United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART EXPEDITION DEFENDANTS' MOTION TO
MATTER comes before the Court upon Expedition Defendants'
Motion to Dismiss, filed January 28, 2019 (Doc.
37). Having reviewed the parties' pleadings and
the applicable law, the Court grants and denies Expedition
Defendants' motion to dismiss as follows:
(1) GRANTED with regard to Counts 5 and 9;
(2) GRANTED as to Counts 1, 2, 3, 6 and 7; and
(3) DENIED as to Counts 4, 8, 10 and 11, for reasons
lawsuit is about a hunt for buried treasure on Black Mesa, a
hill area located northwest of Espanola, New Mexico where
some believe that several large caches of gold treasure and
antiquities are hidden. Plaintiff 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 some
believe that several large caches of gold treasure and
antiquities are hidden in Spanish Vaults.
who is proceeding pro se, claims that he contractually agreed
with Defendants to fund the expedition. He alleges that other
individuals on the expedition conspired against him to steal
buried gold from Black Mesa land owned by one of the Cook
Defendants and stashed it elsewhere; and that the theft was
part of a scheme to prevent Plaintiff from discovering hidden
reserves of gold in order to deprive him of his share.
individual movants in this motion, Donald Patterson, Gerald
Lee Kemler and William Floto, are proceeding pro se.
The other two movant-companies, Expedition Resources, LLC
(“Expedition Resources”) and Expedition OPES
(“OPES”) were involved in the expedition.
Defendant Patterson and Kemler were two of the managing
members of these companies.
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.
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, ¶74. The team was
several days into the excavation when Plaintiff Roberts
discovered that Defendant Kemler had tried to hide the test
results from March 6, 2013 in his personal notebook.
Mid-March 2013: Defendants Patterson and Kemler
informed Plaintiff that they needed to return to Florida.
Plaintiff intended to use the time they were away to report
his concerns regarding suspicious activity at the expedition
site to Cook and Melancon. Doc. 3, ¶78.
March 24, 2013: Defendants Patterson and Kemler
began transporting the gold and artifacts they had secretly
removed and took them to Florida. Doc. 3, ¶82.
May 1 - Sept 13th 2013: Plaintiff pleaded with
Defendants Melancon, Fishman and Caster to meet with him and
resolve everything, but Defendants remained silent and waited
for the agreements to expire. Doc. 3, ¶ 99.
Mid- to late September 2013: Plaintiff and Richard
Cook entered into a verbal agreement to allow Plaintiff to
finish the excavation of the gold from the Spanish Vaults on
Black Mesa. However, Defendants Caster and Fishman would not
allow Roberts to return to the Black Mesa property. Fishman
filed for restraining order against Plaintiff which limited
direct communication between Plaintiff and the Cook
family. Doc. 3, ¶¶101, 106-115.
Feb 21, 2014: Gen Next sent Plaintiff e-mail
claiming that all contracts had expired; that Black Mesa
Expedition had ended poorly for all involved; and that they
had no intention of any further expedition of Black Mesa.
However, Plaintiff was aware that two weeks later, Defendants
Patterson, Kemler and Floto had located and removed gold from
Black Mesa on March 6, 2013. Plaintiff also discovered that
about two weeks later, Defendant Gen Next, Fishman and Caster
renewed efforts to recover gold and artifacts from Chamber #1
of the Spanish Vaults at Black Mesa. Doc. 3, ¶¶130,
complaint refers to three agreements or contracts that were
relevant to the expedition. The first was a contract between
Gen Next and Defendant Expedition Resources, executed in July
2010. This was a one-year exclusive Recovery Agreement
allowing Defendant Expedition Resources the right to access
the property for exploration. Doc. 3 at 45. The agreement
expired on July 22, 2011 without Expedition Resources ever
having entered the property due to a lack of funding. Am.
second agreement is the 2012 Joint Venture Agreement, which
is most relevant to the issues raised in this motion. This
agreement was between Plaintiff and Defendants
Patterson/Expedition Resources. It is captioned as a
“Memorandum of Understanding for a Joint Venture
Agreement.” Doc. 3 at 48. This agreement identifies and
refers to Plaintiff throughout as “GW” which is
the anacronym for his company “Gone Working.”
Under the Joint Venture Agreement, the purpose of the
expedition was “to locate, recover inventory, value and
sell or distribute to the Joint Venturers the natural and
cultural precious metals, gems, or artifacts.” Doc. 3
at 49. The signatories to the agreement are Gale Roberts as a
“Joint Venturer” and Donald Patterson as Managing
Member of Expedition Resources, LLC, and the agreement was
signed by both signatories on November 26, 2012. Under the
agreement, Plaintiff was required to pay all costs and
monthly salaries of $2, 000 to Defendants Melancon, Patterson
and Kemler. In return, Plaintiff would receive a share of the
value of whatever treasure was recovered, and his costs would
be reimbursed prior to any distribution of the liquidated
assets recovered as well. Doc. 3 at 52.
third agreement is the Black Mesa Recovery Agreement, dated
February 12, 2013 (referred to by Plaintiff as the “New
Agreement, ” see Doc. 3, ¶¶44 &
53). This was an exclusive contract between Defendants Gen
Next and Melancon/Antiquity Encounter. See Doc. 23-1
at 3. Defendants Richard Cook and Fishman signed this
agreement as Co-Managers of Gen Next.
12(b)(6) permits the Court to dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss, the complaint must have sufficient factual matter
that if true, states a claim to relief that is plausible on
its face. Ashcroft v. Iqbal, 556 U.S. 662, 677
(2009) (“Iqbal”). As such, a plaintiff's
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)
(“Twombly”). All well-pleaded factual
allegations are “viewed in the light most favorable to
the nonmoving party.” Brokers' Choice of Am.,
Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th
Cir. 2014). In ruling on a motion to dismiss, “a court
should disregard all conclusory statements of law and
consider whether the remaining specific factual allegations,
if assumed to be true, plausibly suggest the defendant is
liable.” Kan. Penn Gaming, LLC v. Collins, 656
F.3d 1210, 1214 (10th Cir. 2011). Mere “labels and
conclusions” or “formulaic recitation[s] of the
elements of a cause of action” will not suffice.
Twombly, 550 U.S. at 555.
a statute of limitations bar is an affirmative defense, it
may be resolved on a Rule 12(b)(6) motion to dismiss
“when the dates given in the complaint make clear that
the right sued upon has been extinguished.” Lymon
v. Aramark Corp., 728 F.Supp.2d 1207, 1215-16 (D.N.M.
2010) aff'd, 499 Fed.Appx. 771 (10th Cir. 2012);
(Cosgrove v. Kan. Dep't of Soc. & Rehab.
Servs., 332 Fed.Appx. 463 (10th Cir. 2009) (dismissal is
proper when it is clear from the face of the complaint that
the claims are time barred).
asserts the following claims against these Defendants
1. Intentional Misrepresentation of ...