Missouri Crop, LLC., et al v. CGB Diversified Services, Inc., et al

Filing 40

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that, within fourteen days of the issuance of this Order, the parties shall concurrently submit briefs to the court on the issues presented in this order. Specifically these briefs shoul d address whether service of CROPUSA was defective, and if this service was defective should the Court dismiss the claim under Federal Rule of Civil Procedure 4m. The briefs should also address whether the counterclaim of Burgher and Missouri Crop an d the crossclaim of GemCap are required to be served to CROPUSA. Finally, the briefs should also address whether default judgment is appropriate and for what pleadings. IT IS FURTHER ORDERED that a copy of this Order be sent by U.S. mail and UPS Ser vice with Confirmed Receipt to: R. John Taylor, Registered Agent, CROP USA INSURANCE AGENCY, INC., 111 Main Street, Lewiston, ID 83501. Signed by District Judge E. Richard Webber on 10/29/2015. (Order sent via US Mail and UPS Service to R. John Taylor as ordered this date.)(CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
MISSOURI CROP, LLC, and MATTHEW
BURGHER
Plaintiff,
v.
CGB DIVERSIFIED SERVICES, INC., d/b/a
DIVERSIFIED CROP INSURANCE
SERVICES, and CROP USA INSURANCE
AGENCY, INC., d/b/a, CROPUSA
Defendants.

CGB DIVERSIFIED SERVICES, INC., d/b/a
DIVERSIFIED CROP INSURANCE
SERVICES,
Counterplaintiff/ Crossclaim Plaintiff,
v.
MISSOURI CROP, LLC and GEMCAP
LENDING I, LLC,
Counterdefendants,
and
CROP USA INSURANCE AGENCY, INC.,
d/b/a, CROPUSA
Crossclaim Defendants.

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No. 2:15CV00024 ERW

MEMORANDUM AND ORDER
The following Memorandum and Order comes before the Court after discovering
concerns regarding the proper service of Crop USA Insurance Agency, Inc. dba CROPUSA

(CROPUSA). The court is concerned Plaintiffs Missouri Crop, LLC (Missouri Crop) and
Matthew Burgher (Burgher) have never properly served CROPUSA and the time limit has
expired. The Court also notes Missouri Crop and Burgher did not serve CROPUSA with a
counterclaim, and GemCap Lending I, LLC (GemCap) did not serve CROPUSA with its own
crossclaim. The Court also understands if CROPUSA was properly served, the time limit to file
an answer or other motions has passed, and default judgement may be appropriate.
I.

Background

This case is before the Court after CGB Diversified Services, Inc. dba Diversified Crop
Insurance Services (Diversified) filed a Notice of Removal on April 2nd, 2015. Exhibits A and B
of the Notice of Removal contain emails from Kal Shah, counsel for Diversified, to John
Munding, whom Diversified alleges is CROPUSA’s counsel, asking CROPUSA to consent to
removal to this Court. [ECF No. 1-2, 3] Mr. Munding did not reply to either email, and no one
from CROPUSA has filed an entry of appearance in this court. In the unopposed motion for
preliminary injunction of Burgher and Missouri Crop state they have been unable to serve
CROPUSA. [ECF No. 15 ¶ 2] However, the Court takes judicial notice of the related state court
filings, which indicate on March 20, 2015 a return of service was filed in the State Court after the
Missouri Secretary of State had been served. Further, Diversified was able to serve CROPUSA
with its amended answer and Crossclaim [ECF No. 20] on July 24, 2015, after the request for an
issuance of summons [ECF No. 24]. CROPUSA has not responded or appeared before this
Court or State Court. 1 based on the State Court’s electronic filing record.
The court also takes notice of other items not found in the record. Missouri Crop and
Burgher’s did not file proof of service for CROPUSA on a counterclaim filed on August 7th,
1

This court takes notice of the State Court’s electronic filing record, which does not show an
entry of appearance or filing from CROPUSA.
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2015. The same can be said about a Crossclaim filed by GemCap against all Defendants on
August 28th, 2015.
II.

Concerns regarding the nature of service

The Court is concerned with whether CROPUSA has been properly served. “The effectuation
of service is a precondition to a lawsuit, while waiver of insufficient service is the forfeiture of
defense to that service”. Jenkins v. City of Topeka, 136 F.3d 1274, 1275–76 (10th Cir.1998).
Pursuant to Rule 4m of the Federal Rules of Civil Procedure, “if a defendant is not served within
120 days after the complaint is filed, the court−on its motion or on its own after notice to the
plaintiff−must dismiss the action without prejudice against that defendant or order that service be
made within a specified period of time.” The initial petition was filed on March 4th, 2015 and
the notice of removal was filed on April 2nd. The Court notes it has been more than 120 days
since the removal of this case, and if plaintiff cannot prove CROPUSA has not been properly
serviced, the court may be required to dismiss this action.
The Court asks the parties to file briefs on whether the service of CROPUSA has been
proper, and if the service has not been proper whether dismissal is appropriate. The Court also
asks the parties to consider whether Diversified’s service of CROPUSA has any effect on the
outcome. In the same brief the court also asks the parties to address whether Burgher, Missouri
Crop, and GemCap need to serve CROPUSA with their new claims.
III.

Concerns regarding Default Judgement or Summary Judgment

CROPUSA was served on July 24th, 2015 with Diversified’s counterclaim and their answer
was due on August 13th, 2015. CROPUSA has not filed an answer or any other pleadings and
default judgment may be appropriate. The court requests each of the parties present arguments
on whether default judgement is appropriate, and what the manner of any judgements should be.

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Accordingly,
IT IS HEREBY ORDERED that, within fourteen days of the issuance of this Order, the
parties shall concurrently submit briefs to the court on the issues presented in this order.
Specifically these briefs should address whether service of CROPUSA was defective, and if this
service was defective should the Court dismiss the claim under Federal Rule of Civil Procedure
4m. The briefs should also address whether the counterclaim of Burgher and Missouri Crop and
the crossclaim of GemCap are required to be served to CROPUSA. Finally, the briefs should
also address whether default judgment is appropriate and for what pleadings.
IT IS FURTHER ORDERED that a copy of this Order be sent by U.S. mail and UPS
Service with Confirmed Receipt to: R. John Taylor, Registered Agent, CROP USA
INSURANCE AGENCY, INC., 111 Main Street, Lewiston, ID 83501.
Dated this 29th Day of October, 2015.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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