on Behalf of\n11 CLEANSPARK, INC.,\n Plaintiff, Case No.: 2:23-cv-00445-GMN-BNW\n12\n v.\n13\n\n14 ZACHARY K. BRADFORD, LORI L. LOVE, JOINT STIPULATION AND [proposed]\n S. MATTHEW SCHULTZ, LARRY ORDER ADJOURNING TIME TO\n15 MCNEILL, THOMAS RESPOND TO COMPLAINT\n L. WOOD, and ROGER P.BEYNON,\n16\n\n17 Defendants,\n18\n -and-\n19\n CLEANSPARK, INC., a Nevada Corporation,\n20\n Nominal Defendant.\n21\n\n22 Plaintiff Brandon Smith (\u201cPlaintiff\u201d), derivatively on behalf of Nominal Plaintiff\n23 CleanSpark, Inc. (\u201cCleanSpark\u201d) and Defendants Zachary K. Bradford, Lori L. Love, S.\n24 Matthew Schultz, Larry McNeill, Thomas L. Wood, Roger P. Beynon (the \u201cIndividual\n25 Defendants\u201d), and Nominal Defendant CleanSpark (together with the Individual Defendants,\n26 \u201cDefendants\u201d) (collectively, with Plaintiff, the \u201cParties\u201d), by and through their undersigned\n27 counsel, hereby enter into the following stipulation and proposed order:\n28\n 1\n 100086335.2\n\f Case 2:23-cv-00445-GMN-BNW Document 9 Filed 03/29/23 Page 2 of 3\n\n\n\n 1 WHEREAS, on February 21, 2023, Plaintiff filed a shareholder derivative complaint (the\n\n 2 \u201cComplaint\u201d) on behalf of Nominal Plaintiff CleanSpark in the Eighth Judicial District Court of\n\n 3 the State of Nevada in and for Clark County (the \u201cState Court\u201d), captioned Smith v. Bradford, et\n\n 4 al., Case No. A-23-866051-C (this \u201cAction\u201d); and\n\n 5 WHEREAS, on March 23, 2023, the Individual Defendants filed a Petition for Removal\n\n 6 and Notice of Removal, removing this Action from State Court to the United States District\n\n 7 Court for the District of Nevada; and\n\n 8 WHEREAS, Plaintiff has indicated that he plans to file a motion to remand, which he\n\n 9 will notice to be heard by the Court in the normal course (the \u201cMotion to Remand\u201d); and\n10 WHEREAS, Defendants intend to move to dismiss the Complaint in this Action (the\n11 \u201cMotion to Dismiss\u201d); and\n\n12 WHEREAS, in order to conserve the resources of the Court and the Parties, the Parties\n13 agree to adjourn the deadline for Defendants to respond to the Complaint until after the Court has\n\n14 decided the Motion to Remand.\n15 NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by the Parties\n16 hereto, through their undersigned counsel, subject to the approval of the Court, as follows:\n17 1. Defendants\u2019 deadline to respond to the Complaint is adjourned until after the\n\n18 Court decides the Motion to Remand.\n\n19 2. To the extent the Court denies the Motion to Remand, the Parties will submit a\n20 proposed briefing schedule for the Motion to Dismiss within seven days of the Court issuing its\n\n21 decision on the Motion to Remand.\n\n22 3. Other than as agreed herein, the Parties reserve all rights.\n\n23\n\n24 [Signatures on following page]\n\n25\n\n26\n\n27\n\n28\n 2\n 100086335.2\n\f Case 2:23-cv-00445-GMN-BNW Document 9 Filed 03/29/23 Page 3 of 3\n\n\n\n 1\n DATED: March 28, 2023 DATED: March 28, 2023\n 2\n FOX ROTHSCHILD LLP MUEHLBAUER LAW OFFICE, LTD.\n 3\n\n 4 /s/ Colleen E. McCarty /s/ Andrew R. Muehlbauer\n MARK J. CONNOT (10010) ANDREW R. MUEHLBAUER\n 5 COLLEEN E. MCCARTY (13186) 7915 West Sahara Avenue, Suite 104\n 1980 Festival Plaza Drive, Ste. 700 Las Vegas, Nevada 89117\n 6 Las Vegas, NV 89135 andrew@mlolegal.com\n mconnot@foxrothschild.com Counsel for Plaintiff\n 7\n cmcarty@foxrothschild.com\n 8 Counsel for Defendants\n\n 9\n ORDER\n10\n IT IS SO ORDERED.\n11\n Dated this ____\n 29 day of March, 2023.\n12\n\n13\n\n14 ___________________________\n Gloria M. Navarro, District Judge\n15\n UNITED STATES DISTRICT COURT\n16\n\n17\n\n18\n\n19\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n 3\n 100086335.2\n\f","ocr_status":2,"date_upload":"2023-03-30T20:59:08.910752-07:00","document_number":"9","attachment_number":null,"pacer_doc_id":"11509899830","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order on Stipulation","acms_document_guid":""}],"date_created":"2023-03-30T08:06:46.242375-07:00","date_modified":"2023-04-02T20:38:38.453322-07:00","date_filed":"2023-03-29","time_filed":null,"entry_number":9,"recap_sequence_number":"2023-03-29.001","pacer_sequence_number":39,"description":"ORDER Granting 8 Stipulation Adjourning Time to Respond to Complaint. See order for further details. Signed by Judge Gloria M. Navarro on 3/29/2023.(Copies have been distributed pursuant to the NEF - KF) (Entered: 03/30/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/257274625/","id":257274625,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/67087941/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/263449384/","id":263449384,"tags":[],"absolute_url":"","date_created":"2023-03-24T08:11:35.429979-07:00","date_modified":"2023-03-24T08:11:35.432324-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Standing Order","acms_document_guid":""}],"date_created":"2023-03-24T08:11:35.425559-07:00","date_modified":"2023-03-24T08:11:35.425569-07:00","date_filed":"2023-03-24","time_filed":"07:15:54","entry_number":null,"recap_sequence_number":"2023-03-24.001","pacer_sequence_number":null,"description":"","tags":[]}],"entries_total":"https://www.courtlistener.com/api/rest/v4/docket-entries/?count=on&docket=67087941&page_size=40"}