Monther v. Lough — Entry #14: Stipulated MOTION to Dismiss [Stipulated Motion for Voluntary Dismissal of Action Pursuant to Federal Rules of Civil Procedure 23.1 and 41] filed by Defendants…

Case 2:18-cv-00791-TC Document 14 Filed 01/27/21 PageID.87 Page 1 of 3


Kenneth B. Black (05588)
ken.black@stoel.com
Michael R. Menssen (15424)
michael.menssen@stoel.com
STOEL RIVES LLP
201 S. Main Street, Suite 1100
Salt Lake City, UT 84111
Telephone: (801) 328-3131

Attorneys for Defendants PolarityTE, Inc.,
Denver Lough, Michael Beeghley, Willie C.
Bogan, Jeff Dyer, Steven Gorlin, Jon Mogford,
John Stetson and Edward Swanson

                        IN THE UNITED STATES DISTRICT COURT

                                    DISTRICT OF UTAH

 HENRY MONTHER, derivatively on behalf          STIPULATED MOTION FOR
 of POLARITYTE, INC.,                           VOLUNTARY DISMISSAL OF ACTION
                                                PURSUANT TO FEDERAL RULES OF
               Plaintiff,                       CIVIL PROCEDURE 23.1 AND 41

        v.
                                                Case No. 2:18-cv-00791-TC
 DENVER LOUGH, MICHAEL
 BEEGHLEY, WILLIE C. BOGAN, JEFF                Hon. Tena Campbell
 DYER, STEVEN GORLIN, JON
 MOGFORD, JOHN STETSON, and
 EDWARD SWANSON,

               Defendants,

        and

 POLARITYTE, INC.,

               Nominal Defendant.


   Case 2:18-cv-00791-TC Document 14 Filed 01/27/21 PageID.88 Page 2 of 3


          Plaintiff Henry Monther (“Plaintiff”), derivatively on behalf of PolarityTE, Inc. (“Polarity”

or “Nominal Defendant”), and defendants Denver Lough, Michael Beeghley, Willie C. Bogan,

Jeff Dyer, Steven Gorlin, Jon Mogford, John Stetson, and Edward Swanson (collectively, the

“Individual Defendants,” and together with Nominal Defendant, “Defendants”) have conferred,

through their counsel, and agree that Plaintiff shall voluntarily dismiss the above-captioned

consolidated action (the “Action”) pursuant to Rules 23.1(c) and 41(a) of the Federal Rules of

Civil Procedure, without prejudice as to Plaintiff, Nominal Defendant, and/or any other Polarity

stockholder.

          WHEREAS, Plaintiff and Defendants (the “Parties”) agree that the dismissal is not, and

shall not be deemed to be, an adjudication of the Action on the merits, and that each Party shall

bear its own fees, costs, and expenses incurred in connection with the Action; and

          WHEREAS, the Parties agree and respectfully submit that additional notice to Polarity

stockholders of this dismissal beyond the public filing of the Order is unnecessary because: (i) the

dismissal is without prejudice to the ability of any Polarity stockholder, or Polarity itself, to pursue

the claims asserted in the Action; and (ii) there has been no settlement or compromise of the

Action.

          NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among the

Parties, through their undersigned counsel of record and subject to approval of the Court, that:

          1.     This Action shall be dismissed on the terms provided for in this Stipulation and

[Proposed] Order, without prejudice as to Plaintiff, Polarity, and/or any other Polarity stockholder.

          2.     Notice to Polarity stockholders of this dismissal is unnecessary because (i) the

dismissal is without prejudice to the ability of any Polarity stockholder, or Polarity itself, to pursue


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   Case 2:18-cv-00791-TC Document 14 Filed 01/27/21 PageID.89 Page 3 of 3


the claims asserted in the Action; and (ii) there has been no settlement or compromise of the

Action.

          3.     The Parties shall bear their own fees, costs, and expenses in connection with the

Action.

          A proposed order is attached hereto as Exhibit 1.

          IT IS SO STIPULATED.

Dated: January 27, 2021                            STOEL RIVES LLP

                                                   By /s/ Michael R. Menssen
                                                       Kenneth B. Black
                                                       Michael R. Menssen

                                                   Attorneys for Defendants POLARITYTE, INC,
                                                   DENVER LOUGH, MICHAEL BEEGHLEY,
                                                   WILLIE C. BOGAN, JEFF DYER, STEVEN
                                                   GORLIN, JON MOGFORD, JOHN STETSON,
                                                   and EDWARD SWANSON


Dated: January 27, 2021                            JAMES DODGE RUSSELL & STEPHENS, PC

                                                   By /s/ Mark F. James (with permission)
                                                       Mark F. James

                                                   Attorneys for Plaintiff


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