Opinion
STUART G. GROSS, DAN C. GOLDBERG, GROSS LAW, P.C., San Francisco, CA, JOSEPH R. SAVERI, ANDREW M. PURDY, KEVIN E. RAYHILL, JOSEPH SAVERI LAW FIRM, INC., San Francisco, CA, Attorneys for Plaintiffs the Paskenta Band of Nomlaki Indians and the Paskenta Enterprises Corporation.
SHEIK LAW Mani Sheik, Attorneys for CRP 111 West 141st LLC, Castellan Managing Member LLC, CRP West 168th Street LLC, CRP Sherman Avenue LLC.
STIPULATION AND [PROPOSED] ORDER FOR RESOLUTION WITHOUT PREJUDICE OF CLAIMS AGAINST NOMINAL DEFENDANTS CRP 111 WEST, CASTELLAN MANAGING MEMBER LLC, 141ST LLC, CRP WEST 168TH STREET LLC, AND CRP SHERMAN AVENUE LLC,
GARLAND E. BURRELL, Jr., District Judge.
WHEREAS, on March 10, 2015, the Paskenta Band of Nomlaki Indians and Paskenta Enterprises Corporation ("Plaintiffs") filed the Complaint in the instant action;
WHEREAS, Plaintiffs subsequently filed a First Amended Complaint ("FAC") naming CRP 111 West 141st LLC, CRP West 168th Street LLC, CRP Sherman Avenue LLC, and Castellan Managing Member LLC (collectively "CRP Entities") as Nominal Defendants;
WHEREAS, CRP 111 West 141st LLC, CRP West 168th Street LLC, CRP Sherman Avenue LLC are special purpose real estate investment vehicles created by Castellan Managing Member LLC for the purpose of making investments in residential and retail properties in the New York metropolitan area;
WHEREAS, neither the Complaint nor the FAC allege any of the CRP Entities engaged, or assisted in, any wrongful conduct;
WHEREAS, CRP Entities deny having engaged, or assisted in, any wrongful conduct;
WHEREAS, the Complaint and the FAC allege that Defendants John Crosby and Larry Lohse through racketeering activities caused Plaintiffs to loan John Crosby and Larry Lohse $150,000, each, and allege such loans were unauthorized conversions of Plaintiffs' money;
WHEREAS, the Complaint and FAC further allege that the foregoing loans were used to purchase certain interests in CRP 111 West 141st LLC, CRP West 168th Street LLC, CRP Sherman Avenue LLC (collectively, the "Subject Interests");
WHEREAS, the Complaint and the FAC further allege that Defendants John Crosby and Larry Lohse, in doing so, improperly took for themselves the opportunity to invest in CRP 111 West 141st LLC, CRP West 168th Street LLC, CRP Sherman Avenue LLC to which Plaintiffs were lawfully entitled;
WHEREAS, the Complaint and the FAC, further allege that Plaintiffs are lawfully owners of the Subject Interests and are entitled to all proceeds, distributions, and other economic benefits related thereto;
WHEREAS, the CRP Entities wish to avoid the expenses and uncertainty of litigation; and
WHEREAS, the undersigned counsel for the CRP Entities has accepted service of the FAC and Summons on behalf of the CRP Entities and has consented to the continuing jurisdiction of this Court for the purposes of the instant matter, including without limitation any action brought to enforce this Order;
IT IS HEREBY STIPULATED, by and between Plaintiffs and CRP Entities, by and through their respective counsel, pursuant to Civil Local Rule 143, and subject to approval by the Court, that:
1. The CRP Entities shall make no payment related to the Subject Interests, nor allow any payment to be made related to the Subject Interests, to Defendant John Crosby, Defendant Larry Lohse, or any other person, during the pendency of the instant action, unless and until otherwise ordered by the Court. For purposes of clarity, this provision shall not affect or constrain the ability of the CRP Entities to make or allow payments that are unrelated to the Subject Interests.
2. All payments related to the Subject Interests that would otherwise have been made by the CRP Entities (collectively, the "Proceeds") to Defendant John Crosby, Defendant Larry Lohse, or any other person, shall be held in escrow by the CRP Entities and invested in the VANGUARD S&P 500 ETF (ticker: VOO). Neither the CRP Entities nor Castellan shall be liable to any person for any losses, expenses or fees incurred as a result of, or in connection with, such investment of the Proceeds. For purposes of clarity, this provision shall not affect or constrain the actions of the CRP Entities as to any payment that is unrelated to the Subject Interests.
3. At the conclusion of the instant action, and to the extent the Court has not previously ordered the payment of some or all of the Proceeds, the CRP Entities shall pay the Proceeds, inclusive of any returns earned through its investment, to the person(s) whom the Court has adjudged the rightful owners of the Subject Interests and/or Proceeds.
4. Within ten (10) days of entry of this Order, Plaintiffs shall dismiss the CRP Entities without prejudiced from the instant action.
5. Notwithstanding the foregoing dismissal without prejudice, because the Plaintiffs and certain Defendants dispute the lawful ownership of the Subject Interests and the ancillary entitlement to proceeds, distributions, and other economic benefits related thereto, and because this Court's ultimate disposition of this case will likely determine the lawful ownership of the Subject Interests and ancillary entitlements, the Court shall retain jurisdiction over the CRP Entities for the purpose of enforcing this Order and matters related thereto, including issuing an order at the conclusion of this case directing the CRP Entities to distribute proceeds, distributions, and other economic benefits related to the Subject Interests to whichever party(ies) the Court determines is the lawful owner thereof.
6. The non-stipulating parties (i.e., the remaining Defendants) have reviewed and do not object to this Stipulation and Proposed Order.
PURSUANT TO STIPULATION, IT IS SO ORDERED.