United States District Court, D. Idaho
JH KELLY, LLC, a Washington limited liability company, Plaintiff,
TIANWEI NEW ENERGY HOLDINGS CO., LTD., a People's Republic of China company, TAO MIKE ZHANG, WEI XIA, DAYI SEAN LIU, and DOES 1-10, Defendants.
MEMORANDUM DECISION AND ORDER
LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE.
the Court is Plaintiff JH Kelly, LLC's Second Motion for
an Extension of Time to File an Amended Complaint (Dkt. 77).
JH Kelly asks the Court to extend the September 28, 2018
deadline for filing an amended complaint to November 30,
2018. Defendant Tianwei does not oppose the motion, but the
other defendants say this case has dragged on for too long
already; they ask the Court to deny the motion. See
Dkts. 79, 80. For the reasons explained below, the Court will
grant an extension, but only until November 9, 2018, not
until November 30, 2018.
Kelly filed this lawsuit in August 2013. The Court dismissed
JH Kelly's first complaint with leave to amend and later
dismissed JH Kelly's first amended complaint without
leave to amend. In December 2017, the Ninth Circuit reversed,
concluding that the first amended complaint came “very
close to stating a plausible claim of fraud with the
requisite particularity.” Dkt. 67, at 2.
the case was on appeal, Defendant Tianwei entered into
bankruptcy proceedings in China. In February 2018, the
parties reported that because the Chinese bankruptcy could
potentially impact this case, JH Kelly should be granted an
extension of time in which to file an amended complaint.
See Stipulation, Dkt. 71, ¶ 5. The Court
granted that extension, indicating that Tianwei should notify
the Court when the Chinese bankruptcy proceedings had
concluded, and further ordering JH Kelly to file an amended
complaint within 21 days of the date that notice was filed.
See Order, Dkt. 72.
20, 2018, Tianwei notified the Court that a company known as
Chengdu Shuangliu JuYuan Financing & Investment
Management Services Co., Ltd. had purchased Tianwei's
assets. Tianwei further informed the Court that JH Kelly,
Tianwei, and Chengdu were in the process of negotiating a
global settlement of all those entities' claims among one
another. Dkt. 73, at 2. Because some of those claims were
pending in bankruptcy court, Tianwei indicated that the
bankruptcy trustee would need to seek the bankruptcy
court's approval of the settlement. Id. Tianwei
estimated that the bankruptcy court approval would take at
least 60 days.
Court thus granted JH Kelly another extension - this time
through September 28, 2018 - for filing an amended complaint.
As that deadline approached, JH Kelly asked for another
extension. See Dkt. 77. JH Kelly indicated that
“it took longer than anticipated to finalize the
settlement agreement, ” and that the motion to approve
the settlement was not filed with the bankruptcy court until
September 7, 2018. Id. at 2. That motion is now set
for hearing on October 16, 2018. Id.
Kelly reports that it cannot dismiss Tianwei as a defendant
from this action until (1) the bankruptcy court approves the
settlement, and (2) the chapter 7 trustee in the consolidated
bankruptcy cases of Hoku Materials, Inc. and Hoku Corporation
pays “an amount currently held by the Chapter 7
trustee” to Tianwei's attorneys. Id.
individual defendants say they “should not be forced to
wait on tenterhooks while Plaintiff attempts to resolve its
dispute with Defendant Tianwei through settlement
negotiations in the bankruptcy proceedings.”
Response, Dkt. 79, at 2; see also Response
Dkt. 80 (joining Dkt. 79).
Court agrees that it is time to move this case along -
regardless of whether JH Kelly is ultimately able to settle
its dispute with Tianwei. That said, however, and given the
October 16, 2018 hearing scheduled in bankruptcy court, the
Court will grant a final extension - through and including
November 9, 2018 - for JH Kelly to file an amended complaint.
This will allow JH Kelly and Tianwei a chance to resolve
their differences, but it will also address the other
defendants' desire to move this case forward.
IS ORDERED that Plaintiff JH Kelly's Second
Motion for an Extension of Time to File an Amended Complaint
(Dkt. 77) is GRANTED IN PART and DENIEDIN PART. The motion is granted to the extent
that the Court will allow JH Kelly through and including
November 9, 2018 to file an amended