United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge.
following motions are currently pending before me:
• Defendant Henry's Motion for Protective Order,
(Filing No. 162), and Motion to Quash, (Filing
• Plaintiffs Motion to Extend Deadlines in Progression
Order, Motion to File a Second Amended Complaint to add
parties, and Motion for Attorney Fees as Sanctions against
Henry, (Filing No. 166); and
• Defendant Henry's Motion for Additional Time to
Respond to Plaintiff's Motion, (Filing No. 174).
reasons stated below, Henry's motions for protective
order and to quash will be denied; Plaintiff's motion to
extend the case progression deadlines will be granted in
part; Plaintiff's motion to file an amended complaint
will be denied; Plaintiff's for attorney fees and
sanctions against Henry is granted in part and denied in
part; and Henry's motion for additional time will be
denied as moot.
Service of Process.
case was initially filed in the United States District Court
for the Eastern District of Texas on December 1, 2014.
(Filing No. 1). The summons for service on
Defendants were not requested and issued until three months
later, on March 3, 2015. (Filing Nos. 2, 3, 4). Bitters and
Henry were promptly thereafter. (Filing No. 44). On
June 3, 2015, more than six months after the case was filed,
Plaintiff moved for additional time to serve Boland.
(Filing No. 20). This motion was stricken by the
Clerk of the Eastern District of Texas. It was not re-filed.
Boland was served on June 3, 2015. (Filing No. 33).
lawsuit arises from a promissory note executed in Nebraska by
Henry on February 08, 2008 in favor Plaintiff's decedent
in the amount of $150, 000.00. Henry is a citizen of
Nebraska, Bitters is a citizen of Iowa, and the transaction
at issue was allegedly signed in Omaha, Nebraska. (Filing
receiving service, Defendant Bitters timely moved to dismiss
for lack of personal jurisdiction, improper venue, and based
on the statute of limitations, for failure to state a claim.
Defendant Boland timely moved to dismiss on June 10, 2015. In
addition to the arguments raised by Bitters, Boland argued
Plaintiff, without good cause, failed to timely effectuate
service on Boland. (Filing No. 36).
requested additional time to respond to Bitter's motion
to dismiss due to family health issues. (Filing No.
9). The motion filed by Plaintiff's counsel in the
Texas litigation, (J. Hamilton McMenamy),  stated:
Counsel requests additional time to respond to Defendant
Bitters' Motion to Dismiss, to April 30, 2015. Counsel
requests the time not only to respond to the Motion, but also
to amend Plaintiff's pleadings to incorporate information
just received in the meantime from a Deposition on Written
Questions from the bank of Defendant John L. Henry.
(Filing No. 9 at CM/ECF p. 2). The motion was
initially filed on April 24, 2015, but it was stricken by the
Clerk as deficient. Plaintiff refiled the motion on April 29,
2015. Defense counsel opposed the motion for additional time,
Plaintiff is seeking an extension of time about 12 days after
the due date of filing a response (i.e., April 13, 2015) to
Defendant William E. Bitters' motion to dismiss.
Plaintiff's Counsel has never attempted to seek an
extension from the Court or Defendant before the due date of
his responsive brief. Furthermore, Plaintiff Counsel has not
even attempted to meet and confer regarding his motion for
extension of time after the due date of the responsive brief.
Defendant sympathizes with the Counsel's situation;
however, it is Defendant William E. Bitters' position
that an extension would not change the fact that claims
brought by Plaintiff are barred by statute of limitation.
Therefore, the case against Defendant William E. Bitters
should be dismissed.
(Filing No. 12). The opposition was initially filed
on April 27, 2015, (Filing No. 8), then re-filed on
May 6, 2015, (Filing No. 10), after Plaintiff's
corrected motion was re-filed. The May 6, 2015 filing was
initially stricken by the Clerk as deficient for lack of a
signature, but it did have an s/ signature (which is
permitted in Nebraska). Defendant's opposition to the
motion for additional time was immediately re-filed.
(Filing No. 12). Plaintiff's counsel responded
that there was good cause for his untimely response to
Bitter's motion to dismiss: His wife's medical
condition required his attention and Defendants suffered no
prejudice due to the delay. (Filing No. 11). The
motion to continue the response deadline was granted, with
Plaintiff's response to the motion to dismiss due on May
21, 2015. (Filing No. 13).
filed a responsive brief, (Filing No. 14), which
extensively cited to an affidavit (Filing No. 15).
But this affidavit filing was deemed deficient by the Clerk
of Court for the Eastern District of Texas and stricken, with
Plaintiff given one day to filed a corrected response. When
Plaintiff failed to timely and properly file the affidavit
supporting the arguments in Plaintiff's brief, on May 28,
2015, Bitters moved to strike the court's consideration
of those facts as cited within Plaintiff's brief.
(Filing No. 17).
responded by re-filing a response to Bitter's motion to
dismiss with the previously stricken affidavit attached.
(Filing No. 18). By order of the court, the
Filing No. 18 response was stricken because
Plaintiff's counsel failed to seek leave of the court
before filing an untimely response to Bitter's motion to
dismiss. (Filing No. 19). The order instructed,
“[u]ntil Plaintiff is granted leave to file a second
response out of time, the May 20, 2015 response (Filing
No. 14) shall govern.” (Id). Plaintiff
filed an affidavit in opposition to Bitter's motion to
dismiss on June 8, 2015. (Filing No. 21). This
filing was stricken by the Clerk for the Eastern District of
Texas. Plaintiff then filed an eighteen-page brief with four
affidavits (including the previously stricken affidavit) as a
response to Bitters' motion to strike the improperly
cited and filed affidavit, (Filing No. 25),
filing defense counsel characterizes as “an
impermissible attempt to ‘sneak-in' that which
Plaintiff failed to properly file in the first place.”
(Filing No. 26).
the motion to dismiss filed by Bitters on March 30, 2015 (to
dismiss a complaint filed on December 1, 2014, with no
summons requested until March 3, 2015), was not fully
submitted for the court's review until June 25, 2015.
(Filing No. 34). In the meantime, Boland filed his
motion to dismiss, (Filing No. 23), and the parties
began briefing that motion, along with Plaintiff's motion
for additional time to serve Boland (or to find good cause
excusing Plaintiff's failure to timely serve Boland).
(Filing No. 34).
August 11, 2015, the Texas court held a case management
conference with the parties. The court's order states:
This case would be more properly brought in Nebraska to avoid
the potential of piecemeal litigation. Within 14 days of the
date of this Order, the parties shall either file an agreed
motion to transfer venue to Nebraska or notify the Court that
no motion will be filed. If no motion is filed, the Court
will proceed with the consideration of Defendants'
motions to dismiss and Plaintiff will be bound by those
(Filing No. 43).
days later, on August 25, 2015, Plaintiff filed a motion to
continue the deadline for filing a motion to transfer venue
“to a time 2 weeks after the Court's decision on
Plaintiff's Motion for Summary Judgment against John L.
Henry, or in the alternative, 4 weeks from this date.
(Filing No. 45 at CM/ECF p. 2). The Texas court
granted the motion, but only in part, explaining:
The Court will not consider a motion for default judgment as
to Henry at this time. Defendant Henry was served in Nebraska
(see Dkt. 44), and, as noted at the August 11, 2015 hearing,
no facts are alleged by Plaintiff in the Complaint to
establish conclusively that this Court can exercise personal
jurisdiction over him (see Dkt. 1). The Court cannot and will
not recommend the entry of default judgment against a party
over whom it has no jurisdiction. . . .
Plaintiff requests an alternative four week extension.
Plaintiff's motion is GRANTED in part and DENIED in part.
The Court finds that two weeks is sufficient time for the
parties to agree upon a transfer. Plaintiff is reminded that,
in light of the pending motions in this case, Plaintiff faces
dismissal of some, or all, of its claims for improper venue.
Within 14 days of the date of this Order, the parties shall
either file an agreed motion to transfer venue to Nebraska or
notify the Court that no motion will be filed. If no motion
is filed, the Court will proceed with the consideration of
Defendants' motions to dismiss and Plaintiff will be
bound by those rulings and any consequences thereof.
(Filing No. 46).
following day, August 28, 2015, Plaintiff moved to amend the
complaint to add a RICO claim. (Filing No. 47). The
motion was denied on September 2, 2015, the court explaining:
Plaintiff has not shown how his amended complaint would state
additional facts regarding proper venue in this District.
Moreover, nothing in the motion indicates how the amended
complaint would state facts to show how this Court could
exercise personal jurisdiction over some or all of Defendants
here. Plaintiff is again reminded that, if Plaintiff does not
agree to the transfer of this case to a more suitable venue,
Plaintiff faces dismissal of some, or all, of its claims.
(Filing No. 48).
filed a motion to change venue on September 10, 2015.
(Filing No. 50). Bitters and Boland refused to join
in the motion unless Boland was dismissed, arguing Nebraska
has no personal jurisdiction over Boland. (Filing Nos.
51 and 52). The Texas court disagreed, and
on March 17, 2016-14 months after the case was
filed-Plaintiff's lawsuit was transferred to this forum
from the United States District Court for the Eastern
District of Texas, with the motions to dismiss and related
motions to strike filed in the Texas forum denied as moot.
(Filing Nos. 54, 55, 56, and
case arrived in the District of Nebraska on April 25, 2016.
(Filing No. 58). Two days later, this court entered
an order requiring Defendants to file an answer or otherwise
respond to Plaintiff's complaint by May 13, 2016, and to
file a Rule 26(f) Report by May 30, 2016. (Filing No.
62). Acting through their local counsel, Defendants
moved for an additional 30 days to file their answer or
responsive motions. (Filing No. 64). Plaintiff did
not respond to the motion to continue, and the motion was
granted on June 1, 2016. (Filing No. 67).
timely filed Rule 12(b)(6) motions to dismiss on June 13,
2016. (Filing Nos. 68-71). On July 5, 2016,
Plaintiff moved to amend the complaint. (Filing No.
80). The motion to amend was granted, with the motions
to dismiss denied as moot. (Filing No. 98).
amended complaint, filed on August 8, 2016, alleged (1)
breach of fiduciary duty; (2) negligence; (3) negligent
misrepresentation; (4) breach of contract; (5) breach implied
duty of good faith and fair dealing; (6) fraud; (7)
assumpsit; (8) violations of the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1961 et seq.; (9) violations of the Nebraska Uniform
Deceptive Trade Practices Act (“NUDTPA”), Neb.
Rev. Stat. § 87-301 et seq.; and (10) violations the
Nebraska Consumer Protection Act (“NCPA”), Neb.
Rev. Stat. § 59-1601 et seq. Defendants Bitters and
Boland again filed Rule 12(b)(6) motions to dismiss. (Filing
Nos. 104 & 106). Henry, appearing pro
se, also moved to dismiss.
October 19, 2016, this court entered an order dismissing
Plaintiff's claims for recovery under the NUDTPA, the
NCPA, and RICO. As to all other claims, Defendants'
motions to dismiss were denied, and their motion to dismiss
on the basis of the statute of limitations was denied.
(Filing No. 121).
with the parties' proposed discovery deadlines in their
jointly filed Rule 26(f) Report, (Filing No. 126),
the court entered a final progression order on February 10,
2017. (Filing No. 127). That order set a November 1,
2017 written discovery deadline and a November 30, 2017
deposition deadline. (Id).
the following seven months, Plaintiff served no discovery. On
September 19, 2017, Plaintiff served 34 Requests for
Admission, 102 Requests for Production, and 33
Interrogatories on Defendants Bitters and Boland and 86
discovery requests in the form of Requests for ...