United States District Court, W.D. Kentucky, Bowling Green Division
THOMAS B. RUSSELL, Senior District Judge.
This matter comes before the Court upon several Motions, some filed by both Plaintiff Denise Clark and some by Defendant Linda Wenger. The Court will address each of these Motions below and will issue an appropriate Order concurrently.
This lawsuit arises from a soured business deal between Wenger and Clark, both of whom breed Bernese Mountain Dogs, "a breed that originated in the Swiss Alps and that is known for its large, muscular build and good-natured, docile temperament." (Docket No. 1-4 at 1.) Wenger, a California resident, and Clark, a Kentucky resident, formed an informal partnership: from 2010 to 2013 they split the profits generated by Kentucky-born puppies that were sold in California. These puppies were sold with limited rights of registration with the American Kennel Club ("AKC"): that is, the puppies themselves would be recognized by the AKC as purebred Bernese Mountain Dogs, but their offspring could not be so registered. (Docket No. 1-4 at 2.) This arrangement generated gross sale proceeds of approximately $200, 000.00 over the nearly three-year period. (Docket No. 1-4 at 2.)
With an eye toward showing select dogs competitively, Clark and Wenger retained ownership of a female puppy named Maddie and a male puppy named Coby. They agreed that the dogs would reside with Wenger, a more experienced exhibitor. (Docket No. 1-4 at 3.) Wenger also represented that for competition purposes, both Maddie and Coby initially had to be registered in the AKC only in Wenger's name. (Docket No. 1-4 at 3.)
However, in Clark's telling, she learned in June 2013 that Wenger had clandestinely bred Coby to Maddie and had solicited reservations and deposits for their progeny, a litter of seven. (Docket No. 1-4 at 3.) Clark also discovered that Wenger hired Coby out for stud, sharing none of stud fees with Clark. (Docket No. 1-4 at 4.) Finally, Clark alleges that instead of selling two puppies-Sleigh Bell and Showpiece-with limited American Kennel Club registrations, Wenger retained them for herself with a full registration. (Docket No. 1-4 at 4.)
On July 5, 2013, Clark filed her Complaint in the Warren Circuit Court, alleging breach of fiduciary duty, fraudulent concealment, and breach of contract. (Docket No. 1-2.) She effectuated service using Kentucky's long-arm statute, listing the Secretary of State as an agent for service of process. See Ky. Rev. Stat. 454.210. Clark sought an accounting, specific performance for the limited registrations of Majestic Sleigh Bell and CA Majestic Showpiece, and for an injunction proscribing Wenger from using Maddie and Coby for breeding. She also sought compensatory and punitive damages. (Docket No. 1-2.)
According to Clark, the United States Postal Service ("USPS") attempted to deliver the summons and complaint via certified mail from the Kentucky Secretary of State to Wenger in July 2013. The attempted delivery was futile, though, as Wenger allegedly refused acceptance. ( See Docket No. 5-4 at 2.) The Secretary of State's Return of Service indicated that the summons and accompanying documents were mailed on July 11, 2013. (Docket No. 5-1 at 2.)
On October 4, 2013, Clark amended her Complaint to ask that Maddie and Coby be returned to her custody. (Docket No. 1-4.) As before, Clark attempted to serve Wenger through the Kentucky Secretary of State, but Wenger again refused acceptance. The Secretary of State's second Return of Service indicated that the summons and accompanying documents were mailed on October 8, 2013. (Docket No. 5-1 at 3.)
On November 21, 2013, Clark filed a Motion for Default Judgment on the Issue of Liability. The Warren Circuit Court scheduled a hearing from December 23, 2013, and mailed a copy of the scheduling order to Wenger using regular mail. On January 3, 2014, Wenger, through counsel, removed the state court action to this Court based on diversity of citizenship. (Docket No. 1.)
I. Motion for Supplementation of Federal Court Record
As an initial matter, the Court notes that Clark asked the Court to order Wenger to file various documents that were not included with her Notice of Removal. (Docket No. 5) Namely, Clark seeks three Return of Service documents issued by the Kentucky Secretary of State, two of which reported that the July 11, 2013, and October 22, 2013, certified mailings were refused. (Docket No. 5 at 1.) Clark herself attached these Returns to her Motion in support of her argument that the Complaint was made available to Wenger more than thirty days before the filing of the Notice of Removal. ( See Docket No. 5-1.)
In response, Wenger has attached additional exhibits that she argues offer a more comprehensive depiction, including a handwritten note from the Warren Circuit Court Judge speculating that a warning order attorney could be appropriate; Wenger's response to Clark's motion for default judgment in Warren Circuit Court, which states that she learned of the lawsuit only when she received the court's scheduling order on December 23, 2013; and an affidavit stating that she never refused an attempt at service. ( See Docket Nos. 6-1, 6-2, and 6-3.)
All of the supplemental exhibits having been included with the Motion and Response, the Court will grant Clark's Motion for Supplementation. All attachments and exhibits to Clark's Motion, (Docket No. 5), and Wenger's Response, (Docket No. 6), are hereby ordered filed. The Court will ...