Home Design Services, Inc. v. Statcon Enterprises, LLC et al

Filing 56

MINUTE ORDER granting 54 untitled pleading filed by Defendants Jared and Rosalind States. The Settlement Conference set for 05/04/09 at 1:30 PM is vacated and will be reset at a later date, if appropriate. Status Conference set for 5/14/2009 at 10:00 AM in Courtroom C204 before Magistrate Judge Kristen L. Mix, by Magistrate Judge Kristen L. Mix on 05/01/09.(wjc, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 08-cv-01717-MSK-KLM HOME DESIGN SERVICES, INC., Plaintiff, v. STATCON ENTERPRISES, LLC, STATES BUILT, LLC, JARED STATES, ROSALIND STATES, and KEVIN G. CONDERINO, Defendants. _____________________________________________________________________ MINUTE ORDER _____________________________________________________________________ ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX This matter is before the Court on an untitled pleading filed by Defendants Jared and Rosalind States ("States Defendants") [Docket No. 54; Filed April 30, 2009] (the "Motion"). The Motion seeks to vacate the Settlement Conference set for May 4, 2009 at 1:30 p.m. or to excuse these Defendants. The States Defendants assert that they will shortly be filing for protection under the Bankruptcy Code. As a preliminary matter, the Motion does not comply with Fed. R. Civ. P. 5(d) in that it does not contain a certificate of service indicating that it was served on any of the other parties. Moreover, the Motion does not comply with D.C. Colo. L. Civ. R. 7.1(A) in that Defendants fail to certify that they conferred with the other parties regarding the relief requested in the Motion. Either deficiency justifies denial of the Motion. However, the Court notes that default has been entered against Defendants Statcon Enterprises, LLC and States Built, LLC due to their failure to respond to the original complaint [Docket No. 19]. Further, the Court notes that Defendant Kevin G. Conderino is proceeding pro se and has not submitted a Confidential Settlement Statement in advance of the Settlement Conference. Given the current posture of this case, IT IS HEREBY ORDERED that the Motion is GRANTED. The Settlement Conference set for May 4, 2009 at 1:30 p.m. is vacated and will be reset at a later date, it appropriate. IT IS FURTHER ORDERED that a Status Conference is set for May 14, 2009 at 10:00 a.m. in Courtroom C-204, Second Floor, Byron G. Rogers United States Courthouse, 1929 Stout Street, Denver, Colorado to address the status of Plaintiff's case, including the

potential impact of the impending bankruptcy of States Defendants, and Defendant Conderino's obligations as a pro se litigant in a federal lawsuit. States Defendants may appear telephonically by contacting Chambers at [phone] on the date and time set for the conference. All other parties shall appear in person. IT IS FURTHER ORDERED that proof of service of the summons and amended complaint [Docket No. 30] on Defendant Statcon shall be filed no later than May 11, 2009, or Plaintiff shall provide good cause for its failure to serve this Defendant at the Status Conference.1 Dated: May 1, 2009

Pursuant to Fed. R. Civ. P. 5(a)(2), Plaintiff is not required to serve an amended pleading on a defaulted party unless it contains a new claim against that party. The amended complaint [#30] asserts a claim against Defendant Statcon that is not also asserted against it in the original complaint (claim one). Therefore, if it has not already done so, Plaintiff is obligated to serve a copy of the summons and amended complaint on Defendant Statcon.

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