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Roberts v. Generation Next, LLC

United States District Court, D. New Mexico

April 19, 2019

GALE ROBERTS, Plaintiff,
v.
GENERATION NEXT, LLC, RICHARD COOK, Estate of, KATHARINE COOK FISHMAN, PAUL MATTHEW CASTER, ANTIQUITY ENCOUNTER, JOHN MELANCON, EXPEDITION RESOURCES, LLC, EXPLORATION OPES, LLC, DONALD PATTERSON, GERALD KEMLAR, HOWARD TALKS, WILLIAM FLOTO, JOHN AND JANE DOES, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT TALK'S MOTION TO DISMISS

         THIS MATTER comes before the Court upon Defendant Talks' Motion to Dismiss, filed March 1, 2019 (Doc. 49). Having reviewed the parties' pleadings and the applicable law, the Court finds that Defendant's motion is well-taken and, therefore, is granted.

         BACKGROUND

         This lawsuit is about a hunt for buried treasure. Plaintiff, d/b/a “Gone Working, ” is proceeding pro se in this lawsuit. He is a resident of Wyoming who conducted business in New Mexico, Texas and Florida, and claims that he contractually agreed with Defendants Melancon, Patterson, Kemler and Talks, to fund a gold treasure exploration mission near Espanola, New Mexico, known as the “Black Mesa Expedition.” Black Mesa is a hill area located northwest of Espanola, New Mexico where it is believed that several large caches of gold treasure and antiquities are hidden in Spanish Vaults.

         Defendant Talks (“Talks” or “Defendant” for purposes of this opinion) is described in the complaint as a treasure hunter and past financier of gold finding expeditions for Defendants Patterson and Kemler. Talks, along with Defendants Melancon, Patterson Kemler, was a managing member of Expedition Resources, LLC and Exploration OPES, LLC (“OPCS”), both of which are companies involved in the expedition.

         Plaintiff claims that Talks allegedly caused, participated in and tried to cover up the illegal taking of gold from the expedition site and that in doing so, they conspired to deprive him of his contractual rights as a member of the expedition. Plaintiff asserts six of the eleven counts in the complaint against Talks:

Count II - Conversion;
Count III - Conspiracy;
Count IV - Breach of Written Contract;
Count VI - Fraudulent Inducement;
Count VIII - Breach of the Covenant of Good Faith and Fair Dealing; and
Count 11 - Quantum Meruit/Unjust Enrichment

         Defendant contends that the claims against him asserted by Plaintiff are either time-barred or that they fail to state a claim as a matter of law. The case is brought to federal court based on diversity jurisdiction and therefore this court is required to apply New Mexico law. See Armijo v. Ex Cam, Inc., 843 F.2d 406 (10th Cir. 1988) (In a diversity action, federal courts are required to apply the law of the forum state).

         I. Relevant Facts[1]

         The following are the bare relevant facts as alleged in the complaint, arranged chronologically:

         November 2012: According to the complaint, Plaintiff entered into a Joint Venture Agreement in November 2012 with Defendants Patterson/Expedition Resources, which was captioned as a “Memorandum of Understanding for a Joint Venture Agreement.” Doc. 3 at 48 (also referred to as the “New Agreement” by Plaintiff, see Doc. 3, ¶¶44, 53). Under its terms, Plaintiff was to pay all costs and would be entitled to a 50/50 split in discovered uncovered gold and artifacts. The agreement was brokered by Defendant Melancon with the approval of Richard Cook, who owned the treasure maps used in the expedition and whose company, Generation Next, LLC (“Gen Next”) owned property on Black Mesa. Doc. 3, ¶46.[2]

         March 2013: Using testing equipment Roberts had purchased specifically for the expedition, two gold targets were located. As the targets were located, tension grew between him and Defendants Patterson and Kemler. Although unknown to Plaintiff at the time, Defendants Patterson and Kemler located two other gold targets with the help of Defendant William “Bill” Floto, who was flown up from Florida, using Floto's “proprietary science.” Doc. 3, ¶62.

         March 6, 2013: in Plaintiff's absence, the Melancon team members-Defendants Patterson, Kemler and Floto-dug up the gold in one of these two targets and secreted it away. These men then hid the Bill Floto's test results and manufactured false results in their place in order to deceive Plaintiff about these other two locations where gold was hidden.

         March 15, 2013: Plaintiff met Richard Cook for the first time, during which time Cook related the story about treasure hidden by robbers that held up a pack train of mules hauling gold and silver coins in the late 1800's (“OJO Robbery”). Doc. 3, ¶73.

         March 16, 2013: with the permission of Richard Cook and Defendant Caster, the excavation to locate the Spanish Vaults on Black Mesa began. Doc. 3, ΒΆ74. The team was several days into the excavation when Plaintiff Roberts discovered that Defendant Kemler had tried to hide ...


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