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Ross v. Jenkins

United States District Court, D. Kansas

January 4, 2019

KENDRA ROSS, Plaintiff,
v.
ROYALL JENKINS, et al., Defendants.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE UNITED STATES DISTRICT JUDGE.

         This 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 issues.

         I. Background

         The 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.

         The 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).

         The 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.[1] 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.

         Plaintiff 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).

         Plaintiff 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.

         The 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 request.” Id.

         The 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.

         A 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.”).[2]

         The 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 II.

         II. Analysis: The Three Pending Motions

         Trying 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 ...


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