Cooper et al v. Regent Asset Management Solutions - Kansas, LLC et al

Filing 34

MEMORANDUM AND ORDER. The Court will allow Plaintiffs an additional seven (7) days to provide the Court with the necessary submissions to either (1) find that service was accomplished on Defendants; or (2) extend the time for Plaintiffs to accomplis h service. Otherwise, this case will be dismissed without prejudice for failure to accomplish service under Rule 4(m). Signed by District Judge Julie A. Robinson on 6/1/2012.Mailed to pro se party Regent Asset Management Solutions-Kansas, LLC, Regent Asset Management Solutions North America, LLC, Regent Asset Management Solutions, Inc., Michael C. Scata, and Matt Duprey by regular mail (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHLOE COOPER, et al.,
Plaintiffs,
On behalf of themselves and all others
similarly situated,
vs.
REGENT ASSET MANAGEMENT
SOLUTIONS–KANSAS, LLC, et al.,
Defendants.

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Case No. 10-2634-JAR-KGG

MEMORANDUM AND ORDER
On October 25, 2011, Magistrate Judge Gale conducted a telephonic scheduling
conference with the parties. Plaintiffs appeared through counsel Rowdy Meeks. Defendants
Matt Duprey and Michael Scata appeared pro se. The record does not reflect that Defendants
Regent Asset Management Solutions-Kansas, LLC, Regent Asset Management Solutions North
America, LLC, and Regent Asset Management Solutions, Inc. appeared. These three corporate
defendants have been without counsel since August 3, 2011. The case was stayed prior to the
October 25 scheduling conference in order to provide Defendants with a period of time to obtain
counsel given the well-established rule that business entities may only appear in court by a
licensed attorney.1

1

Tal v. Hogan, 453 F.3d 1244, 1255 (10th Cir. 2006); Harrison v. Wahatoyas, LLC, 253 F.3d 552, 556–57
(10th Cir. 2001).

The minute entry for the October 25 scheduling conference indicates that Plaintiffs were
directed to file a motion for leave to amend the complaint and add parties by November 8, 2011.
The scheduling conference was continued “pending service on new parties or denial of motion to
amend/add, at which time plaintiffs’ counsel will contact court for new scheduling conference
date.”2
Plaintiffs moved for leave to amend by the deadline, which was granted on November 23,
2011 (Doc. 30). The Amended Complaint was filed on December 2, 2011, adding Defendant
Imperial Recovery Partners, LLC. The record does not reflect that service of summons or the
Amended Complaint has been accomplished on Defendants. In fact, the record is devoid of any
action since the Amended Complaint was filed. Therefore, on May 18, 2012, this Court ordered
Plaintiffs to show cause why this case should not be dismissed without prejudice for lack of
prosecution under Fed. R. Civ. P. 4(m) and/or Fed. R. Civ. P. 41(b).
Plaintiffs responded to the Order to Show Cause on May 30, 2012. Plaintiffs complain
that Defendants are pro se and have not responded to the Amended Complaint. Plaintiffs assert
that they complied with Fed. R. Civ. P. 5(b)(2)(C) by serving the defendants by regular first class
mail, attaching as proof of service copies of the cover letter sent to each Defendant stating that
the copy of the Amended Complaint was enclosed. But Plaintiffs submit no evidence that
service was actually accomplished. Plaintiffs do not submit return receipts or returns of
summons, nor does the Amended Complaint include a certificate of service. Therefore, there is
still no record before the Court showing that Defendants were in fact served within 120 days of

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Minute Order (Oct. 25, 2011).

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service of the Complaint under Rule 4(m). Because the Answer deadline runs from the date of
service, the Court likewise can not determine when the Answer was due without proof of the
date that service was accomplished.3
Under Rule 4(m), the Court has broad discretion to allow an extension of time for
service, even if the plaintiff has not shown good cause.4 Good cause “serves merely as an
exception to the general provision by delineating a situation in which an extension of time is
mandatory.”5 Yet, Plaintiffs do not seek an extension of time, nor do they attempt to establish
good cause or that a permissive extension of time is warranted. In the absence of such a motion,
the Court declines to rule as to whether an extension of time is warranted.
Finally, Plaintiffs embed in the response to the show cause order a request for dismissal
of Defendant Imperial Recover Partners, LLC. Again, this request is not properly before the
Court and Plaintiffs are directed to Rule 41, governing dismissal of parties and actions.
Despite Plaintiffs’ deficiencies in responding the Order to Show Cause, the Court will
allow Plaintiffs an additional seven (7) days to provide the Court with the necessary submissions
to either (1) find that service was accomplished on Defendants; or (2) extend the time for
Plaintiffs to accomplish service. Otherwise, this case will be dismissed without prejudice for
failure to accomplish service under Rule 4(m).
IT IS THEREFORE ORDERED that Plaintiffs may file a supplemental response to the
Court’s May 18, 2012 Order to Show Cause within seven (7) days of this Memorandum and

3

Fed. R. Civ. P. 12(a)(1)(A).

4

Fed. R. Civ. P. 4(m); Espinoza v. United States, 52 F.3d 838, 840–41 (10th Cir. 1995).

5

Espinoza, 52 F.3d at 841 (citation omitted).

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Order.
IT IS SO ORDERED.
Dated: June 1, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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