United States District Court, D. Kansas
MEMORANDUM AND ORDER
DANIEL D. CRABTREE, District Judge.
On December 17, 2014, Judge K. Gary Sebelius entered an order directing plaintiff to show cause why the Court should not dismiss its Complaint against John Blomfeld for failing to serve him and its Complaint against Shelby Weaver for failing to prosecute its action against her. This matter comes before the Court on plaintiff's Response to the Order to Show Cause (Doc. 12). For the reasons set forth below, the Court finds that plaintiff has shown good cause why the Court should not dismiss its Complaint against defendants Blomfeld and Weaver.
Plaintiff filed its Complaint in this case on May 28, 2014 (Doc. 1). The Court granted plaintiff an extension of time up to and including November 24, 2014, to serve defendants (Doc. 7). Plaintiff did not serve defendant John Blomfeld by this deadline.
Plaintiff did serve defendants Hugh Black-St. Mary's Enterprises, Inc. and Weaver on November 17, 2014 (Doc. 8). On December 12, 2014, plaintiff filed its Suggestion of Bankruptcy (Doc. 9), explaining that defendant Hugh Black-St. Mary's Enterprises, Inc. had filed a Chapter 11 petition in the Bankruptcy Court for the Northern District of Texas on October 7, 2014. Defendant Weaver's Answer was due on December 8, 2014, but Weaver failed to file an Answer by that deadline. However, both defendants Blomfeld and Weaver filed an Answer to the Complaint pro se on December 22, 2014 (Doc. 11), albeit 14 days after defendant Weaver's deadline for answering the Complaint had expired.
II. Response to Show Cause Order
As stated above, Judge Sebelius, on December 17, 2014, issued an Order to Show Cause (Doc. 10), ordering plaintiff to show good cause why: (1) the Court should not dismiss the Complaint against defendant Blomfeld for failing to obtain service; and (2) the Court should not dismiss the Complaint against defendant Weaver for failing to prosecute under Fed.R.Civ.P. 41(b) because plaintiff had failed to take action against defendant Weaver after Weaver failed to file an Answer by the December 8, 2014 deadline.
On December 30, 2014, plaintiff filed a Response to the Order to Show Cause (Doc. 12), arguing that it had shown good cause for why the Court should not dismiss the action against defendants Blomfeld and Weaver. In that response, plaintiff explains that it attempted to serve defendant Blomfeld at two different addresses known to plaintiff or available through public sources. One of the addresses did not exist, and the house at the other address was vacant. The process server could not find defendant Blomfeld and therefore could not serve him with this lawsuit.
Plaintiff also explains that defendant Weaver called plaintiff's counsel on December 8, 2014 (the day her Answer was due) and reported that she and defendant Blomfeld would file their Answers, pro se. Defendant Weaver also requested a copy of the process server's email to plaintiff's counsel stating the date and time of service on defendant Weaver. Plaintiff's counsel forwarded this email to defendant Weaver per her request.
On December 16, 2014, defendants Blomfeld and Weaver faxed their Answer to plaintiff's counsel. On December 17, 2014, defendants Blomfeld and Weaver mailed their Answer to the Clerk of the Court (Doc. 11-1), which the Clerk of the Court received and filed on December 22, 2014 (Docs. 11, 11-1).
Plaintiff argues that there is good cause for failing to serve defendant Blomfeld because the process server could not find him at any of the addresses known to plaintiff or available from public sources. Plaintiff also asserts that Blomfeld voluntarily has entered his appearance in this case by filing an Answer, and, therefore, the Court should not dismiss him from this action. Otherwise, plaintiff argues it is contrary to the efficient administration of justice to dismiss Blomfeld without prejudice from the action now, only to require plaintiff to file a motion to add him as a party to lawsuit already naming him as a defendant.
Plaintiff also argues that there is good cause for not seeking a default judgment against defendant Weaver after she failed to file an Answer timely. As explained above, defendant Weaver contacted plaintiff's counsel on the day her Answer was due and represented that she and defendant Blomfeld would be filing their Answers pro se. Based on defendant Weaver's representations that she would appear and answer the lawsuit, plaintiff did not take steps to obtain a default judgment against her.
Plaintiff also explains in its response that, in October 2014, it entered into an agreement with the receiver of the property at issue in this lawsuit, which is located in Las Vegas, Nevada. The receiver agreed to operate the property as a Value Place property, and, with plaintiff's consent, the receiver has used Value Place intellectual property to identify the property as a Value Place property. Plaintiff states that because of this agreement, it currently has no need for the preliminary injunctive relief it requested in this lawsuit. See Plaintiff's Motion for Issuance of Preliminary Injunction and Other Equitable Relief (Doc. 4). Based on plaintiff's representations and these changed circumstances, the Court denies plaintiff's Motion for Issuance of Preliminary Injunction and Other Equitable Relief (Doc. 4) as moot.
Plaintiff also describes a proposed settlement agreement that certain parties have submitted to the bankruptcy court for approval in defendant Hugh Black-St. Mary's Enterprises, Inc.'s Chapter 11 bankruptcy proceeding, as well as negotiations about a proposed asset sale/purchase of the subject property that would convey the property (and presumably the right to use plaintiff's intellectual property). Plaintiff asserts that while the settlement agreement in the bankruptcy proceeding and the proposed asset sale/purchase agreement may resolve some claims asserted in the lawsuit, they do not affect the amounts plaintiff claims defendants Blomfeld and Weaver owe to plaintiff. Thus, plaintiff contends that the remaining issues in this action include: (1) its claim against defendants Blomfeld and Weaver for ...