Kline Enterprises Inc. v. Swenson et al

Filing 103

MEMORANDUM DECISION AND ORDER granting 49 Motion for Reconsideration ; deeming as moot 64 Motion to Dismiss for Failure to State a Claim. Defendant Gary Bringhurst is hereby DISMISSED as a defendant. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

KLINE ENTERPRISES, INC., a California
corporation,
Plaintiff,

Case No. 1:11-CV-535-BLW
MEMORANDUM DECISION AND
ORDER

v.
DOUGLAS SWENSON, an individual;
JEREMY SWENSON, an individual;
DAVID SWENSON, an individual;
GARY BRINGHURST, an individual;
MATTHEW DUCKETT, an individual;
THOMAS VAR REEVE, an individual;
DANIEL ORR, an individual;
DAVID ROTTMAN, an individual;
JOHN MAYERON, an individual;
CHARLES E. HASSARD, an individual;
THOMAS A. KRAUSE, an individual;
DAN FALLS, an individual; DBSI TIEGS
979, LLC, an Idaho limited liability company;
and JOHN and JANE DOES 1 THROUGH 10,
whose true identities are unknown,
Defendants.

INTRODUCTION
The Court has before it a motion for reconsideration filed by defendants Gary
Bringhurst and David Swenson, and a motion to dismiss filed by these two defendants
along with Jeremy Swenson. The motions are fully briefed and at issue. For the reasons
set forth below, the Court will grant the motion for reconsideration and deem moot the
Memorandum Decision & Order - 1

motion to dismiss.
ANALYSIS
In its earlier decision, the Court found that plaintiff’s service on defendants Gary
Bringhurst and David Swenson was not timely. Plaintiff’s counsel, Ron Shepard,
explained that he was wrongfully enticed to serve these defendants late by defense
counsel Curtis McKenzie. Shepard claimed that McKenzie represented he had authority
to accept service for his clients, and Shepard accordingly delivered the service papers to
McKenzie on October 12th, eight days before the service deadline expired on October
20th. McKenzie did nothing until 6 days after the deadline expired, when he told Shepard
that he now lacked authority to accept service.
At first glance, this appeared to constitute enticement that would justify extending
the service deadline. The Court noted, however, that this initial appearance took on a new
look after examining Shepard’s letter delivering the papers to McKenzie on Oct 12th:
On October 12th, Shepherd told McKenzie that if he heard nothing by October
14th, he would assume McKenzie lacked authority to accept service and he
would proceed to directly serve Swenson and Bringhurst. Thus, when
McKenzie silently sat on the service papers, he was entitled to assume that
Shepherd would proceed with direct service. Far from enticing Shepherd into
inactivity, McKenzie’s silence was a clear message to Shepherd – under
Shepherd’s self-imposed deadline – that he needed to take immediate action.
Shepherd still had six days to serve the two men, and there is no evidence that
they evaded service or made it more difficult in any way. It appears that it was
Shepherd’s failure to follow through on his representation that he would
directly serve the two men – and not any wrongful enticement by McKenzie
– that resulted in the failure to meet the deadline.
See Memorandum Decision (Dkt. No. 47).

Memorandum Decision & Order - 2

Based on this analysis, the Court was prepared to dismiss Swenson and Bringhurst,
except for one thing: The analysis contained in the quote above was entirely a construct
of the Court because McKenzie failed to file any reply to Shepard’s serious charges of
enticement. Such a direct attack on an attorney’s integrity would surely draw a quick and
aggressive rebuttal if it was unfounded. McKenzie’s failure to respond raised a question
whether he was conceding the charge. The Court was therefore reluctant to grant
McKenzie’s motion until he provided some response.
McKenzie has now filed that response in the form of a motion to reconsider. He
explains that his lack of response was not intended to be a concession of any kind, and
that he has nothing to add to the Court’s own analysis, quoted above, that he was not
guilty of enticement. He points out accurately that he was not required to file a reply
brief and that his failure to do so should not be taken as a concession on the issues.
After examining the briefing on the motion to reconsider, the Court’s concern over
McKenzie’s possible concession is now resolved, and the Court finds that he did not
concede the charge of enticement. Shepard responds that when he did not hear from
McKenzie by October 14th, he “remained optimistic that defendants and defense counsel
would ultimately honor the prior agreement to accept service.” See Response Brief (Dkt.
No. 54) at pg. 4. But his optimism was entirely unfounded because he had told McKenzie
that if he did not hear anything by October 14th – six days prior to the deadline – he
would assume McKenzie no longer had authority and would proceed to serve the
defendants personally. As the Court found above, McKenzie’s silence cannot be
Memorandum Decision & Order - 3

construed as enticement under these circumstances.
That removes the only obstacle to implementing the Court’s analysis, quoted
above, finding that there is no excuse for the late service. Accordingly, the Court will
grant the motion to reconsider. The Court notes that since the motion to reconsider was
filed, the parties have filed a stipulation to dismiss defendants David Swenson and Jeremy
Swenson. Thus, the only remaining defendant tied to the motion to reconsider is Gary
Bringhurst, and the Court will limit its order of dismissal to him.
Defendants David and Jeremy Swenson and Gary Bringhurst have also filed a
motion to dismiss under Rule 12(b)(6). However, because all three defendants have now
been dismissed, this motion is moot.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to reconsider
(docket no. 49) is GRANTED.
IT IS FURTHER ORDERED, that defendant Gary Bringhurst is hereby
DISMISSED as a defendant.
IT IS FURTHER ORDERED, that the motion to dismiss (docket no. 64) is
DEEMED MOOT.

Memorandum Decision & Order - 4

DATED: March 25, 2013

Honorable B. Lynn Winmill
Chief U. S. District Judge

Memorandum Decision & Order - 5