Opinion
1:23-cv-01249-JLT-CDB
11-09-2023
DAVID W. CAIN, Plaintiff, v. INTERNATIONAL FRUIT GENETICS, LLC, et al.., Defendants.
ORDER ON JOINT STIPULATION RE NON-IFG DEFENDANTS AND RESERVATION OF FUNDS
ORDER REQUIRIING PLAINTIFF TO FILE PROOFS OF SERVICE AND APPLY FOR ENTRY OF DEFAULTS AS NECESSARY
ORDER RESETTING SCHEDULING CONFERENCE TO JANUARY 3, 2024, AT 10:00 A.M. (DOC. 14)
On November 7, 2023, certain parties to this action filed a “Notice of Joint Stipulation Re Non-IFG Defendants and Reservation of Funds” that addresses the disclosure and use of an asset purchase Agreement (Docs. 14, 14-1). The stipulation describes Defendants Sunridge Nurseries, Inc., Glen Stoller, Craig Stoller, Andy Higgins, Van Kramer, Rick Burnes, Jack Pandol and James Pandol, collectively, as the “Non-IFG Defendants.” (Doc. 14 p. 2). In addition, the stipulation provides that Defendant International Fruit Genetics, LLC (“IFG”) must maintain $12,211,720.19 in assets, subject to certain conditions. Id. at 2-3.
Although the stipulation was filed with an accompanying proposed order that prompts the Court to “approve” the stipulation, the stipulation does not seek any relief of the type the Court is authorized by statute or rule to grant. Accordingly, the Court declines to take any action relevant to the parties' stipulation.
Further, on August 22, 2023, the Order Setting Mandatory Scheduling Conference directed Plaintiff to diligently pursue service of summons and complaint and dismiss the defendants against whom he would not pursue claims. (Doc. 4). Plaintiff was further instructed to promptly file proofs of service of the summonses and complaint. Id. As of the date of this order - more than two months after Plaintiff filed the complaint - he has failed to file any summonses returned executed. The Court separately notes that Defendants Jack Pandol and James Pandol have not appeared in action, nor does any filing demonstrate that they have waived service of summons and complaint. See (Doc. 9).
Pursuant to Fed.R.Civ.P. Rule 4(m), a defendant must be dismissed if service is not accomplished on the defendant within 90 days after the complaint was filed. Accordingly, the Court shall order Plaintiff to timely file summonses returned executed within the 90-day timeframe unless prior to that date, Plaintiff shows good cause for his failure.
For the forgoing reasons, it is HEREBY ORDERED:
1. On or before November 21, 2023, Plaintiff shall file summonses returned executed for all Defendants.
2. For any Defendant who is more than 30-days in default of timely responding to the complaint, on or before December 21, 2023, Plaintiff shall apply to the Clerk of Court for entry of default.
3. As the pleadings have not settled and no Defendant has responded to the complaint, the scheduling conference currently set for November 15, 2023, is RESET for January 3, 2024, at 10:00 a.m. The parties shall appear at the conference remotely via Zoom video conference, and counsel may obtain the Zoom ID and password from the Courtroom Deputy prior to the conference. The parties are reminded of their obligation to timely file a joint report in advance of the scheduling conference. (Doc. 4).
Failure to comply with this Order will result in the imposition of sanctions. L.R. 110.
IT IS SO ORDERED.