Wednesday, October 11, 2006

The Marx Filings Updated Index . . . .#11

Several people have emailed me or posted messages at the CXR asking about the progress of the case and if we had a court date yet. This seemed like a good time to update the "Marx Filings" index to show what the actual activity has been.

This is a continuation of post #6. This information is taken out of my latest pleading and is a detailed and accurate rendition of the timeline since July 19, 2006.

Plaintiff = Toytrackerz [Noah & Terri Coop] Defendant = American Plastic [Jay Horowitz]


1. Plaintiff’s Motion For Partial Summary Judgment was filed on July 19, 2006.

2. On August 2, 2006 , Defendant’s original attorney, Jan P. Helder Jr. filed a Motion to Withdraw citing his federal legal troubles as good cause.

3. As of August 14, 2006, Defendant had not filed an Answer and Plaintiff filed the first Motion For Default Judgment.

4. On August 14, 2006 , Defendant’s present attorney, David E. Herron II filed an Entry of Appearance.

5. Later in the day on August 14, 2006, Mr. Herron filed a Motion for Extension of Time citing Jan Helder’s sudden ‘tragedy’ as grounds.

6. On August 16, 2006, Judge Waxse issued an order allowing Jan P. Helder Jr. to withdraw as Defendant’s attorney.

7. On August 18, 2006 , Terri Coop and David E. Herron II participated in a telephone status conference with Magistrate Judge David Waxse. Mr. Herron verbally addressed the Motion for Extension of Time and asked for thirty days. Terri Coop consented to fifteen days. Defendant, again, cited Jan Helder’s ‘troubles’ as reason for the extension. During the telephone conversation, Judge Waxse set the day for Defendant to respond to Plaintiff’s Motion for Partial Summary Judgment as September 5, 2006. [Judge Waxse also directed parties to file a supplemental brief on the remand question by August 25, 2006].

8. On August 21, 2006, Judge Waxse issued a written order stating: "Defendant’s Motion for Extension of Time to file a brief in response to Plaintiff’s Motion for Partial Summary Judgment is granted and the deadline before which Defendant must file this response is extended to September 5, 2006."

9. On August 29, 2006 , Jan Helder entered into federal custody and is currently housed at the Bates County Missouri Correctional Center. This information was confirmed by Plaintiff by telephone with the Bates County Sheriff’s Department on October 5, 2006.

10. On August 30, 2006, the case was remanded back to the District Court of Bourbon County.

11. As of September 6, 2006 , Defendant had not filed an Answer or other responsive pleading, nor had Defendant requested additional time. Defendant did not contact Plaintiff regarding this issue.

12. On September 6, 2006, Plaintiff filed a second Motion for Default Judgment with this court.

13. On September 18, 2006, Plaintiff received a copy of a “Motion For Enlargement of Time To Plead or Respond.” Defendant cited Jan Helder’s incarceration as a reason to be granted more time to respond.

14. On September 19, 2006, Plaintiff filed a Response in Opposition to Defendant’s motion for enlargement of time.

15. On October 4, 2006, Defendant filed an “Application For Extension of Time To Respond To Motion For Summary Judgment.” [Motion has been pending since July 19]

16. On October 5, 2006, Plaintiff filed a Response in Opposition to Defendant's motion for extension of time.

17. [On October 5, 2006, Judge Waxse awarded legal fees to Plaintiff for Defendant's meritless and frivolous removal of matter to federal court]


So, as you can see, the Defendant has filed nothing except requests for more time to answer a motion that has been in court since July 19, 2006. We continue forward, confident in our position and will continue to answer everything that comes our way.

Thanks to everyone for their support - Terri

Saturday, October 07, 2006

Objectively Reasonable . . . #10

Good Morning! Not too much going on in the lawsuit as it continues in its glacial pace towards a resolution.

However, there was one development that merits comment. I told you last time that our case was remanded from federal court back to state court. Based on that remand, I filed a motion for attorney's fees based on the work I had to do to get the case back where it belonged.

Thursday, the Judge ruled on that motion and granted us a fair and reasonable award of attorney's fees, stating:

"The Court concludes that Defendant [American Plastic] lacked an objectively reasonable basis for seeking removal. Plaintiff [Toytrackerz] was required to devote time and resources to a facially meritless removal proceeding.

"Thus, the Court will require Defendant to pay Plaintiff's attorney's fees and costs expended in this frivolous removal litigation.

"The fees and costs shall be paid to the Plaintiff within twenty (20) days of the filing of this Order."

Hope to have some more announcements soon! Stay tuned - this is where you will hear the truth, taken from the public record, about this case. Thanks to everyone for their support. Terri