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Tratt Industries, LLC v. Patterson

United States District Court, D. New Mexico

October 4, 2019

TRATT INDUSTRIES, LLC; TROY BAKER; and MATTHEW SHEPARD, Plaintiffs,
v.
DWIGHT L. PATTERSON and LAURIE M. PATTERSON, Individually and as Trustees of the PATTERSON REVOCABLE TRUST; SANTA FE BUSINESS BROKERS, LLC, d/b/a SAM GOLDENBERG & ASSOCIATES; SUNBELT NEW MEXICO BUSINESS BROKERAGE, LLC; and MICHAEL GREENE, Defendants, DWIGHT L. PATTERSON and LAURIE M. PATTERSON, Individually and as Trustees of the PATTERSON REVOCABLE TRUST, Third-Party Plaintiffs,
v.
XITECH INSTRUMENTS, INC., Third-Party Defendant.

         MEMORANDUM OPINION AND ORDER (1) DENYING PLAINTIFFS' MOTION FOR EXTENSION OF TIME (DOC. 23); (2) GRANTING COUNTERCLAIMANTS' REQUEST FOR ENTRY OF DEFAULT ON COUNTERCLAIM AGAINST TRATT INDUSTRIES, LLC (DOC. 24) (3) REFERENCE TO MAGISTRATE JUDGE TO ENTER NEW SCHEDULING ORDER and (4) ALLOWING PLAINTIFFS BAKER AND SHEPARD TO ANSWER COUNTERCLAIM (DOC. 17) WITHIN 21 DAYS OF FILING OF THIS ORDER

         THIS MATTER comes before the Court upon the following:

• Plaintiffs' Motion for Extension of Time to Amend Scheduling Order filed on September 6, 2019 by Plaintiffs Troy Baker and Matthew Shepard who are proceeding pro se (Doc. 23); and
• Request for Clerk's Entry of Default on Counterclaim against Tratt Industries, LLC, filed by Counterclaimants Dwight and Laurie Patterson (Doc. 24).

         Having reviewed the parties' briefs and applicable law, the Court finds that Plaintiffs' motion for extension of time lacks merit and therefore is DENIED, and that Counterclaimants' request for entry of default against Tratt Industries, LLC is meritorious and therefore is GRANTED. Having entered rulings on these motions, the case is referred back to the Magistrate Judge to enter a new scheduling order that resets deadlines in this case. Finally, Plaintiffs Baker and Shepard are required to file a timely answer to the Patterson's counterclaims (Doc. 17) according to the Federal Rules of Civil Procedure.

         BACKGROUND

         Plaintiffs are suing Defendants for breach of contract, negligent misrepresentations, fraud and other related state torts pertaining to their purchase of a company from Defendants. According to the complaint, Third-Party Defendant Xitech Instruments, Inc. (“Xitech”) is in the business of selling groundwater remediation systems which are designed to treat polluted groundwater. Its primary customers are environmental consultants who purchase the systems for resale to and use by their clients.

         Plaintiff Tratt Industries, LLC (“Tratt”) is a Wyoming limited liability company which is in the business to identify and acquire small manufacturing companies operating in environmental and/or safety areas, such as Xitech, and then to operate and profitably grow the companies. Tratt's managing members are Troy Baker, a citizen of Nevada and Matthew Shepard, a citizen of Kansas. In March of 2018, Tratt purchased Xitech from the Patterson Revocable Trust (“Trust”) which owned the stock of Xitech Instruments, Inc. (“Xitech”). Defendants and Counter-claimants Dwight and Laurie Patterson are trustees of the Trust.

         Defendant Santa Fe Business Brokers, LLC, d/b/a Sam Goldenberg & Associates is a New Mexico limited liability company. Defendant Sunbelt New Mexico Business Brokerage (“Sunbelt”) is a New Mexico limited liability company that is the affiliate and sister company of Santa Fe Business Brokers, LLC (collectively, “SGA”). Defendant Michael Greene (“Greene”) is the managing member and owner of both affiliated companies that constitute SGA and is a citizen of New Mexico. SGA and Green acted as the agents for the Trust in the sale.

         Plaintiffs Tratt, Baker and Shepard were initially represented by counsel, but counsel sought to withdraw for unspecified reasons and the Court granted the request on July 26, 2019. (Doc. 22, “July 26th Order”). The Court specifically noted in the order granting withdrawal that:

(1) local rules require Tratt, as a business entity, to be represented by counsel and that “[a]bsent entry of appearance by a new attorney, any filings made by Tratt Industries, LLC may be stricken and default judgment or other sanctions imposed; and that
(2) Plaintiffs had thirty (30) days after entry of the Order for new counsel to enter an appearance on behalf of any of the Plaintiffs.

Doc. 22 at 2. On the same day, the Court also entered an Amended Initial Scheduling Order extending the deadlines for the parties' preparation of a Joint Status Report and Provisional Discovery Plan (“JSR”), requiring a “meet and confer” between the parties by September 4, 2019. Doc. 21.

         As of this date, no counsel has entered an appearance for either Tratt, Baker or Shepard. Plaintiffs filed the instant motion for an extension of time on September 6, 2019, over two weeks ...


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