ORDER CLARIFYING CLAIMS AND PARTIES (Re: Docket No. 256)

PAUL S. GREWAL, Magistrate Judge.

The pre-trial conference made clear that even as trial approaches the parties continue to dispute what claims and parties remain in this case. Given the difficult procedural history of this case, perhaps this is not surprising. In any event, as explained below, the court clarifies as follows: three-and-a-half claims remain, and because Focus Infomatics, Inc. and the individual defendants are dismissed, the only remaining defendant is Nuance Communications, Inc.

I. ONLY THREE-AND-A-HALF CLAIMS REMAIN.

Plaintiff Krishna Reddy contends Nuance's answer was late, and so Nuance's defenses at trial should be limited to the those causes of action that Nuance responded to in its partial motion to dismiss1—which, in fact, the court dismissed, and for which Reddy did not take the opportunity to amend.

Reddy's arguments that Nuance failed to answer the complaint properly have been denied on three prior occasions.2 She first argued default judgment should be granted against all Defendants in her cross-motion for judgment for failure to state a valid defense pursuant to Fed. R. Civ. P. 12(h)(2)(B) and 12(f).3 Reddy noted that the individual defendants and Focus had not answered her complaint, and that Nuance had only moved to dismiss the sixth and tenth causes of action and part of the ninth.4 She construed Nuance's motion to dismiss as an answer, arguing Nuance defaulted on the remaining seven-and-a-half claims and the remaining causes of action.5 Reddy also moved for default separately.6 In denying Reddy's cross-motion for judgment,7 the court ordered Reddy to file any amended complaint by March 30, 2012, after granting Nuance's partial motion to dismiss with leave to amend, and ordered Nuance to answer within 14 days of service of the amended complaint pursuant to Fed. R. Civ. P. 15(a)(3).8

Reddy did not file any amended complaint, though she did file a motion for reconsideration styled as a motion to set aside and vacate the court's order.9 When Nuance answered,10 Reddy moved to strike "the late-filed answer and other pleadings by the Defendant Nuance Communications, Inc. and for Judgement for the Plaintiff."11 In addition to asking the court to strike Nuance's answer and grant default because she alleged Nuance filed its answer late, Reddy argued that Nuance's denials in its answer were in bad faith, and requested that Nuance post a bond as a condition for hindering the proceedings.12 The court denied Reddy's motion for reconsideration for failure to fulfill any of Civ. L. R. 7-9(b)'s prongs. Reddy had not shown that the court manifestly failed to consider the material facts and legal arguments Reddy presented.13 The court also denied Reddy's motion to strike as moot, because the court had already twice addressed her motion for default judgment against Nuance based on its answer.14 The result was that seven-and-a-half claims, and Nuance's answer, remained.

Nuance then timely moved for summary judgment on claims three, four, seven and eight, one month before its deadline to do so.15 Reddy cross-moved to strike Nuance's motion for summary judgment.16 The court considered her cross-motion even though it was not noticed pursuant to Civ. L.R. 7-2. The court then denied the cross motion and granted Nuance's motion for summary judgment as to claims three, four, seven and eight.17 Nuance also had filed an amended motion for summary judgment seeking to dismiss claims one, two and five.18 Because it was filed more than two months after the deadline, the court denied Nuance's amended motion.19

Where does all of this leave us? Claims one, two and five remain, in addition to claim nine's allegations of negligent infliction of emotional distress.

II. FOCUS INFOMATICS, INC. IS DISMISSED FROM THIS CASE.

Reddy contends Defendant Focus Infomatics, Inc. does business separately from Nuance. She says Focus, not Nuance, executed employment contracts with Reddy.20 Because only Nuance responded to her complaint, Reddy argues Focus defaulted in this action.21 The parties' history, and this case's record, however, suggests otherwise.

Focus Enterprises Ltd., subsidiary to Nuance, hired Reddy in October 2007 and fired Reddy in May 2009.22 On April 5, 2010 Focus Enterprises Ltd.'s name changed to Focus Infomatics, Inc.23 On November 3rd, 2010, Focus merged with four other companies to form Nuance Transcription Services, also subsidiary to Nuance.24 Despite this change in name and structure, Reddy sued Focus Infomatics.25

When Focus did not answer, Reddy took the opportunity to request that the Clerk enter default against Focus,26 and the Clerk did so.27 Reddy then moved for default judgment from the court against Focus.28 She later noted that Focus did not oppose her motion for default.29 Reddy later renewed her motion for default judgment against Focus.30

At this point, Nuance attempted to oppose on behalf of Focus, attempted to answer for Focus and also attempted to inform Reddy that Focus did not exist.31 After considering the arguments, the court declined to enter default judgment against Focus—finding Reddy did not meet the Eitel factors—and instead ordered Focus to answer.32 Receiving no responsive pleading from Focus, the court then ordered Focus to show cause why default judgment should not be granted against it for failing to answer.33 Nuance responded that Focus has not existed as a cognizable legal entity throughout this litigation, but also that Nuance would do whatever the court requested to satisfy its order, included filing a separate answer on behalf of Focus.34

Rather than seeking anything more from Focus/Nuance, the court twice granted Reddy leave to amend her complaint to substitute NTS for Focus.35 But Reddy elected not to amend her complaint. Because Reddy has declined the court's repeated invitations to substitute NTS, and the court may not allow a case to go forward against a nonexistent party,36 the court now DISMISSES Focus Infomatics as a defendant.

III. THE INDIVIDUAL DEFENDANTS ARE DISMISSED FROM THIS CASE.

During the pre-trial hearing, the parties also presented arguments over whether the individual defendants were still in this case.37 Reddy said the individual defendants were properly served, they consented to the court's jurisdiction, they should have answered her complaint and default judgment should be granted against them.38 Nuance responded that the individual defendants specially appeared, were never served, did not waive service and should be dismissed.39 Once again, the parties' history and this case's record is instructive.

On February 2, 2012, Reddy requested that the Clerk enter default of the individual defendants.40 In her request, Reddy noted that the summons and complaint were served "on the person in charge of the office for which each of the defendants worked, Ms. Nancy Newark, Legal Counsel—Employment, at Nuance Communications, Inc., as well as by service of a duplicate sent via Certified Mail with Return Receipt on December 30, 2011."41 The Clerk declined default as to Diane Coffey42 and granted default as to Paul Ricci, Jeanne Nauman, Catherine Dorchuk, Richard Nardone, John Hagen and Matthew Liptak.43 Ricci, Nauman, Dorchuk and Coffey then specially appeared and objected to Reddy's proof of service and the Clerk's entry of default, contending Reddy had not properly effectuated service under Fed. R. Civ. P. 444 and they had not waived service.45

Reddy nonetheless moved for an order of default judgment from the court.46 She contended the four objecting individual defendants could not specially appear, their objections were untimely and waived, service was proper and they could not "open up their default."47 Reddy also emphasized that her service was sufficient given the circumstances—lack of communication with opposing counsel, lack of awareness of personal residences and pressing court deadlines.48

In its orders responding to the parties conflicting motions, the court found no support for Reddy's proposition that judgment should be entered because Nuance failed to substitute itself for the individual defendants who allegedly acted in their official capacities.49 The court was also persuaded that Reddy did not serve the individual defendants in accordance with either the federal or state provisions for services recognized by Fed. R. Civ. P. 4.50 The court granted the individual defendants' motion to set aside the default and denied Reddy's motion for default judgment.51

Once again, Reddy moved to set aside and vacate the court's order and moved for default judgment against the individual defendants.52 The individual defendants moved to dismiss for improper service, or in the alternative, requested that the court issue an order to show cause why the case should not be dismissed for failure to serve.53

The court denied Reddy's motion for reconsideration—styled to set aside default and for default judgment—for failure to meet the specific showings required.54 The court further denied Reddy's second motion for default judgment against the individual defendants for the same reason.55 Reddy still had not properly served the individual defendants.56 Recognizing the individual defendants had not made a voluntary general appearance and that the court had limited power because the individual defendants had not consented to magistrate jurisdiction, the court granted the individual defendants' request for an order to show cause and set a deadline of October 5, 2012 for Reddy to properly serve the individual defendants.57 The court held that "[i]f service is not effectuated by October 5, 2012, the complaint against the Individual Defendants will be dismissed without prejudice."58

But rather than properly serving the individual defendants, one week before her deadline, Reddy appealed to the Ninth Circuit as to the court's order to serve the individual defendants and other orders.59 This was in vain, because she had not received certification for an interlocutory appeal.60 On the October 5, 2012 deadline, again rather than properly serving the individual defendants, Reddy challenged to the court's order.61 She asserted that the court's ruling was prejudicial, the individual defendants voluntarily consented to magistrate jurisdiction rendering the court's order to re-serve moot and the pending appeal should stay enforcement of the court's order to re-serve the individual defendants.62 The court declined to stay the case as Reddy's appeal was frivolous,63 and the Ninth Circuit denied her appeal for lack of jurisdiction.64

In the end, Reddy never properly served the individual defendants. Her complaints against them therefore are dismissed.65

Nuance is the sole remaining Defendant.

SO ORDERED.