Creative Retail Packaging, Inc. v. Kids Against Hunger et al

Filing 43

ORDER - The plaintiff's motion (filing 41 ) to amend is denied. The Clerk of the Court is directed to strike filing 40 as duplicative. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CREATIVE RETAIL PACKAGING,
INC., a Texas corporation,
8:16-CV-411
Plaintiff,
vs.

ORDER

FREEDOM FOODS, a nonprofit
Minnesota corporation doing business
as Kids Against Hunger (a
Trademark of Freedom Foods) and
KIDS AGAINST HUNGER, a
nonprofit Minnesota corporation,
Defendants.
This matter is before the Court on the plaintiff's motion (filing 41) to
amend the Court's order of March 24, 2017 (filing 39). The plaintiff's motion
will be denied.
The Court's order (filing 39) deferred ruling on the plaintiff's motion for
default judgment (filing 33) until May 1, 2017, to give defendant Kids Against
Hunger a final opportunity to appear (through counsel) and defend this
action. The plaintiff's motion (filing 41) asks the Court to amend that order to
require Kids Against Hunger to file a responsive pleading by May 1, instead
of just appearing through counsel.
But the plaintiff seems to misunderstand the effect of the Court's
March 24 order. The Court's March 24 order simply deferred ruling on the
motion for default judgment for a time—the motion for default judgment
remains pending, and Kids Against Hunger is still in default. Should counsel
appear for Kids Against Hunger, counsel's first job will be to defend against
the motion for default judgment and persuade the Court that Kids Against
Hunger's default should be excused.
In other words, the Court declines to set a deadline for Kids Against
Hunger to file a responsive pleading because it remains to be determined
whether Kids Against Hunger, if it appears, should be permitted to file an
untimely responsive pleading in the first place: that is, whether good cause
can be shown to set aside Kids Against Hunger's default. See Grant v. City of
Blytheville, Arkansas, 841 F.3d 767, 772 (8th Cir. 2016). The Court will make

that determination if and when Kids Against Hunger appears and makes an
appropriate motion.1
The Court also notes that filing 40 appears to be identical to filing 42-1.
The Clerk of the Court will be directed to strike filing 40.
IT IS ORDERED:
1.

The plaintiff's motion (filing 41) to amend is denied.

2.

The Clerk of the Court is directed to strike filing 40 as
duplicative.

Dated this 7th day of April, 2017.
BY THE COURT:

John M. Gerrard
United States District Judge

The Court notes the plaintiff's evidence suggesting that the representations contained in
the letter from Kids Against Hunger's treasurer (filing 38) are "suspect," and that Kids
Against Hunger was not "misled" by plaintiff's counsel. See, filing 41 at 6; filing 42-1. To be
clear: the Court has no reason to believe that plaintiff's counsel was misleading in any way.
The Court's previous order was based simply on the possibility that Kids Against Hunger's
officer was confused. See filing 39. Whether that representation is honest or disingenuous is
a matter that will be addressed only when it becomes necessary.
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