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Gustavson & Associates, LLC v. Skyland Petroleum Pty Ltd.

United States District Court, D. Colorado

December 19, 2018

GUSTAVSON & ASSOCIATES, LLC, Plaintiff,
v.
SKYLAND PETROLEUM PTY LTD f/k/a Skyland Petroleum Limited ACN 072 350 817; SKYLAND PETROLEUM HOLDINGS LTD a/k/a Skyland Petroleum Group Limited; SKYLAND PETROLEUM GROUP LIMITED ARBN 613928671; SKYLAND SERVICES LLC; and DOMENIC VINCENT MARTINO, an individual, Defendants.

          ORDER

          R. Brooke Jackson United States District Judge

         This order addresses three motions: (1) Motion to Enforce Local Rule 5(b), ECF No. 37: GRANTED in part and DENIED in part; (2) Motion for Summary Judgment, ECF No. 39: DENIED; and (3) Motion to Withdraw and Waiver of Jury Demand, ECF No. 42: GRANTED.

         I. BACKGROUND

         This is essentially a collection case. I described the general background in an order issued on March 30, 2018 in which I denied plaintiff's motion to strike three defendants' notice of removal, and I denied the same three defendants' motion to dismiss. ECF No. 26. I will begin this order by repeating, more or less, the same background.

         A. Parties.

         The plaintiff is Gustavson Associates, LLC. To reduce confusion resulting from the appearance in the chronology of many variations on “Skyland Petroleum” in the pleadings, I will bold and capitalize the five named defendants where their names appear unless it is within a direct quote. They are as follows:

(1) SKYLAND PETROLEUM PTY LTD f/k/a Skyland Petroleum Limited ACN 072 350 817.
(2) SKYLAND PETROLEUM HOLDINGS LTD a/k/a Skyland Petroleum Group Limited.
(3) SKYLAND PETROLEUM GROUP LIMITED ARBN 613 928 671.
(4) SKYLAND SERVICES LLC.[1]
(5) DOMENIC VINCENT MARTINO.

         B. Facts.

         The following are either facts alleged by the plaintiff (and for present purposes assumed to be true) or facts established by documents in the record of the case.

         1. The plaintiff, Gustavson Associates, LLC, is an engineering and consulting company based in Boulder, Colorado.

         2. On April 13, 2016 Skyland Petroleum Limited (previously known as MUI Corporation Limited) (“the Company”) issued a press release announcing the completion of its acquisition of SKYLAND PETROLEUM GROUP LIMITED and its subsidiaries. ECF No. 10-13. The announcement indicated that the Company's board of directors henceforth would be Dr. David Robson, Chairman and Managing Director; Elizabeth Landles, Executive Director; and Mark Sarssam, Executive Director. It identified five Non-Executive Directors: Timothy Hargreaves, Piers Johnson, DOMENIC MARTINO, Raden Sukhyar, and Ghassan Zok. Id.

         3. An organization chart, undated but apparently taken from a Skyland document at or after the foregoing announcement, shows “MUI Corporation Limited (to be renamed ‘Skyland Petroleum Limited')” at the top of the chain; then SKYLAND PETROLEUM GROUP LIMITED (Cayman Islands) immediately under Skyland Petroleum Limited; and then six entities, presumably subsidiaries of SKYLAND PETROLEUM GROUP LIMITED. One of those subsidiaries is Skyland Management Consultancies (Dubai, UAE), described in the chart as “Dubai staff.” Another is Skyland Services Limited (Tajikistan), described as “Tajik staff.” ECF No. 10-14.

         4. On June 28, 2016 Gustavson entered into a “Professional Services Agreement” with “Skyland Petroleum, ” an entity with a business address in Dubai, U.A.E, and a billing address of Skyland Petroleum, P.O. Box 388, St. Peter Port, Guernsey GY1 3FG British Isles. ECF No. 10-1. Under this contract Gustavson agreed to evaluate certain assets being considered for acquisition. The estimated fee for the work was $26, 770 with a retainer of $10, 000. In its amended complaint Gustavson refers to these assets as the “Fund Energy assets.” ECF No. 6 at ¶11. Gustavson refers to this contract as the PSA 1 agreement or the PSA 1 contract.

         5. On July 11, 2016 Gustavson entered into a second Professional Services Agreement with Skyland Petroleum for evaluation of assets being considered for acquisition. ECF No. 10-2. Plaintiff alleges that “Skyland had suspended further interest in the Fund Energy assets and requested Gustavson to shift its efforts towards evaluating the Mirninsky licenses in the same general area.” ECF No. 6 at ¶13. Gustavson refers to this contract as the PSA 2 agreement or the PSA 2 contract. This contract has a stamp over the signature block which says, “Skyland Petroleum Group, ” and underneath that in smaller letters the words “Skyland Management Consultants” and the Post Office Box address of the Dubai office on the first page of the contract.

         6. Gustavson provided a report to Skyland Petroleum entitled Estimate of Reserves and Resources for the Mirninsky License Area, Located in Siberia. ECF Nos. 10-3 and 10-4 at 1-43. This report had a report date of October 12, 2016 and an effective date of January 1, 2017. Gustavson also provided an Addendum to the report with a ...


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