Bates v. Flemming

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS CRAIG A. BATES and KARLA R. BATES, Plaintiffs, v. Case No. 19-1101-JWB GUY M. FLEMMING, GUYCAT, LLC, and KATHRYN L. MAKEKAU, Defendants.

MEMORANDUM AND ORDER This matter comes before the court on Plaintiffs’ response to this court’s show cause order and motion for an extension of time to effectuate service. (Doc. 85.) No Defendant has filed an opposition to Plaintiffs’ motion and the time for doing so has passed. In the show cause order, the court determined that the return of summons that was filed on the docket does not sufficiently reflect that the summons was personally served upon Makekau or another individual authorized to receive service at the home. (Doc. 84.) The court ordered Plaintiffs to respond and show that service upon Makekau complied with the Rules of Civil Procedure. In response to the show cause order, Plaintiffs seek an extension of time to serve Makekau. After reviewing Plaintiffs’ motion and attached exhibits, the court finds that Plaintiffs have shown good cause for an extension.

Specifically, Makekau has previously attempted to avoid service of a subpoena in this case, Makekau has knowledge of the initial complaint filed against Guy Flemming, and Plaintiffs’ attorney believed that the service on Makekau was compliant with North Carolina law based on his interpretation of North Carolina authority.

Plaintiffs’ motion for an extension of time (Doc. 85) is therefore GRANTED. Plaintiffs are allowed an additional sixty days from the date of this order to serve Makekau with the second amended complaint (Doc. 71). Should Makekau fail to timely answer after service or if Plaintiffs provide documented evidence of intentional evasion of service, Plaintiffs may move for default judgment against Makekau. See Nikwei v. Ross Sch. of Aviation, Inc., 822 F.2d 939, 945–46 (10th Cir. 1987).

IT IS SO ORDERED. Dated this 13th day of July 2021. __s/ John W. Broomes__________ JOHN W. BROOMES UNITED STATES DISTRICT JUDGE