United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
matter is before the court because several parties and
non-parties alike have filed a variety of motions seeking a
broad collection of relief. See Docs. 112, 121,
& 124. Though their motions cover much ground, all three
are based on plaintiff's efforts to collect the judgment
in this case. See Docs. 40 (granting plaintiff's
Motion for Default Judgment), 41 (Judgment in plaintiff's
favor). After reviewing the pertinent background, this order
decides some of the pending motions and, for other aspects of
these motions, establishes procedures to decide the remaining
court entered judgment for plaintiff Kendra Ross against four
defendants on May 23, 2018. Doc. 41. Less than 30 days later,
defendant Royall Jenkins-one of the four defendants who
defaulted on their right to defend the claims asserted in the
case and are liable on the court's judgment-moved for a
new trial. Doc. 42. The court denied Mr. Jenkins's new
trial motion on October 2, 2018. Doc. 93. While Mr.
Jenkins's motion was pending, plaintiff began trying to
collect on her judgment. Plaintiff began by asking the court
to issue a writ of execution. Doc. 45. And the court granted
plaintiff's motion, issuing the requested writ in the
same order that denied Mr. Jenkins's new trial motion.
Specifically, the court directed the United States Marshal or
other process server to serve a copy of the writ on each of
the four defendants/judgment debtors under Kan. Stat. Ann.
§ 60-2401. Doc. 93 at 13.
Clerk of the Court complied, mailing the writ to all four
defendants. Doc. 94. And on October 11, 2018, the Marshal
served the writ personally on Mr. Griegory Moten-the
registered agent for defendants The Value Creators LLC, The
Value Creators, Inc., and The Value Creators, Inc. f/k/a The
United Nation of Islam, Inc.-at an address on Quindaro
Boulevard in Kansas City, Kansas. Docs. 95, 96, & 97. The
Marshal then served a Deputy Assistant Secretary of State for
Kansas with the execution writs on November 8, 2018. Docs.
104, 105, & 106. Plaintiff apparently takes the position
that Kansas law makes the Secretary of State-or his
designee-an authorized representative to accept service for
the three corporate defendants. See Doc. 45 at 3
(listing the Kansas Secretary of State's Office as one
address for the three corporate judgment debtors).
Marshal's efforts to serve the writ of execution on the
fourth defendant/judgment debtor-Mr. Royall
Jenkins-didn't go as smoothly. The Marshal reported that
he thrice had tried to serve Mr. Jenkins at a street address
Mr. Jenkins himself had used in various court
filings. See Doc. 111. But the Marshal
reported that he never could locate Mr. Jenkins at that
address. Id. On November 20, 2018, the Marshal
certified that he had failed to serve Mr. Jenkins personally
with the Writ of Execution. Id.
did not confine her efforts to collect her judgment to these
writs of execution. She moved for a Judgment Debtors
Examination, which the court held on September 13, 2018.
Docs. 53, 60. None of the judgment debtors appeared. Doc. 88.
Plaintiff applied for several writs of garnishment from
various banks; some of those banks deposited funds with the
court. Docs. 48, 49, 50, 51, 54, 56, 58, 59, 72, 73, 79,
& 82 (applications for writs of garnishment, orders
issuing writs of garnishment, and orders granting
plaintiff's motions to deposit funds). Plaintiff moved to
compel the judgment debtors to respond to post-judgment
discovery requests, which they failed to do. Docs. 70, 78.
The judgment debtors again failed to appear, as ordered by
the court, to show cause why they should not be punished for
contempt of court for failing to appear for their Judgment
Debtors Examination. Docs. 86 (plaintiff's Motion for
Order to Show Cause), 91 (order granting motion), 98 (minute
entry for the October 18, 2018, Show Cause Hearing).
also secured subpoenas seeking to require Ephraim J. Woods,
Griegory L. Moten, Atif Abdel-Khaliq, and Marvin L. McIntosh
to appear for depositions on November 13 and 14, 2018.
See Doc. 113-1. Plaintiff's process servers
filed Affidavits of Service asserting that they had served
three of the witnesses-Messrs. Woods, Moten, and McIntosh-on
November 2, 2018. Doc. 113-2 at 6, 11, 20. Specifically, the
process server's affidavits reported that, “per
attorney request, ” she had posted the subpoenas for
Mr. Woods, Mr. Moten, and Mr. McIntosh at the Quindaro
Boulevard address where, earlier, the Marshal had served Mr.
Moten with the Writ of Execution. Id. at 3, 8, 17.
Also, the process server delivered the subpoenas for these
three witnesses to a woman residing at the witnesses'
“usual place of abode”-the address on North 10th
Street in Kansas City, Kansas, that Mr. Jenkins had used in
his filings with the court. Id. at 5-6, 10-11,
19-20. The process server's affidavits represented that
she had delivered these subpoenas to a
“co-occupant” of the 10th Street address who had
refused to divulge her name. Id. at 6, 11, 20. The
server's affidavits described this co-occupant as a woman
“approximately 43”-years-old who was wearing a
hat. Id. The server also estimated the
co-occupant's height and weight. Id.
efforts to serve Mr. Abdel-Khaliq followed a different path.
The process server's Proof of Service form reports that
he could not locate the witness at his office address on
Minnesota Avenue in Kansas City, Kansas. Doc. 113-2 at 14-15.
Another process server, reportedly acting on counsel's
direction, also tried to serve Mr. Abdel-Khaliq at another
office address on Meadowlark Lane in Kansas City, Kansas.
Doc. 113-2 at 13. Evidently, the server did not locate the
witness there, so she “post[ed]” the subpoena at
the Meadowlark Lane address “per [a]ttorney
record submitted with plaintiff's motion also establishes
that none of the four witnesses appeared at the time and
place that each deposition subpoena designated. Doc. 113-3.
Plaintiff responded by filing one of the motions addressed in
this order. See Docs. 112 & 113. That
motion-asserting that all four witnesses had failed to appear
as ordered in their deposition subpoenas-seeks an order
directing the witnesses to show cause why the court should
not hold them in contempt. Doc. 112. Two days after plaintiff
had filed her motion seeking a show cause order, three of the
absent witnesses-Messrs. Moten, Woods, and McIntosh-each made
his own filing. Docs. 114-116. All three filings are
virtually identical to one another, so the court discusses
them together in greater detail in Part II.
fourth person-Dana M. Peach-filed Doc. 117 on the same day
that Messrs. Moten, Woods, and McIntosh had filed Docs.
114-116. Dana Peach's filing is virtually identical to
the other three non-party filings. All four are labeled in
the same unusual fashion: “NOTICE AND DEMAND
COUNTERCLAIM.” And, while the four filings appear to
request some form of relief, their content also suggests the
filers intended them, at least in part, to respond to
plaintiff's show cause motion (Doc. 112). See
Docs. 114-117 at ¶ 8 (“[T]he ‘personal'
service owed to [name of filer] was in fact, personally
served on a building. The building is permanently attached to
the ground on a solid foundation and therefore, is unable to
appear for a deposition, unless Plaintiffs [sic] would like
to come get the building they served but that would mean this
deposition may need to be relocated.”).
subpoenas engendered even more developments and, ultimately,
the three motions addressed in this order. The court provides
more procedural history, as pertinent to each motion, in Part
Analysis: The Three Pending Motions
to bring some order to things, the court, in its discretion,
divides the pending requests for relief into two parts,
below. First, in Part A, the court considers plaintiff's
Motion for Order to Show Cause (Doc. 112). Then, in part B,
the court addresses: (1) the “Request for In Camera
Hearing [to] Show Cause to Dismiss All Action [Under]
Fed.R.Civ.P. 60 [for] Fraud Upon the Court” (Doc. 124),
filed by non-party Ephraim ...