Kloeber v. Montie's Resources, LLC et al
Filing
72
MEMORANDUM OPINION & ORDER: 1) Pla's 70 MOTION for Default Judgment against Dft Bartolomea and Lisa Montanari Family Ltd Partnership is GRANTED. Separate order of Judgment shall issue; 2) Pla's 71 MOTION for Default Judgment, or a lternatively, MOTION to Extend Deadlines as to Defendant Bella Luca Properties, LLC is GRANTED IN PART and DENIED IN PART; 3) All remaining deadlines and scheduled hearings, as well as the Jury Trial are CONTINUED GENERALLY, pending further order of the Court; Additionally upon the Court's own motion, IT IS ALSO ORDERED: 4) Within 10 days, Pla shall SHOW CAUSE why its complaint should not be dismissed without prejudice as to Dft Bella Luca Properties, LLC. Signed by Judge Joseph M. Hood on 12/20/2012. (KLB) cc: COR,D,JC
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DAVID N. KLOEBER, JR.,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MONTIE’S RESOURCES, LLC, et al.,
Defendants.
**
This
matter
is
**
**
before
**
the
Civil Action No.
5:11-cv-313-JMH
MEMORANDUM OPINION &
ORDER
**
Court
upon
Plaintiff’s
Motion for Default Judgment against Defendant Bartolomea
and Lisa Montanari Family Limited Partnership [DE 70] and
Motion for Default Judgment or, Alternatively, to Extend
Deadlines
as
to
Defendant
Bella
Luca
Properties,
LLC
(“Bella Luca”) [DE 71]. Being adequately advised and having
carefully considered the two motions, the Court concludes
that the first shall be granted and the second granted in
part and denied in part.
A.
Plaintiff’s
request
for
relief
with
respect
to
the
Bartolomea and Lisa Montanari Family Limited Partnership is
premised on the fact that the defendant is unrepresented at
this time and, thus, in default.
Counsel was permitted to
withdraw on November 5, 2012, and no appearance of new
counsel
has
been
made
on
the
partnership’s
behalf.
The
thirty-day
Court
period
has
for
expired
appearance
[DE
64].
of
The
counsel
set
partnership
by
the
may
not
represent itself for it is well settled that corporations,
partnerships,
and
associations
cannot
appear
in
federal
court except through a licensed attorney. 28 U.S.C. § 1654
(“In all courts of the United States the parties may plead
and conduct their own cases personally or by counsel as, by
the rules of such courts, respectively, are permitted to
manage and conduct causes therein.”); Rowland v. California
Men’s Colony, 506 U.S. 194, 202 (1993); Doherty v. American
Motors
Corp.,
Accordingly,
728
the
F.2d
334,
Bartolomea
340
and
Lisa
(6th
Cir.
1984).
Montanari
Family
Limited Partnership’s answer [DE 28] is stricken and held
for naught.
Default judgment is appropriate pursuant to
Fed. R. Civ. P. 55(b)(2) and shall be entered.
B.
As for Defendant Bella Luca, Plaintiff asks the Court
to enter default judgment on the grounds that Bella Luca
has been served with summons and has failed to respond to
the Amended Complaint.
Specifically, Plaintiff explains
that it has made two efforts to serve Defendant Bella Luca.
First, it attempted personal service on the originator of
the
limited
maintained
partnership,
by
the
Lisa
Minnesota
2
Montanari,
Secretary
of
at
an
State.
address
The
process server learned, however, that she was no longer
resident
other
next
at
that
documents
sought
to
address,
affixed
serve
and
returned
thereto
the
summons
undelivered.
Defendant
Bella
Luca
and
Plaintiff
through
the
Secretary of State for the Commonwealth of Kentucky using
the address on Lisa Montanari’s bankruptcy petition.
The
items were returned undelivered, but Plaintiff takes the
position that service is now complete because the Secretary
of State is Bella Luca’s agent for service of process by
virtue of KRS § 454.210(3)(a).
The Court is not persuaded.
Fed. R. Civ. P. 4(h) states that a partnership or
other unincorporated association subject to suit under a
common
name
must
be
served
either
(1)
in
the
manner
provided for individuals under Fed. R. Civ. P. 4(e)(1) or
(2)
“by
delivering
a
copy
of
the
summons
and
of
the
complaint to an officer, a managing or general agent, or
any other agent authorized by appointment or by law to
receive
service
of
process
and
–
if
the
agent
is
one
authorized by statute and the statute so requires – by also
mailing a copy of each to the defendant.”
(e)(1)
provides
that
service
may
be
Fed. R. Civ. P.
made
by
“following
state law for serving a summons in an action brought in
courts
of
general
jurisdiction
in
the
state
where
district court is located or where service is made.”
3
the
Ky.
R. Civ. P. 4.04 provides that “[s]ervice shall be made upon
a partnership or unincorporated association subject to suit
under a common name by serving a partner or managing agent
of the partnership or an officer or managing agent of the
association, or an agent authorized by appointment or by
law to receive service on its behalf.”
Plaintiff
takes
the
position
that,
under
KRS
§
454.210(3)(a), the Secretary of State for the Commonwealth
is deemed to be the statutory agent of Bella Luca because
Bella Luca’s actions fell within one of those categories
described in § 454.210(2)(a).
In the Amended Complaint,
Kloeber
Luca
transfers
alleges
that
Bella
from
Defendant
Bart
received
Montanari
and
fraudulent
that
these
transfers constituted a violation of a loan agreement by
Bart Montanari – an agreement to which Bella Luca was not a
party.
[See Amended Compl. ¶ 308 [DE 50].]
It is not
immediately clear to the Court that any actions allegedly
taken by Bella Luca fall within the categories listed in
(2)(a).
Should Plaintiff wish to revisit this argument
with further analysis of KRS § 454.210(2)(a), the Court
will reconsider its decision in light of that argument.
That said, the Court notes that, if there is, ultimately,
no agent for Bella Luca in this state, Plaintiff may seek
service under Ky. Civ. R. 4.05.
4
Accordingly, IT IS ORDERED:
(1)
against
that
Plaintiff’s
Defendant
Motion
Bartolomea
and
for
Default
Lisa
Judgment
Montanari
Limited Partnership [DE 70] is GRANTED.
Family
A separate order
of judgment shall issue.
(2)
that Plaintiff’s Motion for Default Judgment or,
Alternatively, to Extend Deadlines as to Defendant Bella
Luca Properties, LLC [DE 71] is GRANTED IN PART and DENIED
IN PART;
(3)
that
all
remaining
deadlines
and
scheduled
hearings in this matter, as well as the jury trial, are
CONTINUED GENERALLY, pending further order of the Court.
Additionally, upon the Court’s own motion and in light
of the fact that more than 120 days have expired since the
filing of the Amended Complaint, IT IS ALSO ORDERED:
(4)
that,
within
ten
(10)
days
of
entry
of
this
order, Plaintiff shall SHOW CAUSE why the its complaint, as
twice amended, should not be dismissed without prejudice as
to Defendant Bella Luca Properties, LLC, pursuant to Fed.
R. Civ. P. 4(m).
Plaintiff may do so by submitting further
argument and demonstrating that the Secretary of State for
the Commonwealth of Kentucky is the agent for service of
process of said Defendant.
Alternatively, Plaintiff may
seek service of process pursuant to Ky. R. Civ. P. 4.05.
5
This the 20th day of December, 2012.
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