1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

John C. Hendricks, State Bar No. 019493 

jhendricks@meagher.com

MEAGHER & GEER, P.L.L.P. 

8800 North Gainey Center Drive, Suite 261 

Scottsdale, AZ 85258 

Telephone: (480) 607-9719 

Facsimile: (480) 607-9780 

Attorneys for Plaintiffs 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

MidWest Warehousing & Transportation, Inc., 

an Iowa corporation, 

 Plaintiff, 

V. 

JKJ Transport, Inc., a California transport 

company; VFS Leasing Co LSR, a California 

business entity; Francisco J. Toro and Jane Doe 

Toro, Husband And Wife; John Doe And Jane 

Doe 1-25, husband and wife; ABC Corporation 

1-25, 

 Defendants. 

No. 3:17-cv-08265-JAT 

MOTION FOR 

RECONSIDERATION 

Plaintiff, MidWest Warehousing & Transportation, Inc. (“MidWest”), files this 

Motion for Reconsideration of the Court’s Order dated March 21, 2018 (Doc. 17), 

dismissing without prejudice Defendants VFS Leasing Co. LSR (“VFS”), Francisco J. Toro 

and Jane Doe Toro (“Defendants Toro”), and JKJ Transport Company (“JKJ”). The Court’s 

March 21 Order dismisses VFS and Defendants Toro without prejudice for failure to 

prosecute and failure to comply with a Court Order and dismisses JKJ without prejudice for 

Case 3:17-cv-08265-JAT Document 19 Filed 03/21/18 Page 1 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2 

failure to serve within the time limits established in Fed.R.Civ.P. 4(m). Plaintiff 

respectfully requests the Court to reconsider the March 21 Order for the following reasons: 

1. The record in this case shows that: (a) Defendant VFS was served with 

process on February 5, 2018, as established by an affidavit of service that was filed with the 

court on March 12, 2018 (Doc 13); (b) Defendants Toro were also served on February 5, 

2018, as established by an affidavit of service that was filed on March 15, 2018 (Doc. 16); 

and Defendant JKJ Transport, through counsel, accepted service on March 14, 2018 (Doc. 

14). 

2. This Court’s Order dated March 14, 2018 (Doc. 15), directed (at 2:15) that 

proofs of service for Defendants Toro be filed by the next business day (March 15, 2018). 

Plaintiff did comply with that portion of the court’s March 14 order by filing on March 15 

the affidavit of service showing that Defendants Toro had been served on February 5, 2018 

(Doc. 16). 

3. However, the Court’s March 14 Order also directed (at 2:17-20) “that 

Plaintiff must either move for default against VSR Leasing Co. LSR and Defendants Toro 

by March 19, 2018, or by March 20, 2018, show cause why these three Defendants should 

not be dismissed for failure to prosecute (see Fed. R. Civ. P. 41(b))” and “that by March 20, 

2018, Plaintiff must move for an extension of time to serve JKJ Transport Company 

applying the correct legal test or Defendant JKJ Transport Company will be dismissed for 

failure to serve.” As further noted in the March 14 Order (at 2:8-12) and in this Court’s 

General Order (Doc. 4), extending the time for an answer requires “a showing that a 

defendant cannot reasonably respond to a complaint within the time set forth in Rule 

12(a)(1)-(3).” 

4. Counsel for Plaintiff candidly and with embarrassment acknowledges that the 

failure to comply with the portion of the Court’s March 14 Order requiring plaintiff by 

March 19 to move for default against VFS and/or by March 20 to show cause why 

Case 3:17-cv-08265-JAT Document 19 Filed 03/21/18 Page 2 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3 

Plaintiff’s claims should not be dismissed for failure to prosecute was the result, quite 

frankly, of an oversight by Plaintiff’s counsel due to work on other matters. Plaintiff’s 

counsel further acknowledges that his oversight has needlessly inconvenienced the Court, 

for which Plaintiff’s counsel most humbly apologizes. 

5. In the event this Court sees fit to grant this Motion to Reconsider, Plaintiff’s 

counsel will, of course, promptly file an application for entry of default against VFS in 

accordance with the requirements of Fed.R.Civ.P. 55. 

6. Plaintiff respectfully also submits that there is good cause for extending the 

time for Defendants Toro and JKJ to answer until March 30, 2018, for the following 

reasons: 

(a) This case involves an insurance subrogation claim for damages 

resulting from a semi-truck accident that occurred on December 12, 2015. 

Consequently, this is a case involving events that occurred more than two years ago. 

(b) Plaintiff’s counsel was initially contacted about this case by Susan J. 

Wees, Esq., who has confirmed that she, James F. Wees, Esq., and the Wees Law 

Firm will be defending Defendants Toro and JKJ in this case. See also Acceptance 

of Service for JKJ (Doc. 14) signed by James F. Wees, Esq. 

(c) When Ms. Wees initially contacted Plaintiff’s counsel about this case 

in an email dated February 9, 2018, she indicated that before she could answer or 

file a responsive motion she would need additional time to conduct an investigation 

and contact her clients. 

(d) Plaintiff’s counsel and Ms. Wees subsequently discussed this case 

during a telephone call on February 23, 2018. During that call, Ms. Wees once again 

indicated that she would need more time for an answer or responsive motion in order 

to have time to investigate this case and due to scheduling conflicts involving other 

matters. Plaintiff’s counsel also suggested that it might be useful to have additional 

Case 3:17-cv-08265-JAT Document 19 Filed 03/21/18 Page 3 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4 

time so the parties could discuss a possible settlement before incurring further 

litigation costs. 

(e) For those reasons, Plaintiff’s counsel and Ms. Wees agreed on a March 

30 date for Defendants Toro and JKJ’s answer or responsive motion. 

(f) In furtherance of a possible settlement, Plaintiff’s counsel also made a 

settlement offer to counsel for Defendants Toro and JKJ on March 12, 2018. 

(g) In addition, Plaintiff’s counsel and counsel for Defendants Toro and 

JKJ discussed an acceptance of service by JKJ and other matters relating to this case 

on March 14, 2018. 

(h) Plaintiff respectfully submits that although Defendants Toro and JKJ 

have not yet filed an answer or responsive motion, Plaintiff has not failed to 

prosecute this case because the parties have been working together so that 

Defendants Toro and JKJ will have the opportunity they need to investigate events 

that occurred more than two years ago in order to meaningfully respond to Plaintiff’s 

Complaint while Plaintiff is at the same time exploring the possibility of a 

settlement without the need for further litigation. 

(i) Nonetheless, Plaintiff’s counsel acknowledges that, as required by this 

Court’s General Order (Doc. 4), Plaintiff’s counsel was obligated and failed to 

obtain the Court’s authorization before agreeing to extend the time for an answer or 

responsive motion by Defendants Toro and JKJ. 

(j) Plaintiff’s counsel once again humbly apologizes for failing to comply 

with this Court’s Orders. 

7. Plaintiff further submits that there is good cause for extending the deadline 

for serving JKJ because Plaintiff’s counsel had been assured prior to the deadline for 

serving JKJ that JKJ was represented by counsel who would be appearing to file an answer 

or responsive motion on JKJ’s behalf, because JKJ, through counsel, did in fact accept 

Case 3:17-cv-08265-JAT Document 19 Filed 03/21/18 Page 4 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5 

service on March 14, 2018, and because counsel for Plaintiff and JKJ have been working 

together to give counsel for JKJ the opportunity they need to investigate and respond to 

Plaintiff’s Complaint while Plaintiff is at the same time exploring the possibility of a 

settlement without the need for further litigation. 

8. A proposed Order accompanies this Motion for the Court’s consideration. 

WHEREFORE, Plaintiff respectfully requests the Court to enter an Order: 

1. Granting this Motion to Reconsider; 

2. Vacating the Order (Doc. 17) dismissing the claims against VFS, Defendants 

Toro, and JKJ without prejudice; 

3. Vacating the Clerk’s Judgment (Doc. 18) dismissing the claims against VFS, 

Defendants Toro, and JKJ without prejudice; 

4. Establishing a March 30 deadline for Defendants Toro and JKJ to file an 

answer or motion responding to Plaintiff’s Complaint; and 

5. Establishing a deadline for Plaintiff to file an application for a default 

judgment against VFS in accordance with the requirements of Fed.R.Civ.P. 55. 

DATED this 21st day of March 2018. 

MEAGHER & GEER, P.L.L.P. 

By: /s/John C. Hendricks 

 John C. Hendricks 

 8800 N. Gainey Center Drive, Suite 261 

 Scottsdale, Arizona 85258 

 Attorneys for Plaintiffs 

Case 3:17-cv-08265-JAT Document 19 Filed 03/21/18 Page 5 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

6 

CERTIFICATE OF SERVICE

I hereby certify that on this 21st day of March 2018, I electronically transmitted the 

attached document to the Clerk’s office using the CM/ECF system for filing and transmittal 

of a Notice of electronic filing to the following CM/ECF registrants: 

Clerk, U.S. District Court 

405 W. Congress Street, Suite 1500 

Tucson, AZ 85701-5010 

Honorable James A. Teilborg 

United States District Court 

Sandra Day O’Connor U.S. Courthouse, Suite 

401 W. Washington Street, SPC 

Phoenix, Arizona 85007 

I hereby certify that on March 21st , 2018 I delivered a courtesy copy of the attached 

document by US Mail to the following: 

Susan J. Wees, Esq. 

Wees Law Firm, LLC 

3216 N. Third St., Ste. 201 

Phoenix, AZ 85012 

By: /s/Judy Mannino 

Case 3:17-cv-08265-JAT Document 19 Filed 03/21/18 Page 6 of 6