Opinion
2:23-cv-00358-ART-BNW
04-21-2023
ERIC ATANASOFF, Derivatively on Behalf of CLEANSPARK, INC., Plaintiff, v. ZACHARY K. BRADFORD, S. MATTHEW SCHULTZ, ROGER P. BEYNON, LARRY MCNEILL, and THOMAS L. WOOD, Defendants, -and- CLEANSPARK, INC., a Nevada Corporation, Nominal Defendant.
MARK J. CONNOT (10010) COLLEEN E. MCCARTY (13186) Counsel for Defendants JOHN P. ALDRICH (6877) CATHERINE HERNANDEZ (8410) JAMES M. FICARO Counsel for Plaintiff Eric Atanasoff
Removal from District Court, Clark County, Nevada, Case No. A-23-866492-C
MARK J. CONNOT (10010) COLLEEN E. MCCARTY (13186) Counsel for DefendantsJOHN P. ALDRICH (6877) CATHERINE HERNANDEZ (8410)
JAMES M. FICARO Counsel for Plaintiff Eric Atanasoff
ORDER APPROVING STIPULATION TO SET BRIEFING SCHEDULE FOR MOTION TO DISMISS
Anne R. Traum United States District Court Judge
Plaintiff Eric Atanasoff (“Plaintiff”), derivatively on behalf of Nominal Plaintiff CleanSpark, Inc. (“CleanSpark”) and Defendants Zachary K. Bradford, S. Matthew Schultz, Larry McNeill, Thomas L. Wood, Roger P. Beynon (the “Individual Defendants”), and Nominal Defendant CleanSpark (together with the Individual Defendants, “Defendants”) (collectively, with Plaintiff, the “Parties”), by and through their undersigned counsel, hereby enter into the following stipulation and proposed order:
The Six Derivative Actions
WHEREAS, on May 26, 2021, plaintiff Andrea Ciceri filed a shareholder derivative action on behalf of nominal defendant CleanSpark in the United States District Court for the District of Nevada, captioned Ciceri v. Bradford, et al., Case No. 2:21-cv-01004-GMN-BNW (“Ciceri”). Ciceri was assigned to the Honorable Gloria M. Navarro; and
WHEREAS, on June 22, 2021, plaintiff Mark Perna filed a second shareholder derivative action on behalf of nominal defendant CleanSpark in the United States District Court for the District of Nevada, captioned Perna v. Bradford, et al., Case No. 2:21-cv-01181-GMN-BNW (“Perna”). Perna was also assigned to the Honorable Gloria M. Navarro; and
WHEREAS, on June 29, 2021, Judge Navarro consolidated Ciceri and Perna into a single consolidated action, captioned In re Cleanspark, Inc. Derivative Litigation, Case No. 2:21-cv-01004-GMN-BNW (the “Consolidated Action”) and designated the complaint filed in Ciceri as the operative complaint pursuant to a Joint Stipulation and Order Consolidating Related Actions and Appointing Co-Lead Counsel (the “Consolidation Order”); and
WHEREAS, on February 24, 2023, plaintiff Nicholas Iraci filed a third shareholder derivative action on behalf of nominal defendant CleanSpark in the Eighth Judicial District Court of the State of Nevada in and for Clark County, captioned Iraci v. Bradford, et al., Case No. A-23-866172-C (“Iraci”); and
WHEREAS, on February 28, 2023, defendant S. Matthew Schultz (“Schultz”) filed a Petition for Removal and Notice of Petition for Removal, removing Iraci to the United States District Court for the District of Nevada. Iraci is now pending in the United States District Court for the District of Nevada before the Honorable Jennifer A. Dorsey, captioned Iraci v. Bradford, et al., Case No. 2:23-cv-00315-JAD-NJK. On March 6, 2023, defendant Schultz filed a Notice of Related Case, requesting that Iraci be transferred to Judge Navarro and added to the Consolidated Action; and
WHEREAS, on March 1, 2023, plaintiff Eric Atanasoff filed a fourth shareholder derivative action on behalf of nominal defendant CleanSpark in the Eighth Judicial District Court of the State of Nevada in and for Clark County, captioned Atanasoff v. Bradford, et al., Case No. A-23-866492-C (“Atanasoff”); and
WHEREAS, on March 7, 2023, defendant Schultz filed a Petition for Removal and Notice of Petition for Removal, removing Atanasoff to the United States District Court for the District of Nevada. Atanasoff is now pending in this Court. On March 9, 2023, defendant Schultz filed a Notice of Related Case, requesting that Atanasoff be transferred to Judge Navarro and added to the Consolidated Action; and
WHEREAS, on February 21, 2013, plaintiff Brandon Smith filed a fifth shareholder derivative action on behalf of nominal defendant CleanSpark in the Eighth Judicial District Court of the State of Nevada in and for Clark County, captioned Smith v. Bradford, et al., Case No. A-23-866051-C (“Smith”); and
WHEREAS, on March 23, 2023, Defendants filed a Petition for Removal and Notice of Removal, removing Smith to the United States District Court for the District of Nevada. Smith is now pending in the United States District Court for the District of Nevada before Judge Navarro, captioned Smith v. Bradford, et al., Case No. 2:23-cv-00445-GMN-BNW. On March 24, 2023, Defendants filed a Notice of Related Case, requesting that Smith be added to the Consolidated Action; and
WHEREAS, on March 8, 2023, plaintiff Travis France filed a sixth shareholder derivative action on behalf of nominal defendant CleanSpark in the Eighth Judicial District Court of the State of Nevada in and for Clark County, captioned France v. Bradford, et al., Case No. A-23-866925-C (“France” and together with the Iraci, Atanasoff, Smith, and the Consolidated Action, the “Six Derivative Actions”); and
WHEREAS, on March 23, 2023, Defendants filed a Petition for Removal and Notice of Removal, removing France to the United States District Court for the District of Nevada. France is also now pending in the United States District Court for the District of Nevada before Judge Navarro, captioned France v. Bradford, et al., Case No. 2:23-cv-00444-GMN-NJK. On March 24, 2023, Defendants filed a Notice of Related Case, requesting that France be added to the Consolidated Action; and WHEREAS, on March 24, 2023, Defendants filed a Motion to Consolidate in the Consolidated Action, with notifications for Iraci, Atanasoff, Smith, and France, requesting that those cases be consolidated with the Consolidated Action before Judge Navarro; and
WHEREAS, between March 30, 2023 and April 6, 2023, plaintiffs in Iraci, Atanasoff, Smith, and France all filed motions to remand those actions back to state court; and
WHEREAS, the parties in Six Derivative Actions have the following briefing deadlines:
Date
Case
Task
3/24/2023
Atanasoff
Defendants' Motion to Consolidate Cases
3/24/2023
France
Defendants' Motion to Consolidate Cases
3/24/2023
Iraci
Defendants' Motion to Consolidate Cases
3/24/2023
Smith
Defendants' Motion to Consolidate Cases
3/30/2023
Iraci
Plaintiff's Motion to Remand to State Court
3/31/2023
France
Plaintiff's Motion to Remand to State Court
4/4/2023
Atanasoff
Plaintiff's Motion to Remand to State Court
4/6/2023
Smith
Plaintiff's Motion to Remand to State Court
4/7/2023
France
Plaintiff's Response to Motion to Consolidate
4/7/2023
Atanasoff
Plaintiff's Opposition to Motion to Consolidate
4/11/2023
France
Defendants' Motion to Dismiss
4/13/2023
Iraci
Defendants' Opposition to Motion to Remand
4/14/2023
France
Defendants' Reply to Plaintiff's Opposition to Motion to Consolidate
4/14/2023
Atanasoff
Defendants' Reply to Plaintiff's Opposition to Motion to Consolidate
4/14/2023
France
Defendants' Opposition to Motion to Remand
4/17/2023
Iraci
Plaintiff's Opposition to Motion to Consolidate
4/17/2023
Smith
Plaintiff's Opposition to Motion to Consolidate
4/18/2023
Atanasoff
Defendants' Opposition to Motion to Remand
4/20/2023
Smith
Defendants' Opposition to Motion to Remand to State Court
4/20/2023
Iraci
Plaintiff's Reply to Defendant's Opposition to Motion to Remand
4/21/2023
France
Plaintiff's Reply to Defendant's Opposition to Motion to Remand
4/24/2023
Smith
Defendants' Reply to Plaintiff's Opposition to Motion to Consolidate
4/24/2023
Iraci
Defendants' Reply to Plaintiff's Opposition to Motion to Consolidate
4/24/2023
Iraci
Defendants' Motion to Dismiss
4/25/2023
Atanasoff
Plaintiff's Reply to Defendant's Opposition to Motion to Remand
4/27/2023
Smith
Plaintiff's Reply to Defendant's Opposition to Motion to Remand to State Court
5/5/2023
Atanasoff
Defendants' Motion to Dismiss
5/11/2023
France
Plaintiff's Opposition to Motion to Dismiss (pending court approval)
5/24/2023
Iraci
Plaintiff's Opposition to Motion to Dismiss
6/1/2023
France
Defendants' Reply to Plaintiff's Opposition to Motion to Dismiss (pending court approval)
6/5/2023
Atanasoff
Plaintiff's Opposition to Motion to Dismiss (pending court approval)
6/14/2023
Iraci
Defendants' Reply to Plaintiff's Opposition to Motion to Dismiss
6/26/2023
Atanasoff
Defendants' Reply to Plaintiff's Opposition to Motion to Dismiss (pending court approval)
This Action
WHEREAS, on April 5, 2023, after meeting and conferring extensively, the Parties submitted a joint Stipulation and [proposed] Order Extending Time to Respond to Complaint (the “Stipulation”), agreeing, subject to the Court's approval, to extend: (i) Defendants' time to respond to the Complaint until May 5, 2023, (ii) Plaintiff's time to oppose any motion to dismiss the Complaint that Defendants file until on or before June 5, 2023, and (iii) Defendants' time to reply in support of any motion to dismiss the Complaint that Defendants file until on or before June 26, 2023; and
WHEREAS, on April 6, 2023, Magistrate Brenda Weksler granted the Stipulation in part and denied it in part, extending Defendants' time to respond to the Complaint until May 5, 2023, but instructing the Parties to make a separate filing setting forth their proposed briefing schedule for any motion to dismiss that Defendants file pursuant to LR IC 2-2(b); and
WHEREAS, Defendants intend to move to dismiss the Complaint in this Action on or before May 5, 2023; and
WHEREAS, given the crowded briefing schedules in the Six Derivative Actions, the Parties agree to extend the deadline for Plaintiff to oppose any motion to dismiss the Complaint that Defendants file until on or before June 5, 2023; and
WHEREAS, given the crowded briefing schedules in the Six Derivative Actions, the Parties agree to extend the deadline for Defendants to reply in support of any motion to dismiss the Complaint until on or before June 26, 2023.
NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by the Parties hereto, through their undersigned counsel, subject to the approval of the Court, as follows:
1. Plaintiff's deadline to oppose any motion to dismiss the Complaint that Defendants file is extended until on or before June 5, 2023.
2. Defendants' deadline to reply in support of any motion to dismiss the Complaint that Defendants file is extended until on or before June 26, 2023.
3. Other than as agreed herein, the Parties reserve all rights.
FOX ROTHSCHILD LLP ALDRICH LAW FIRM, LTD.
IT IS SO ORDERED.