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SW Artz Private Equity L.L.C. v. Firstgold Corp.

January 22, 2010

SW ARTZ PRIVATE EQUITY L.L.C., A GEORGIA LIMITED LIABILITY COMPANY, PLAINTIFF,
v.
FIRSTGOLD CORP., A DELAWARE CORPORATION, F/K/A NEWGOLD, INC., A DELAWARE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Siragusa, J.

DECISION & ORDER

INTRODUCTION

This diversity contract case is before the Court on Plaintiff's motion (Docket No. 22) for summary judgment. For the reasons stated below, the application is granted.

FACTUAL BACKGROUND

On September 25, 2009, the Court granted defense counsel's application to withdraw, specifying in its Decision and Order: to inform Defendant that following counsel's withdrawal, Defendant would have thirty days in which to obtain substitute counsel, and that Defendant's failure to do so could result in the entry of a judgment for the full amount of money sought by Plaintiff..[T]he Court finds that Defendant has been adequately apprised of the need to continue to defend this litigation, and that his failure to obtain substitute counsel by August 14, 2009, could subject him to entry of a default judgment.

(Decision and Order, Swartz Private Equity, LLC v. Firstgold Corp., No. 07-CV-6447-CJS-JW F (W.D.N.Y. Sept. 28, 2009), 1--2.) To date, Defendant has not responded to the pending motion for summary judgment,*fn1 nor has the Court received any indication that Defendant has sought new counsel to represent its interests In this lawsuit.

The following Plaintiff's recitation of the facts is undisputed and will be deemed admitted by Defendant for the purpose of adjudicating the pending summary judgment motion. W .D.N.Y. Loc. R. Civ. P. 56.1(c) (2003).

1. Plaintiff Swartz Private Equity, LLC ("Swartz") is a limited liability company organized under the law of the State of Georgia with its office and principal place of business at 1120 Sanctuary Parkway, Suite 325, Alpharetta, Georgia 30004. (Complaint, ¶ 1; Docket #1).

2. Defendant Firstgold Corp ("Firstgold") is a corporation organized and existing under the laws of the State of Delaware, with its office and principle place of business at 3108 Gabbert Drive, Suite 210, Cameron Park, California 95682. (Answer; Docket # 6).

3. The documents attached to the Complaint and to the Declaration of P. Bradford Hathorn, sworn to July 13, 2009 ("Hathorn Declaration"), (collectively the "Underlying Documents") are true and correct copies of the originals of such documents and were duly executed on behalf of the parties. (Hathorn Declaration, ¶5; Answer, ¶6).

4. At the time of the execution of the Underlying Documents, Firstgold was seeking additional capital. (Hathorn Declaration, ¶4).

5. At the time of the execution of the Underlying Documents, Swartz was in a position to commit to provide the investment sought by Firstgold. (Hathorn Declaration, ¶4).

6. As a result of the execution of the Underlying Documents, Firstgold had the right to require Swartz to invest up to $20,000,000 in Firstgold. (Hathorn Declaration, ¶6).

7. Pursuant to the Registration Rights Agreement (Hathorn Declaration, Exhibit G), Firstgold had the obligation to file a registration statement with the United States Securities and ...


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