AGK Sierra de Montserrat, L.P. v. Comerica Bank

E.D. California

AGK Sierra de Montserrat, L.P. v. Comerica Bank

DecidedJanuary 17, 2025

Docket2:15-cv-01280

StatusUnknown

This text of AGK Sierra de Montserrat, L.P. v. Comerica Bank (AGK Sierra de Montserrat, L.P. v. Comerica Bank) is published on Counsel Stack Legal Research, covering District Court, E.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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AGK Sierra de Montserrat, L.P. v. Comerica Bank, (E.D. Cal. 2025).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AGK SIERRA DE MONTSERRAT, L.P., No. 2:15-cv-01280-DAD-SCR 12 Plaintiff, 13 v. ORDER DIRECTING PARTIES TO FILE SUPPLEMENTAL BRIEFING 14 COMERICA BANK,

15 Defendant. 16 17 The court issues this order as a result of its review of plaintiff’s pending motion for 18 attorneys’ fees and costs, defendant’s opposition to that motion, and plaintiff’s reply thereto. 19 (Doc. Nos. 139, 146, 147.) Defendant contends that plaintiff’s motion was not timely filed. 20 (Doc. No. 146 at 8–9.) Plaintiff has not addressed whether: (1) if the motion was not timely 21 filed, they are seeking an extension of time to so move pursuant to Rule 6(b) of the Federal Rules 22 of Civil Procedure; and (2) whether the delay in the filing of its Rule 54 motion was a result of 23 “excusable neglect.” See El-Said v. BMW of N. Am., LLC, No. 8:19-cv-02426-JLS-JDE, 2023 24 WL 3551959, at *2 (C.D. Cal. Mar. 23, 2023) (citing Pioneer Inv. Servs. Co. v. Brunswick 25 Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). Additionally, the court requires additional 26 briefing addressing whether performance of the Assignment of Declarant Rights (“ADR”), which 27 the court has already found was breached by defendant, was an express condition of the parties’ 28 Purchase and Sale Agreement which includes an attorneys’ fee provision. (See Doc. No. 118 at 1 | 81) (“Because Comerica has refused to indemnify AGK for its losses and costs incurred in its 2 || defense in both the Kincade and Murphy Actions, as well as AGK’s losses and costs incurred in 3 | enforcing the indemnity paragraph in this action, the court thus concludes that Comerica has 4 | breached the final ADR.”) 5 Accordingly, the parties are directed to file simultaneous supplemental briefing, including 6 | supporting legal authority, by January 27, 2025, addressing the following issues: 7 1. Whether, should the court determine that plaintiff's motion is not timely, that 8 untimeliness was a result of “excusable neglect;” and 9 2. Whether performance of the Assignment of Declarant Rights was an express 10 condition of the Purchase and Sale Agreement. IT IS SO ORDERED. | Dated: _ January 16,2025 Da A. 2, ye 13 DALE A. DROZD 4 UNITED STATES DISTRICT JUDGE

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AGK SIERRA DE MONTSERRAT, L.P., No. 2:15-cv-01280-DAD-SCR 12 Plaintiff, 13 v. ORDER DIRECTING PARTIES TO FILE SUPPLEMENTAL BRIEFING 14 COMERICA BANK,

15 Defendant. 16 17 The court issues this order as a result of its review of plaintiff’s pending motion for 18 attorneys’ fees and costs, defendant’s opposition to that motion, and plaintiff’s reply thereto. 19 (Doc. Nos. 139, 146, 147.) Defendant contends that plaintiff’s motion was not timely filed. 20 (Doc. No. 146 at 8–9.) Plaintiff has not addressed whether: (1) if the motion was not timely 21 filed, they are seeking an extension of time to so move pursuant to Rule 6(b) of the Federal Rules 22 of Civil Procedure; and (2) whether the delay in the filing of its Rule 54 motion was a result of 23 “excusable neglect.” See El-Said v. BMW of N. Am., LLC, No. 8:19-cv-02426-JLS-JDE, 2023 24 WL 3551959, at *2 (C.D. Cal. Mar. 23, 2023) (citing Pioneer Inv. Servs. Co. v. Brunswick 25 Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). Additionally, the court requires additional 26 briefing addressing whether performance of the Assignment of Declarant Rights (“ADR”), which 27 the court has already found was breached by defendant, was an express condition of the parties’ 28 Purchase and Sale Agreement which includes an attorneys’ fee provision. (See Doc. No. 118 at 1 | 81) (“Because Comerica has refused to indemnify AGK for its losses and costs incurred in its 2 || defense in both the Kincade and Murphy Actions, as well as AGK’s losses and costs incurred in 3 | enforcing the indemnity paragraph in this action, the court thus concludes that Comerica has 4 | breached the final ADR.”) 5 Accordingly, the parties are directed to file simultaneous supplemental briefing, including 6 | supporting legal authority, by January 27, 2025, addressing the following issues: 7 1. Whether, should the court determine that plaintiff's motion is not timely, that 8 untimeliness was a result of “excusable neglect;” and 9 2. Whether performance of the Assignment of Declarant Rights was an express 10 condition of the Purchase and Sale Agreement. IT IS SO ORDERED. | Dated: _ January 16,2025 Da A. 2, ye 13 DALE A. DROZD 4 UNITED STATES DISTRICT JUDGE

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