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Salba Corp., N.A. v. X Factor Holdings, LLC

United States District Court, D. Colorado

June 11, 2015

SALBA CORP., N.A., a Canadian corporation, SALBA SMART NATURALS PRODUCTS, a Colorado limited liability company, WILLIAM A. RALSTON, and RICHARD L. RALSTON, Plaintiffs,
v.
X FACTOR HOLDINGS, LLC, an inactive Florida limited liability company, and ANCIENT NATURALS, LLC, a Florida limited liability company, MITCHELL A. PROPSTER, a resident of the State of Florida, CORE NATURALS, LLC, a Florida limited liability company, and NATURAL GUIDANCE, LLC, a Florida limited liability company, Defendants and Counter-Claimants.

ORDER MAKING ORDER TO SHOW CAUSE ABSOLUTE AND FOR ENTRY OF DEFAULT & DISMISSAL OF COUNTERCLAIMS

ROBERT E. BLACKBURN, District Judge.

This matter is before the court on the following: (1) the Order To Show Cause [#182][1] filed May 27, 2015; and (2) the Defendant's Response To Court's Order To Show Cause [#188] filed June 3, 2015. I make the Order to Show Cause absolute, enter default against defendant Mitchell Propster on the claims of the plaintiffs against Mr. Propster, and dismiss the counterclaims asserted by Mr. Propster against the defendants.

In the Order To Show Cause [#182], I directed Mr. Propster to show cause why default should not enter against him on the claims of the plaintiffs against him for his failure to defend against those claims, including his failure to comply with the rules and orders of this court in preparing for trial. Additionally, I directed Mr. Propster to show cause why his counterclaims against the plaintiffs should not be dismissed as a sanction for his failure to comply with the rules and orders of this court, including his failure to comply with those rules and orders in preparing for a trial of his counterclaims. Mr. Propster filed a response [#182] to the Order To Show Cause which does not establish good cause for his myriad, unexcused failures to comply with the rules and orders of this court and to prepare this case for trial.

I. JURISDICTION

I have jurisdiction over the parties and subject matter of this litigation. My subject matter jurisdiction arises under 28 U.S.C. § 1331 (federal question), § 1338(a) (trademark and copyright), § 1338(b) (unfair competition claim joined with copyright or trademark claim), § 1367 (supplemental), and 15 U.S.C. § 1121 (trademark).

II. BACKGROUND

In the Third Trial Preparation Conference Order [#142] entered September 29, 2014, this case was set for a jury trial beginning June 15, 2015. Thus, that trial date was set over eight months ago and was set with the agreement and consent of all parties and their counsel. At the partial combined Final Pretrial Conference and Trial Preparation Conference held on May 29, 2015, the commencement of trial was delayed one week and rescheduled for June 22, 2015.

Default has entered against defendants, Core Naturals, LLC, Natural Guidance, LLC, X Factor Holdings, LLC, and Ancient Naturals, LLC, on the corresponding claims of the plaintiffs. Order [#166], pp. 2-3. Additionally, the counterclaims of those same defendants against the plaintiffs have been dismissed for failure to prosecute under Fed.R.Civ.P. 41(b). Id.

Thus, the only defendant against whom default and dismissal for failure to prosecute have not entered is Mitchell Propster. On January 7, 2015, counsel for the defendants filed a motion to withdraw [#149]. Counsel reported in the motion that good cause for withdrawal existed based on the ongoing failure of the defendants to pay attorney fees and costs for the preceding twelve months. Counsel noted in the motion that the defendants, including Mr. Propster, had been notified of the motion. In addition, counsel notified the defendants of their obligation to comply with all court orders and the "time limitations established by any applicable rules." Motion [#149], p. 3. On January 20, 2015, over five months ago, counsel for the defendants was permitted to withdraw. Order [#157].

Mr. Propster is acting pro se. [2] As the trial date began to draw near, counsel for the plaintiffs repeatedly, but futilely, sought the participation of Mr. Propster in trial preparations, including the preparation of witness and exhibit lists, the pretrial exchange of exhibits, and the preparation of proposed jury instructions.

In a recent motion [#177], the plaintiffs noted the following failures of Mr. Propster as the plaintiffs sought to engage him in trial preparations:

a. Mr. Propster failed to provide, file, or exchange his exhibit list, which was due no later than May 1, 2015 (see Third Trial Preparation Conference Order [#142] at p. 2);
b. Mr. Propster failed to meaningfully respond to plaintiffs' numerous attempts to confer on plaintiffs' proposed exhibit list;
c. Mr. Propster failed to provide his objections (if any) to plaintiffs' exhibit list, which were due no later ...

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