IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

BEHAVIOR ANALYST CERTIFICATION 

BOARD, INC., 

 Plaintiff, 

v. 

MICHAEL MOATES, an individual; 

MISTY KIESCHNICK, an individual; and 

THE GLOBAL INSTITUTE OF BEHAVIORAL 

PRACTITIONERS AND EXAMINERS, 

 Defendants. 

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Civil Action No. 4:23-cv-00194-ALM 

PLAINTIFF’S RESPONSE AND MOTION TO STRIKE DEFENDANT MICHAEL 

MOATES’ MOTION TO DISMISS FOR FAILURE TO SERVE AND DEFENDANT 

MICHAEL MOATES’ REPLY TO THE MOTION FOR DEFAULT JUDGMENT 

Plaintiff, the Behavior Analyst Certification Board, Inc. (“the BACB”), by and through its 

attorneys, submits its Response and Motion to Strike Defendant Michael Moates’ (“Moates”) 

Motion to Dismiss for Failure to Serve and Defendant Moates’ Reply to the Motion for Default 

Judgment and, as such, states the following: 

INTRODUCTION 

 Defendant Moates having failed to serve or file an Answer or responsive pleading to the 

Complaint within the time period required by F.R.C.P. 12(a)(1) has now filed a Motion to Dismiss 

claiming insufficient service of process only after Plaintiff filed a Request for Clerk’s Entry of 

Default (Dkt. 36). Plaintiff opposes the Motion, as Moates has 1) failed to prove insufficient 

service of process; 2) failed to seek an extension of time from the court for his untimely motion; 

and 3) failed to provide any evidence of excusable neglect. 

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 Defendant Moates’ Motion to Dismiss makes no mention of Defendant The Global 

Institute of Behavioral Practitioners and Examiners (“GIBPE”) and is silent as to any contentions 

of service of process upon GIBPE. Therefore, GIBPE has failed to answer or otherwise defend 

and remains in default. 

 Plaintiff moves this Court to enter an Order 1) striking Moates’ Motion to Dismiss (Dkt. 

37) at untimely; 2) granting Plaintiff’s Request for Clerk’s Entry of Default (Dkt. 36) against 

Defendants Moates and GIBPE; 3) awarding attorney fees and costs; and 4) for such further relief 

this Court deems just and proper. 

FACTUAL BACKGROUND 

 Defendants Moates and GIBPE are well-aware of this lawsuit. Despite the fact that the 

Plaintiff has now successfully served these Defendants by numerous methods, Defendants have 

chosen to play games with the judicial process, which has wasted both the Plaintiff’s and the 

Court’s time and resources. This behavior should not be rewarded. 

 Plaintiff incorporates by reference the facts and sequence of events described in Paragraphs 

3 through 10 of Plaintiff’s Request for Clerk’s Entry of Default (Dkt. 36). 

1. On April 14, 2022 Plaintiff filed a lawsuit against Defendants in the District Court 

of Jefferson County, Colorado; Case # 22CV30428. Moates waived service both individually and 

as the Registered Agent for GIBPE. (Ex. 1) Through counsel, Defendants removed the action to 

federal court (Civil Action # 1:22-cv-01247). Defendants filed a Motion to Dismiss for Lack of 

Personal Jurisdiction and successfully argued that Colorado was not the proper jurisdiction for this 

lawsuit. 

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2. Over five months ago, on March 10, 2023, Plaintiff filed this lawsuit. Now that 

this lawsuit has been filed in Texas, as Moates preferred, Moates has played games in attempt to 

prevent this litigation from moving forward. 

3. It is clear that Moates has been aware of this lawsuit since shortly after Defendant 

Misty Kieschnick – Moates’ mother – was served. On March 23, 2023, Ms. Kieschnick filed a 

Motion for Extension to File Response to Plaintiff’s Petition (Dkt. 9). The motion’s envelope (Dkt. 

9-1) has the following return address: 

Michael Moates 

5764 N. Orange Blossom Trl PMG 61546 

Orlando, FL 32810 

Moates therefore mailed Ms. Kieschnick’s motion to the court. 

4. Because Moates had previously waived service on his and GIBPE’s behalf, on five 

occasions, from March 27, 2023 through April 6, 2023, Plaintiff’s counsel sent emails to Moates’ 

known email addresses including: 

 michaelsmoates@gmail.com

 mmoates@email.fielding.edu

 m.moates@att.net (returned undeliverable) 

 mike@qbswb.com 

 mike@cpmht.com 

(Ex. 2) Each email contained the Complaint, Summons, Waiver for Moates, and Waiver for 

GIBPE. 

5. From April 27, 2023 through May 5, 2023, a process server made three 

unsuccessful attempts to serve Moates at his current address. Each time there was evidence that 

Moates was home and either refusing to answer the door or actively evading service. 

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 04/27/23: Leasing confirmed subject lives here and that he was difficult 

to work with. She said he was home because his vehicle was parked 

outside. Knocked and rang bell multiple times, no answer. Left card on 

door. Subject vehicle present. 

 04/28/23: Card from last visit gone, knocked and rang bell, no answer. 

Left card on door. Subject vehicle present. 

 05/05/23: Approx 6:30 pm an uber eats dropped off food at the subjects 

door. I proceeded to the front door and waited. I then noticed he had a 

ring camera and a peep hole. I covered them up and waited by the steps. 

 05/05/23 Approx at 7:15 pm the subject came out to the patio to check 

to see if I had left. He saw me and I saw him and recognized him by his 

photo but then he hurried inside before I can say his name or drop serve 

him by throwing the papers onto the patio. 

(Ex. 3) 

6. On May 19, 2023 a separate service on GIBPE was completed upon Ms. Kieschnick 

as a director of GIBPE. (See Affidavit of Service, Dkt. 25) Moates’ emailed counsel for Plaintiff 

on May 22, 2023 stating, “Ms. Kieschnick is no longer with the institute and cannot accept service 

on behalf of it. Thus, service to her a few days ago is invalid.” (Ex. 4) Again, this email 

demonstrates Moates was well aware of this lawsuit. 

7. On May 22, 2023, Moates was successfully served individually and on behalf of 

GIBPE. A video of the service is produced herein as Ex. 5. Screenshots from the video are marked 

as Ex. 6. The screenshots illustrate the following: 

 Page 1: shows a sunny day with no signs of standing water. 

 Page 2: shows the binder clip holding 82 pages of paper (service packets 

to Moates and GIBPE). 

 Page 3: shows Moates attempting to evade service and running into his 

apartment. No evidence of standing water. 

 Page 4: shows the papers flying through the air. 

 Page 5: shows Moates made it inside the apartment and his dog 

following behind. 

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8. Moates also provided photographs from his Ring doorbell. (Ex. 7) These 

photographs show Moates running away from the process server and entering his apartment as the 

papers flew through the air. 

9. Shortly after service, Moates called Plaintiff’s counsel, Lindsay McManus, 

claiming that that the documents got in a bunch of water and thus cannot be read. However, the 

papers must have been legible enough to see Ms. McManus’ phone number. 

10. That same day, Moates sent three emails from mike@cpmht.com to counsel for 

Plaintiff, which included the following statements: 

 I have a video recording, and you can hear the thump from the metal 

hitting the wall... 

 I am willing to work toward an agreement that all parties can be happy 

with. 

 But lucky for you, mLocal (sic) Rules permit this: (G) be sent by firstclass mail or other reliable means. You have my approval. At which 

point, I will waive service upon arrival. 

 ...he threw the documents at me and said you have been served. 

 I look forward to being served via postal mail. 

(Ex. 8; p. 2, 4, 7, 8, 9). 

11. On May 23, 2023 Plaintiff’s counsel sent an email to mike@cpmht.com

transmitting the following: 

 Case Docket 

 Complaint 

 Summons to Moates 

 Summons to GIBPE 

 Affidavit of Service upon GIBPE on 05/19/23 

 Affidavit of Service upon GIBPE on 05/22/23 

 Affidavit of Service upon Moates on 05/22/23 

 Magistrate Consent Form 

 Copy of email sent to mike@cpmht.com on 04/06/23 

 Waiver of Service for Moates 

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(Ex. 9) 

12. Within the hour Moates sent another email from mike@cpmht.com making the 

below statements: 

 I will not be signing your waiver. ... I don't consent to service by email. 

 I will not return [the waiver] until a copy has been mailed to me. 

 Until a hard copy is sent to me... I consider the service to not be 

completed. 

(Ex. 10) 

13. In attempt to avoid a lengthy argument about the validity of service, Plaintiff sent 

service packets1

 to Moates and GIBPE via UPS Overnight and Certified Mail. The UPS package 

was delivered to the leasing office on May 30, 2023. (Ex. 11) The Certified Mail was delivered 

directly to Moates on May 30, 2023. (Ex. 12) 

14. Moates is a frequent litigant. From 2020 to 2023, Moates has been a plaintiff in ten 

(10) cases and a defendant in three (3) cases filed in federal court alone. One case was filed by 

Moates on July 25, 2023 -- four months after the commencement of this lawsuit . (Ex. 13) 

15. In each federal court lawsuit besides this one, Moates provides an email address in 

his signature block and/or explicitly consents to receiving service via email. The email addresses 

used are among those used by Plaintiff’s counsel as described above in the paragraph 4, including: 

mike@cpmht.com, which is the same email Moates has used to correspond with the undersigned 

in this case and the same email on the signature block for Moates’ Motion to Dismiss for Failure 

to Serve and Reply to the Motion for Default Judgment (Dkt. 37). 

1

 Each service packet contained a copy of the Complaint, Summons, and Waiver directed to Moates 

and GIBPE. 

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16. Plaintiff also believes that Moates is a registered ECF user. Moates has received 

Instructions to a Non-Prisoner Pro Se Plaintiff in no less than three cases. (Ex. 14) 

17. On August 2, 2023, Plaintiff filed a Request for Clerk’s Entry of Default (Dkt. 36). 

This Request was served upon Moates and GIBPE by email at mike@cpmht.com and first class 

mail at 4501 Nautilus Circle #710, Fort Worth, Texas 76106. 

18. Faced with an entry of default, on August 3, 2023, Moates made an appearance in 

this case and filed a Motion to Dismiss for Failure to Serve and Reply to the Motion for Default 

Judgment (Dkt. 37). The email and mailing addresses within Moates’ signature block in this filing 

are consistent with the addresses used for service of the Complaint and service of the Request for 

Clerk’s Entry of Default. The fact that Moates was able to receive, review, and respond to 

Plaintiff’s Request for Clerk’s Entry of Default within 24 hours indicates that Moates successfully 

received Plaintiff’s pleading via email rather than USPS First Class Mail, which takes one to five 

business days for delivery. (www.usps.com) 

ARGUMENT 

I. Defendants Moates and GIBPE Have Been Served. 

 Plaintiff incorporates by reference the facts and sequence of events described in Paragraphs 

3 through 10 of Plaintiff’s Request for Clerk’s Entry of Default (Dkt. 36). 

 The extensive factual background provided above conclusively proves that Defendants 

Moates and GIBPE are not only aware of this lawsuit, but have been served in countless ways by 

Plaintiff. Pursuant to F.R.C.P. 4(d), Defendants Moates and GIBPE have a “duty to avoid 

unnecessary expenses of serving the summons.” Defendants Moates and GIBPE have fallen far 

short of this duty, causing Plaintiff to incur great expense in attempt to serve all defendants. 

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II. Defendant Moates’ Motion to Dismiss is Untimely 

 As demonstrated in the above factual background, at the earliest, Moates was served on 

May 22, 2023 and, at the latest, Moates was served on May 30, 2023. Using the latter date, Moates’ 

answer or responsive pleading was due by June 20, 2023. 

 Rule 6(b)(1) specifically states that: 

"When an act may or must be done within a specified time, the court may, for 

good cause, extend the time: 

... 

(B) on motion made after the time has expired if the party failed to act because 

of excusable neglect. 

 Moates failed to seek leave of court allowing the submission of a responsive pleading after 

the deadline. The Motion to Dismiss was filed 44 days after the deadline under F.R.C.P. 12(a)(1). 

In Canup v. Mississippi Val. Barge Line Co., 31 F.R.D. 282 (W.D. Pa. 1962), the court stated that 

“a party may seek an extension, but when he fails to do so, and gives no excuse for his delay 

beyond twenty days, except inadvertence, the other party may be entitled to an entry of default.” 

 Defendant Moates chose to roll the dice and play games with the judicial process in 

deciding not to file an answer or a responsive pleading within the appropriate court mandated time 

frame. Moates could have even filed the present motion within the requisite timeframe, but failed 

to do so. It was not until Moates was faced with an entry of default that he decided to respond. 

III. Defendant Moates Has Failed to Demonstrate Excusable Neglect 

 Despite the fact that Moates did not request an extension of time under Rule 6 in which to 

file his Motion to Dismiss, Moates would still need to demonstrate that his failure to act was 

excusable neglect. Moates has done no such thing. 

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 Four factors are considered in determining whether neglect is excusable, including (1) the 

danger of prejudice to the other party, (2) the length of the delay and its potential impact on judicial 

proceedings, (3) the reason for the delay, including whether it was within the reasonable control 

of the movant, and (4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick 

Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993). Excusable neglect “covers cases of negligence, 

carelessness, and inadvertent mistake.” Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224 (9th 

Cir. 2000) (internal citation omitted). “The determination of “what sorts of neglect will be 

considered ‘excusable’ ... is at bottom an equitable one, taking account of all relevant 

circumstances surrounding the party's omission.” Pioneer, 507 U.S. at 395. 

A. The Danger of Prejudice to Plaintiff 

 Plaintiff has been actively pursuing its claims against Defendants for 16 months. 

Defendants have made every attempt to thwart Plaintiff’s lawsuit thus preventing Plaintiff’s 

attempts to seek justice. Defendants have been actively and publicly attempting to tarnish 

Plaintiff’s reputation by promulgating and perpetuating falsehoods about Plaintiff – both through 

public media outlets and through litigation by the many cases filed by Moates. The longer 

Defendants are allowed to delay legitimate court processes, the longer Plaintiff’s reputation is 

injured without recourse. 

B. The Length of The Delay and Its Potential Impact on Judicial Proceedings 

 The delay that Plaintiff has experienced is extreme and ongoing. Plaintiff has spent many 

thousands of dollars in attorney fees and costs in attempt to litigate this case. After 16 months, 

Defendants and witnesses have moved and/or changed jobs; officers and directors of GIBPE have 

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moved out of state; memories fade; evidence is not properly preserved; and Defendants continue 

their defamation crusade against Plaintiff. 

C. The Reason for The Delay, Including Whether It Was Within The 

Reasonable Control of The Movant 

 The reason for Moates’ delay with filing a Motion to Dismiss was fully intentional and 

under his reasonable control. Evidence shows that Moates has remained informed about this 

lawsuit but has chosen to remain silent until faced with the risk of entry of default. 

D. Whether The Movant Acted In Good Faith 

 Moates’ actions have not been in good faith. Rather, he attempts to side step and ignore 

the court system by pretending that he is uninformed and has not been served. Moates agreed to 

sign a waiver if the Complaint and Summons were mailed to his residence. When Plaintiff 

complied with his requests (despite service having already been achieved), he promptly reneged 

and fell silent. As a frequent litigant, Moates is familiar with the Rules of Civil Procedure and has 

intentionally ignored his obligations. Such gamesmanship should not be rewarded. 

IV. GIBPE Remains in Default 

 The factual background establishes that GIBPE was served no less than three times.2 At 

the latest, GIBPE’s answer or responsive pleading was due no later than June 20, 2023. 

 Moates cannot argue that his Motion to Dismiss, as a pro se litigant, was also meant address 

the service of process upon GIBPE. In fact, his Motion to Dismiss does not address service of 

GIBPE at all. Appearances filed in the federal courts are governed by 28 U.S.C.A. § 1654. Cases 

involving 28 U.S.C.A. § 1654 hold that corporations may not appear pro se in the federal court. A 

2

 First, on May 19, 2023, see Affidavit of Service (Dkt. 25). Second, on May 22, 2023, see 

Affidavit of Service (Dkt. 19). Third, on May 30, 2023, see Ex. 12. 

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corporation cannot represent itself pro se even where the corporation has one shareholder who is 

also the president. This is so even where the corporation cannot afford counsel. See, e.g., 

Southwest Exp. Co. v. I. C. C., 670 F.2d 53, 56 (5th Cir. 1982) (“a corporation, cannot appear in 

proper person as a corporation or through its corporate officer, under settled interpretations 

applicable to 28 U.S.C. s 1654. It can enter an appearance in this court only through an attorney 

admitted to practice before this court.”) (emphasis added). 

 To date, GIBPE has failed to make an appearance or file a responsive pleading in this 

action. “The defendant corporation's failure to ... secure counsel constitutes a failure to defend 

and will subject the party to a default judgment.” Bravado Intern. Group Merchandising Services, 

Inc. v. Ninna, Inc., 655 F. Supp. 2d 177 (E.D. N.Y. 2009); see also Citadel Commerce Corp. v 

Cook Sys., Inc., 2009 WL 1515736, at *1 (M.D. Fla. 2009) (“Entry of default is a proper sanction 

for a defendant corporation’s failure to obtain counsel.”). Therefore, GIBPE has failed to answer 

or otherwise defend and remains in default. 

 WHEREFORE, Plaintiff respectfully requests that this Court to enter an Order 1) striking 

Moates’ Motion to Dismiss (Dkt. 37) as untimely; 2) granting Plaintiff’s Request for Clerk’s Entry 

of Default (Dkt. 36) against Defendants Moates and GIBPE; 3) awarding attorney fees and costs; 

and 4) for such further relief this Court deems just and proper. 

 

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 Respectfully submitted this 24th day of August, 2023. 

HALL, RENDER, KILLIAN, HEATH & LYMAN, P.C. 

s/ Mark L. Sabey 

Mark L. Sabey, pro hac vice 

Lindsay K. McManus, pro hac vice

999 17th Street, Suite 800, Denver, CO 80202 

303-801-3538 / marksabey@hallrender.com 303-802-1293 / lmcmanus@hallrender.com 

and 

Brandon S. Kulwicki 

HALL, RENDER, KILLIAN, HEATH & LYMAN, P.C. 

603 Munger Avenue, Suite 350, Dallas, TX 75202 

P: 214-615-2025 / F: 214-615-2001 

bkulwicki@hallrender.com 

ATTORNEYS FOR PLAINTIFF 

CERTIFICATE OF SERVICE 

 The undersigned certifies that on August 24, 2023, a true and correct copy of the foregoing 

was served upon the following: 

Misty Kieschnick

9448 Castlewood Dr. 

Fort Worth, TX 76131 

m.kieschnick@att.net Defendant – pro se 

Michael Moates 

4501 Nautilus Circle, Apt. 710 

Fort Worth, TX 76106 

mike@cpmht.com

Defendant – pro se 

The Global Institute of Behavioral Practitioners and Examiners 

4501 Nautilus Circle, Apt. 710 

Fort Worth, TX 76106 

mike@cpmht.com

Defendant – pro se 

s/ Mark L. Sabey 

Mark L. Sabey, pro hac vice 

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