In re McGann, No. 20-18118 (Oct. 27, 2025)

Case details
Full caption
In re: Sherry Ann McGann
Country
United States
Jurisdiction
Colorado (CO)
Court
Colorado Supreme Court
Decided
Oct. 27, 2025
Disposition
Dismissed
Majority
Chief United States (J.) (unanimous Court)
© 2025 Thomson Reuters. No claim to original U.S. Government Works.In re: SHERRY ANN MCGANN, Debtor. SHERRY ANNMCGANN, Plaintiff, v. JEANNE Y. JAGOW, LIBERTY MUTUALINSURANCE COMPANY, and DAVID M. MILLER, Defendants.United States Bankruptcy Court, D. Colorado. | October 27, 2025 | Slip Copy | 2025 WL 3028987Document Detailsstandard Citation:In re: SHERRY ANN MCGANN, Debtor. SHERRY ANN MCGANN,Plaintiff, v. JEANNE Y. JAGOW, LIBERTY MUTUAL INSURANCECOMPANY, & DAVID M. MILLER, Defendants., No. AP 24-1179TBM, 2025 WL 3028987 (Bankr. D. Colo. Oct. 27, 2025)All Citations:Slip Copy, 2025 WL 3028987Search DetailsSearch Query:adv: (openai "artificial intelligence" chatgpt "google gemini" "westlawcocounsel" "large language model") (hallucinat! fake fictitious spuriousnonexistent "non-existent" "made up" imagined /p (gpt ai "artificialintelligence" chatgpt chaton perplexity openai copilot "google gemini""google bard" grok "mata v. avianca" claude llm llms)) (hallucinat! fakefictitious spurious nonexistent "non-existent" "made up" imagined) +3(precedent case "legal authority" "legal case") & DATE(aft 1/1/2023)Jurisdiction:ColoradoDelivery DetailsDate:November 1, 2025 at 7:56 AMDelivered By: Client ID:NOCLIENTIDOutlineChapter 7 (p.1)All Citations (p.12)
In re: SHERRY ANN MCGANN, Debtor. SHERRY ANN MCGANN,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3028987Only the Westlaw citation is currently available.United States Bankruptcy Court, D. Colorado.In re: SHERRY ANN MCGANN, Debtor.SHERRY ANN MCGANN, Plaintiff,v.JEANNE Y. JAGOW, LIBERTYMUTUAL INSURANCE COMPANY,and DAVID M. MILLER, Defendants.Bankruptcy Case No. 20-18118 TBM|Adv. Pro. No. 24-1179 TBM|Filed:10/27/2025Editor's Note: This decision contains discussion ofcitation references that are incorrect or do not actuallyexist. These invalid citations appeared in the originalcourt opinion and have been preserved as written sincethey are part of the official record. Any links to theseinvalid citations have been removed.Chapter 7ORDER DENYING ENTRY OF DEFAULT ANDENTRY OF DEFAULT JUDGMENT AGAINSTLIBERTY MUTUAL INSURANCE COMPANYThomas B. McNamara United States BankruptcyJudgeI. Introduction.*1 Sherry Ann McGann (the “Debtor”) fileda Chapter 7 liquidation case on December 20,2020. Displeased with the liquidation process, manyyears later (on August 6, 2024), she initiated thisAdversary Proceeding, McGann v. Jagow et al. (Inre McGann), Adv. Pro. No. 24-1179 (Bankr. D.Colo.) (the “Adversary Proceeding”), against: Chapter7 Trustee Jeanne Y. Jagow (the “Trustee”); DavidM. Miller, the Trustee's legal counsel, (the “Trustee'sCounsel”); and Liberty Mutual Insurance Company,the Trustee's purported bonding company (“LibertyMutual”) (together, the “Defendants”). The Debtorfiled an “Amended Complaint” wherein the Debtor (asPlaintiff) asserted all manner of alleged malfeasanceagainst the Defendants.The Trustee and the Trustee's Counsel filed a Motionto Dismiss requesting dismissal of all the claimsagainst them. The Debtor did not timely respond.So, on October 23, 2024, the Court granted theMotion to Dismiss and dismissed all claims againstthe Trustee and Trustee's Counsel. Such Order wasnot directed to the Debtor's claims against LibertyMutual. Thereafter, the Debtor commenced extensivepost-dismissal litigation in an effort to have the Courtreconsider and vacate the dismissal of the claimsagainst the Trustee and the Trustee's Counsel. TheCourt declined.Meanwhile, the Debtor failed to timely prosecute herremaining claims against Liberty Mutual. The Courtissued an Order to Show Cause why such claimsagainst Liberty Mutual should not be dismissed. TheDebtor responded. She asserted that she had properlyserved Liberty Mutual with legal process and requestedthat the Court enter “default judgment” against LibertyMutual (which has never responded to the AmendedComplaint). The Court denies the Debtor's request forentry of default and default judgment against LibertyMutual because the Debtor failed to establish thatLiberty Mutual was properly served with legal process.II. Jurisdiction and Venue.The Court generally has jurisdiction over the mattersraised in this Adversary Proceeding pursuant to 28U.S.C. §§ 1334(b) and (e) and 28 U.S.C. § 157(b). Thisis a core proceeding under 28 U.S.C. § 157(b)(2)(A)which governs “matters concerning the administrationof the estate.” Venue is proper in this Court under 28U.S.C. §§ 1408 and 1409.III. Procedural Background.A. The Debtor's Chapter 7 Bankruptcy Case
In re: SHERRY ANN MCGANN, Debtor. SHERRY ANN MCGANN,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2Four and a half years ago, the Debtor voluntarilyfiled for protection under Chapter 7 of the BankruptcyCode1 in the case captioned: In re McGann, CaseNo. 20-18118 (Bankr. D. Colo.) (the “Chapter 7Case”). A Chapter 7 Trustee was appointed: Jeanne Y.Jagow. Over the ensuing years, the Debtor has beenengaged in extensive litigation concerning the Debtor'sbankruptcy liquidation in this Court, the UnitedStates District Court for the District of Colorado, theBankruptcy Appellate Panel for the Tenth Circuit, theUnited States Court of Appeals for the Tenth Circuit,and the United States Supreme Court. The extent ofdisputed issues — in what would otherwise seemto qualify as a rather standard Chapter 7 liquidation— has been quite remarkable. For years, the Debtorsought to impede and prevent the Trustee from sellingthe bankruptcy estate's principal asset: the real propertyand improvements located at 1535 Grand Avenue,Grand Lake, Colorado (the “Grand Lake Property”).Throughout the course of the Chapter 7 Case, theDebtor asserted repeatedly that the Trustee's efforts tosell the Grand Lake Property, the Trustee's purportedfailure to pursue the collection of other assets thatthe Debtor believed the Trustee should pursue, andthe Trustee's alleged refusal to accept the Debtor'soffers to “settle” disputes related to sale of the GrandLake Property by allowing her to refinance the GrandLake Property and pay only her preferred creditors,amounted to professional negligence and misconduct.However, eventually, after great time and effort,the Trustee (with the Court's approval) successfullysold the Grand Lake Property for the benefit of thebankruptcy estate. That might have been the beginningof the end of the Chapter 7 liquidation.B. The Adversary Proceeding1. The Amended Complaint.*2 But, just before the sale of the Grand LakeProperty (in another apparent effort to block thesale and insert herself into the administration ofthe bankruptcy estate), the Debtor acting pro se,initiated this Adversary Proceeding against: theTrustee; the Trustee's counsel; and Liberty Mutual.The Debtor filed an “Amended Complaint,”2 whereinthe Debtor (as Plaintiff) asserted all manner ofalleged malfeasance against the Trustee and Trustee'sCounsel. The Amended Complaint asserts claimsfor: (1) “breach of fiduciary duty by the Trustee”;(2) “negligence” by the Trustee; (3) “unauthorizedpractice of law by Mr. Miller”; (4) “intentionalinfliction of emotional distress” by the Trustee;(5) “invasion of privacy” by the Trustee; and (6)“extortion” by the Trustee. Notably, none of thespecific claims set forth in the Amended Complaintappear directed to Liberty Mutual; except that theDebtor asked for “damages as per the bond terms.”32. Dismissal of the Trustee and Trustee's Counsel.After some initial skirmishes, the Trustee filed a“Motion to Dismiss with Prejudice” (the “Motionto Dismiss”).4 The Trustee's Counsel joined inthe Motion to Dismiss.5 (Liberty Mutual did notparticipate.) The Debtor failed to timely respond to theMotion to Dismiss. So, a few days after the passage ofthe response deadline, the Court — on an uncontestedbasis — entered its “Order Dismissing Claims againstJeanne Jagow and David Miller” (the “DismissalOrder”),6 dismissing all claims against the Trustee andTrustee's Counsel with prejudice as requested.The Debtor promptly sought to have the DismissalOrder “set aside.” She filed an “Amended MotionRequesting (I) Set Aside of Dismissal of Plaintiff'sComplaint; (II) Leave to Amend Complaint; (III)Demand for Jury Trial; and (IV) Hearing on thisMotion” (the “Amended Set Aside Motion”).7 TheDebtor, acting pro se, asserted that the DismissalOrder should be vacated because one of her formerattorneys, Roger K. Adams, engaged in “excusableneglect” in not responding to the Motion to Dismiss.She argued: “[t]he [m]issed [d]eadline [w]as [d]ue to[a]ttorney [n]eglect ...”; “[d]espite numerous attemptsto contact Mr. Adams who was alerted to the urgencyof the matter, including in-person meetings and emails,Mr. Adams failed to file the required response ....”;and “Plaintiff's failure to respond [to the Motion toDismiss] was entirely due to Mr. Adams’ failure tofile, not Plaintiff's own actions ....”8 In the AmendedSet Aside Motion, the Debtor identified no groundsfor “excusable neglect” other than blaming her legalcounsel for failing to respond to the Motion toDismiss. After a trial on the issues, the Court deniedthe Amended Set Aside Motion and, on June 23,2025, issued its “Order on Motion to Set Aside
In re: SHERRY ANN MCGANN, Debtor. SHERRY ANN MCGANN,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3Dismissal of Adversary Complaint, for Leave toAmend Complaint, and for Jury Trial” (the “OrderDenying Reconsideration of Dismissal Order”).9Per Fed. Bankr. P. 8002(a)(1), the 14-day deadlinefor the Debtor to appeal the Order DenyingReconsideration of Dismissal Order expired on July7, 2025 (assuming the finality of such Order).10 TheDebtor did not timely appeal. Instead, 21 days afterthe appellate deadline expired, on July 28, 2025, theDebtor filed “Plaintiff's Motion to Extend Time toFile Notice of Appeal from Order Denying Motionto Set Aside Dismissal (Doc. # 67 & # 68”)” (the“Motion to Extend Appellate Deadline”),11 assertingvarious reasons why the Debtor failed to file anotice of appeal of the Order Denying Reconsiderationof Dismissal Order within the 14-day deadline setforth in Fed. R. Bankr. P. 8002(a). After carefullyconsidering the issues, on August 15, 2025, theCourt entered its “Order Denying Motion to ExtendTime to File Notice of Appeal” (the “Order DenyingExtension of Appeal Deadline”).12 As the title ofthe Order Denying Extension of Appeal Deadlinesuggests, the Court determined that the Debtor failedto show excusable neglect warranting an after-the-factextension of time for filing an appeal of the OrderDenying Reconsideration of Dismissal Order underFed. R. Bankr. P. 8002(d)(1)(B). The Debtor disagreed.So, on August 25, 2025, she filed a “Motion to Alter orAmend Findings and Correct Record Pursuant to Fed.R. Bankr. P. 9023 and 7052” (the “Motion to Alter/Amend/Correct”).13 In the Motion to Alter/Amend/Correct, the Debtor moved the Court to reconsiderand vacate the Order Denying Extension of AppealDeadline. After further briefing, on October 1, 2025,the Court entered its “Order Denying Motion to Alteror Amend Findings and Correct the Record Pursuant toFed. R. Bankr. P. 9023 and 7052” (the “Order DenyingMotion to Alter/Amend/Correct”)14 leaving in placethe Order Denying Extension of Appeal Deadline. TheDebtor disagreed. So, on October 2, 2025, the Debtorappealed the Order Denying Motion to Alter/Amend/Correct to the United States District Court for theDistrict of Colorado.15 But, at this stage, the Trusteeand Trustee's Counsel have been dismissed from thisAdversary Proceeding.3. Status of Claims Against Liberty Mutual.*3 All of which brings us to the current issue.Given that the Court already dismissed the Trusteeand the Trustee's Counsel as Defendants, the Courtissued an “Order to Show Cause” (the “Order toShow Cause”)16 directed to whether this AdversaryProceeding could proceed as against Liberty Mutual.In the Order to Show Cause, the Court stated:In the introduction to the Complaint, the Plaintiffstated:This is an adversary proceeding brought pursuantto Fed. R. Civ. P. 7001 to recover damagesagainst the Trustee's bond provided by LibertyMutual Insurance Company for misconduct andmismanagement by the Trustee, Jeanne Y. Jagow.(Compl. 1.) In the Complaint, the Plaintiffasserted that the Trustee had “consistently failed toperform her fiduciary duties resulting in significantfinancial losses and emotional distress to thePlaintiff.” She asserted six “claims for relief” in theComplaint, including: “Breach of Fiduciary Dutyby the Trustee”; “Negligence [by the Trustee]”;“Unauthorized Practice of Law by Mr. Miller[Trustee's Counsel]”; “Intentional Infliction ofEmotional Distress [by the Trustee]”; “Invasion ofPrivacy [by the Trustee]”; and “Extortion [by theTrustee].” None of the claims for relief asserted bythe Plaintiff appear to be directed to the BondingCompany [Liberty Mutual].On September 5, 2024, the Court issued Summonsesto the Defendants (Docket No. 5). That same day,the Plaintiff filed “Plaintiff's Notice of Serviceand Request for Continuance” (Docket No. 7)wherein, among other things, the Plaintiff stated:“The Summons and Complaint in this adversaryproceeding have been served on the Trustee andMr. Miller via certified mail. Proof of service isattached as Exhibit A.” Exhibit A was a FedExreceipt showing 2-day delivery via FedEx to theTrustee and Mr. Miller. The receipt also showeddelivery as follows:Tabular or graphical material not displayable at thistime.
In re: SHERRY ANN MCGANN, Debtor. SHERRY ANN MCGANN,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4The Court assumes, but does not know, that thisportion of the receipt was offered to show serviceupon the Bonding Company [Liberty Mutual].On October 7, 2024, the Trustee filed “Jeanne Y.Jagow's Motion to Dismiss with Prejudice Plaintiff'sAmended [Bankr. ECF No. 490 Complaint forDamages Against Trustee's Bond” (Docket No. 17,the “Motion to Dismiss”) in which she movedfor dismissal of all claims in the Complaint withprejudice pursuant to Fed. R. Civ. P. 12(b)(6). Thenext day, October 8, 2024, Mr. Miller filed a Joinder(Docket No. 20, the “Joinder”) in which he joinedin the Motion to Dismiss and requested dismissal ofthe Adversary Proceeding with prejudice.On October 23, 2024, the Court dismissed all claimsagainst the Trustee and Trustee's Counsel. (DocketNo. 21.) On November 12, 2024, the Plaintiff filedan “Amended Motion Requesting (I) Set Aside ofDismissal of Plaintiff's Complaint; (II) Leave toAmend Complaint; (III) Demand for Jury Trial;and (IV) Hearing on this Motion” (Docket No.27, the “Amended Set Aside Motion”). For thereasons set forth in the “Order on Motion to SetAside Dismissal of Adversary Complaint, for Leaveto Amend Complaint, and for Jury Trial” (DocketNo. 67), the Court on June 23, 2025, denied thePlaintiff's request to set aside the order dismissingthe claims against the Trustee and Trustee's Counsel.While the litigation related to the Amended SetAside Motion was pending, the Plaintiff tookno action to prosecute her claims against theBonding Company [Liberty Mutual], such as filinga motion for entry of default or motion for entryof default judgment against the Bonding Company[Liberty Mutual] pursuant to Fed. R. Bankr. P. 7055and L.B.R. 7055-1. As such, the claims againstthe Bonding Company [Liberty Mutual] remainpending. Therefore, and in order to ensure that thecase against the Bonding Company [Liberty Mutual]moves forward or is dismissed, as appropriate, theCourt hereby*4 ORDERS that on or before August 4, 2025, thePlaintiff shall take appropriate action to prosecuteits claims against the Bonding Company [LibertyMutual] or shall file a response showing causein writing why the claims against the BondingCompany should not be dismissed, failing whichthe Court will enter an order dismissing suchclaims without further notice to the Plaintiff.17The Debtor timely responded and submitted“Plaintiff's Response to Order to Show Cause (Doc.#75) — Claim Against Bond — Declaratory Relief”(the “OSC Response”).18 The Debtor also fileda Certificate of Service showing that the OSCResponse was sent by mail to “Liberty MutualInsurance Company c/o Nina M. Durante, ClaimsRepresentative, 1001 4th Avenue, Seattle, WA 98154.”The Debtor argued that service of legal process onLiberty Mutual was proper and stated:5. On September 13, 2024, Plaintiff served LibertyMutual Insurance Company via FedEx 2-daydelivery addressed to its claim representative, NinaM. Durante, at its Seattle office. Id. (p.2 dkt. #75.)6. The package was signed for at 11:52 by S.Kniper. A copy of the signed FedEx delivery receiptis attached to the accompanying Declaration ofService as (Exhibit A).7. The service satisfies the requirements of Fed. R.Bankr. P. 7004(b)(3) for service upon a corporateentity.19Based on the foregoing, the Debtor asked for the Courtto “enter default judgment pursuant to Fed. R. Bankr.P. 7055 and Fed. R. Civ. P. 55(b).”20 Similarly, in otherpassages of the OSC Response, the Debtor also stated:• “Liberty Mutual's failure to respond warrants entryof default judgment”;• “Liberty Mutual's failure to respond to theAmended Complaint — despite clear allegationsof misconduct within the Trustee's fiduciaryscope under 11 U.S.C. § 704 — permits the Courtto enter default judgment now ... especially wherethe surety has not appeared to defend.”• “To dismiss Liberty Mutual at this stage —despite their default and before resolution ofthe Plaintiff's ongoing appellate efforts — wouldirreparably prejudice Plaintiff's bond rights. Entryof default judgment is procedurally authorizedunder Fed. R. Bankr. P. 7055 and supported
In re: SHERRY ANN MCGANN, Debtor. SHERRY ANN MCGANN,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5by case law holding that surety liability mayattach upon well-pleaded allegations where thesurety fails to respond. In re Smith, 582 B.R.1, 10 (Bankr. D.D.C. 2018).21 Plaintiff thereforerespectfully urges the Court to discharge theOSC and enter default judgment against LibertyMutual without further delay.”22Although the Debtor did not seem to distinguishbetween the entry of default and the entry of defaultjudgment in the OSC Response, the OSC Responseis best read, liberally, as both a motion for theentry of default and a motion for default judgmentagainst Liberty Mutual.4. Other Subsequent Events.The same day that the Debtor filed her OSC Response(July 28, 2025), the Debtor also filed an “AmendedClaim Against Bond — Declaratory Relief” (the“Amended Claim”).23 In the body of the AmendedClaim, the Debtor stated that “she amends herComplaint solely as to the remaining defendant,Liberty Mutual Insurance Company.”24 The Debtorpurported in the Amended Claim to state a declaratoryrelief claim against Liberty Mutual and asked thatthe Court “enter judgment against Liberty MutualInsurance Company for damages caused by TrusteeJeanne Y. Jagow's misconduct, in the amount of $6.3million ... [and] [d]eclare that Liberty Mutual remainsliable under the Trustee's bond pursuant to 11 U.S.C.§ 322 and Fed. R. Bankr. P. 9025 ....”25 In any event,the Amended Claim contains a Certificate of Serviceshowing that it was sent by “FedEx” to “LibertyMutual Insurance Company c/o Nina M. Durante,Claims Representative, 1001 4th Avenue, Seattle, WA98154.” So, perhaps, the Amended Claim is instead aSecond Amended Complaint. And, the Debtor assertedthat she could file the Amended Claim as of right underFed. R. Civ. P. 15(a)(1)(B).26*5 After the Amended Claim, on August 22, 2025,the Trustee filed a “Motion to Dismiss with PrejudiceBond Surety Liberty Mutual Insurance Company”(the “Second Motion to Dismiss”).27 The SecondMotion to Dismiss is quite peculiar because the Trustee(who already has been dismissed from the AdversaryProceeding), filed a request to dismiss a different party:Liberty Mutual. The Court harbors some doubts aboutthe propriety of the already-dismissed Trustee seekingto dismiss another party.The Debtor apparently shared the same thoughts. So,on September 2, 2025, she filed “Plaintiff's Motionto Strike Unauthorized Filing by Former Defendant,Opposition to Trustee's Intervention in Doc #83, andRequest for Sanctions” (the “Motion to Strike”).28 Inthe Motion to Strike, the Debtor requested that theCourt strike or denying the Second Motion to Dismissfiled by the Trustee. The Debtor also asserted that“Plaintiff has met all requirements under Fed. R. Civ.P. 55 and Fed. R. Bankr. P. 7055. Entry of default isnow ripe.”29 In any event, after the Second Motionto Dismiss and Motion to Strike, the Debtor and theTrustee submitted a plethora of additional filings, noneof which are particularly germane to the issue ofLiberty Mutual's alleged default.30IV. Legal Analysis.Although there have been many filings in thisAdversary Proceeding (some of which are stillpending), the Court focuses on the role of theremaining Defendant: Liberty Mutual. The Courtconstrues the OSC Response as both a motion forthe entry or default and a motion default judgmentagainst Liberty Mutual.A. The Procedural Framework for Entry of Defaultand Default Judgment.Fed. R. Civ. P. 55, which is made applicable to theseproceedings by Fed. R. Bankr. P. 7055, provides, inrelevant part:(a) Entering a Default. When a party against whom ajudgment for affirmative relief is sought has failedto plead or otherwise defend, and that failure isshown by affidavit or otherwise, the clerk mustenter the party's default.(b) Entering a Default Judgment.(1) By the Clerk. If the plaintiff's claim is for asum certain or a sum that can be made certainby computation, the clerk — on the plaintiff'srequest, with an affidavit showing the amount
In re: SHERRY ANN MCGANN, Debtor. SHERRY ANN MCGANN,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6due — must enter judgment for that amountand costs against a defendant who has beendefaulted for not appearing and who is neithera minor nor an incompetent person.(2) By the Court. In all other cases, the party mustapply to the court for a default judgment ....If the party against whom a default judgmentis sought has appeared personally or by arepresentative, that party or its representativemust be served with written notice of theapplication at least 7 days before the hearing.The court may conduct hearings or makereferrals – preserving any federal statutoryright to a jury trial – when, to enter or effectuatejudgment, it needs to:(A) conduct an accounting;(B) determine the amount of damages;(C)establish the truth of any allegation byevidence; or(D)investigate any other matter.(c) Setting Aside a Default or a Default Judgment.The court may set aside an entry of default forgood cause, and it may set aside a final defaultjudgment under Rule 60(b).L.B.R. 7055-1 supplements Fed. R. Civ. P. 55 inAdversary Proceedings in this District and states, inrelevant part:(a) Clerk's Entry of Default. A party seeking Clerk'sentry of default pursuant to Fed. R. Civ. P. 55(a)must file a motion in accordance with L.B.R.9013-1 and verify by affidavit or otherwisepursuant to 28 U.S.C. § 1746 the following:*6 (1) the party against whom default is soughthas been properly served with a complaint andsummons, including the date of the issuanceof the summons and the date of service of thecomplaint and summons;(2) the party against whom default is sought hasfailed to plead or otherwise defend within theallowed time;(3) the party against whom default is soughthas not requested or has not been granted anextension of time to plead or otherwise defend;and(4) a motion for Clerk's entry of default may notbe combined with a motion for entry of defaultjudgment.(b) Default Judgment After Entry of Default. Aparty seeking entry of a default judgment pursuantto Fed. R. Civ. P. 55(b) must file a motion inaccordance with L.B.R. 9013-1 containing thefollowing:(1) request for entry of default judgment;(2) affidavit, executed by an individual withpersonal knowledge, setting forth sufficientfactual support for each element of each claimon which judgment is requested. In casesinvolving individuals, the supporting affidavitmust allege that the defendant is not an infantor incompetent person, unless represented inthe action by a general guardian, committee,conservator, or other such representative whohas appeared in the action;(3) in cases involving individuals, the SCRAaffidavit required by L.B.R. 4002-3;(4) if appropriate, documentary evidence tosupport the allegations in the affidavit (attachedas exhibits);(5) proposed form of order approving the motion;and(6) proposed form of judgment.(c) Proof Hearing. The Court will advise the partyseeking entry of default judgment of the time anddate of a proof hearing, if required.(d) Service. A motion for entry of default and amotion for default judgment must be served onthe party against whom relief is sought.Chief United States District Judge Brimmer set forth asuccinct summary of the default process in State Res.
In re: SHERRY ANN MCGANN, Debtor. SHERRY ANN MCGANN,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.7Corp. v. Nature's Way Dairy LLC, 2010 WL 4510902,at *1 (D. Colo. Nov. 2, 2010):In order to obtain a judgment by default, a party mustfollow the two-step process described in Fed. R. Civ.P. 55: first, he or she must seek an entry of defaultfrom the Clerk of the Court under Fed. R. 55(a);second, after default has been entered by the Clerk,the party must seek default judgment according tothe strictures of Rule 55(b).... Failure to successfullycomplete the first step of entry of default necessarilyprecludes the granting of a default judgment in steptwo.Id. (citations omitted); see also Schmidt v. Suschinsky,2025 WL 50289, at *1 (D. Colo. Jan. 8, 2025)(describing two-step process starting with entry ofdefault, followed by default judgment); Williams v.Smithson, 57 F.3d 1081, 2010 WL 4510902, at*1(Table) (10th Cir. 1995) (unpublished) (same).The Debtor did not comply with Fed. R. Civ. P. 55,Fed. R. Bankr. P. 7055, and L.B.R. 7055-1 in theOSC Response. Instead, in the OSC Response (nota separate motion), the Debtor embedded multiplerequests for the entry of “default judgment” againstLiberty Mutual. Notably, the Debtor did not follow thefirst step of the two-step process: separately submittinga motion for the entry of default under Fed. R. Civ.P. 55(a) requesting the entry of default by the Clerk.The Debtor also did not identify the date of issuanceof the summons in violation of L.B.R. 7055-1(a)(1).Although the Debtor did provide an affidavit, theaffidavit did not set forth sufficient factual supportfor each element of each claim on which judgmentis requested as required by L.B.R. 7055-1(b)(2).Per L.B.R. 7055-1(b)(4), the Debtor did not submitdocumentary evidence to support the allegations in theaffidavit. And, the Debtor did not submit a form ofjudgment as mandated by L.B.R. 7055-1(b)(6).*7 The foregoing deficiencies by the Debtor havecreated confusion. By not expressly asking for theentry of default by the Clerk in a separate motionunder Fed. R. Civ. P. 55(a), the Debtor has seeminglyexcluded the Clerk from the process. (And, based onthe OSC Response, the Clerk may not even realizethat the Debtor presumably wants an entry of default.)However, the Court recognizes that the Debtor isproceeding pro se and may not have been aware ofthe two-step process. State Res., 2010 WL 4510902,at *1. Accordingly, the Court liberally construes theOSC Response as both a motion for the entry of defaultunder Fed. R. Civ. P. 55(a) and a motion for the entryof default judgment under Fed. R. Civ. P. 55(b).Whilst the first step (entry of default under Fed. R.Civ. P. 55(a)) typically is addressed by the Clerk, theCourt elects to adjudicate both the Debtor's construedrequests for entry of default and for default judgmentbecause of the unique circumstances and confusioncaused by the OSC Response. After all, the Court bearsthe ultimate responsibility to assess the propriety ofthe entry of default before entering default judgment.See USA v. Welch, 2012 WL 4097737 (D. Colo.Sept. 17, 2012) (examining propriety of entry ofdefault by clerk upon review of motion for defaultjudgment and striking (or, effectively, vacating) entryof default for improper service of process); Schmidt,2025 WL 50289, at *4 (vacating clerk's entry of defaultfor insufficient service of process). Put another wayrecently by United States District Judge Arguello:That Rule 55(a) “gives the clerk authority to enter adefault is not a limitation on the power of the courtto do so.” ... “Although Rule 55(a) contemplates thatentry of default is a ministerial step to be performedby the clerk of the court,” a district court maintainsinherent power to exercise discretion in determiningwhether to enter a default ....Mot. Pro, Inc. v. Vevor, Inc., 2023 WL 2787988, at* 3 (D. Colo. Apr. 5, 2023) (citations omitted). Seealso; Cox v. Dodd, 2019 WL 6496605, at *1 (D.Colo. Dec. 3, 2019) (same). The entry of default isimportant because, when a defendant who has beenproperly served with legal process fails to answeror otherwise appear in response to a complaint, theallegations, other than ones relating to the amount ofdamages, are deemed admitted. Fed. R. Civ. P. 8(b)(6) and Fed. R. Bankr. P. 7008. See Burlington N.R.R.Co. v. Huddleston, 94 F.3d 1413, 1415 (10th Cir. 1996)(“By failing to submit an answer or other pleadingdenying the factual allegations of Plaintiff's complaint,Defendant admitted those allegations, thus placingno further burden upon Plaintiff to prove its casefactually.”); Olcott v. Del. Flood Co., 327 F.3d 1115,1125 (10th Cir. 2003) (citing Jackson v. FIE Corp.,302 F.3d 515, 525 (5th Cir. 2002) for propositionthat defendant, by his default, admits plaintiff's well-pleaded allegations of fact); Malibu Media, LLC v.Ling, 80 F. Supp. 3d 1231, 1239 (D. Colo. 2015) (same,
In re: SHERRY ANN MCGANN, Debtor. SHERRY ANN MCGANN,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.8citing Olcott and Jackson); Doe v. Hofstetter, 2012 WL2319052, at *2 (D. Colo. Jun. 13, 2012). Consequently,“[a]fter an entry of default, a defendant cannot defenda claim on the merits.” Malibu Media, 80 F. Supp. 3d at1239. See also Hofstetter, at *1 (same, quoting Olcott,327 F.3d at 1125 n.11).B. The Debtor Did Not Establish that DefaultShould be Entered Under Fed. R. Civ. P. 55(a).1. The Requirement For Valid Service of ProcessBefore Entry of Default.The key issue with respect to the entry of defaultunder Fed. R. Civ. P. 55(a) is whether the defendantwas correctly served with legal process. Stated slightlydifferently: “Before entry of default, the Court mustfirst determine whether Defendant was properlyserved.” Mot. Pro, 2023 WL 2787988, at *3. See alsoTague v. Mind Rocket, LLC, 2020 WL 6710576, at*2 (D. Colo. Nov. 16, 2022) (same). And, of course,it follows that the Court also cannot enter defaultjudgment without a showing of valid legal service.*8 The requirement of proper legal service on thedefendant implicates the Court's jurisdiction. Thatis because “[b]efore a federal court may exercisepersonal jurisdiction over a defendant, the proceduralrequirement of service of summons must be satisfied.”Omni Cap. Int'l, Ltd. v. Rudolf Wolff & Co., 484U.S. 97, 104 (1987). See also Hukill v. Okla. NativeAm. Domestic Violence Coal., 542 F.3d 794 (10thCir. 2008) (reversing district court's refusal to setaside a default judgment due to ineffective serviceof summons and complaint); Okla. Radio Assocs. v.FDIC, 969 F.2d 940, 943 (10th Cir. 1992) (“[S]erviceof process provides the mechanism by which acourt having venue and jurisdiction over the subjectmatter of an action asserts jurisdiction over the partyserved.”).In this Adversary Proceeding, the Debtor assertedthat she correctly served process on Liberty Mutualunder Fed. R. Bankr. P. 7004(b)(3). More specifically,she stated: “This service [on Liberty Mutual] satisfiesthe requirements of Fed. R. Bankr. P. 7004(b)(3) forservice upon a corporate entity.”31 Fed. R. Bankr. P.7004(b)(3) provides:Service by Mail as an Alternative. Except asprovided in subdivision (h) [relating to insureddepository institutions], in addition to the methodsof service authorized by Fed. R. Civ. P. 4(e)-(j), acopy of a summons and complaint may be served byfirst-class mail, postage prepaid, within the UnitedStates on ... (3) a domestic or foreign corporation,or a partnership or other unincorporated association— by mailing the copy: (A) to an officer, amanaging or general agent, or an agent authorizedby appointment or by law to receive service; and (B)also to the defendant if a statute authorizes an agentto receive service and the statute so requires.(emphasis added). Thus, Fed. R. Bankr. P. 7004(b)(3)(A) provides for a simpler and more streamlinedmethod of service on a corporate entity than Fed. R.Civ. P. 4(h), which typically requires “delivering (i.e. aform of personal service) a copy of the summons andof the complaint “to an officer, a managing or generalagent, or any agent authorized by appointment or bylaw to receive service ....”The Federal Rules of Bankruptcy Procedure and theFederal Rules of Civil Procedure also establish timingrequirements. Per Fed. R. Bankr. P. 7004(e)(1), thesummons and complaint “[i]f served my mail” “mustbe deposited in the mail within 7 days and the summonsis issued.” Thus, the requirement in L.B.R. 7055-1(a)(1) that a party seeking entry of default must identify“the date of the issuance of the summons and the dateof service of the complaint and summons.” And, then,service of legal process generally must be completedwithin 90 days after the complaint is filed. Fed. R. Civ.P. 4(m), incorporated by Fed. R. Bankr. P. 7004(a)(1)provides:Time Limit for Service. If a defendant is not servedwithin 90 days after the complaint is filed, thecourt — on motion or on its own after notice tothe plaintiff — must dismiss the action withoutprejudice against that defendant or order that servicebe made within a specified time. But if the plaintiffshows good cause for the failure, the court mustextend the time for service for an appropriate period.This subdivision (m) does not apply to service in aforeign country under Rule 4(f), 4(h)(2), or 4(j)(1),or to service of a notice under Rule 71.1(d)(3)(A).
In re: SHERRY ANN MCGANN, Debtor. SHERRY ANN MCGANN,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.92. The Debtor's Efforts to Serve Legal Process onLiberty Mutual.The Debtor failed to establish proper service oflegal process on Liberty Mutual per the foregoingrequirements. Factually, the record shows thefollowing:*9 • The Debtor commenced this AdversaryProceeding by filing the Amended Complaint onAugust 6, 2024.32• For several weeks, the Debtor did nothingto prosecute this Adversary Proceeding. Forexample, the Debtor did not request or obtainsummonses to serve on the Defendants. So, theCourt issued an “Order to Show Cause,” why thisAdversary Proceeding should not be dismissed.33• In response, the Debtor requested and the Clerkissued a Summons directed to Liberty Mutual onSeptember 5, 2024.34• On September 5, 2024, the Debtor filed a “Noticeof Service” (the “Notice of Service”)35 whichstated that “[t]he Summons and Complaint in thisadversary proceeding have been served on theTrustee and Mr. Miller via certified mail. Proofof service is attached as Exhibit A.” Notably,the Notice of Service did not assert that theDebtor had served Liberty Mutual. Furthermore,the Notice of Service failed to comply withFed. R. Civ. P. 4(l), incorporated by Fed. R.Civ. P. 7004(a)(1), which requires that “proof [ofservice] must be by the server's affidavit.” TheNotice of Service did not include an affidavit.However, appended to the Notice of Service wasa form of unverified receipt (the “Receipt”) asfollows:Tabular or graphical material not displayable at thistime.The receipt did not reference Liberty Mutual, didnot state the day the package was sent, and wasfor delivery by Federal Express, not by first-classU.S. mail.• After September 5, 2024, the Debtor did nothingto prosecute her claims against Liberty Mutual.So, ten months later, on July 21, 2025, the Courtissued the Order to Show Cause (reproducedabove).36 To summarize, the Court noted thatthere was no proof of service on Liberty Mutualin the Notice of Service and observed that theDebtor had not prosecuted her claims againstLiberty Mutual in any way, including by filing amotion for entry of default or motion for entry ofdefault judgment. The Court ordered the Debtorto show cause why her claims against LibertyMutual should not be dismissed.• After the Order to Show Cause, on July 28,2025, the Debtor filed the OSC Reply.37 TheOSC Reply was presented about a year after thecommencement of this Adversary Proceeding. Inthe OSC Response, the Debtor argued that serviceof legal process on Liberty Mutual was proper andstated:5. On September 13, 2024, Plaintiff servedLiberty Mutual Insurance Company viaFedEx 2-day delivery addressed to its claimrepresentative, Nina M. Durante, at its Seattleoffice. Id. (p.2 dkt. #75.)6. The package was signed for at 11:52 by S.Kniper. A copy of the signed FedEx deliveryreceipt is attached to the accompanyingDeclaration of Service as (Exhibit A).7. The service satisfies the requirements ofFed. R. Bankr. P. 7004(b)(3) for service upon acorporate entity.38Based on the foregoing, the Debtor asked for theCourt to “enter default judgment pursuant to Fed.R. Bankr. P. 7055 and Fed. R. Civ. P. 55(b).”39• The Debtor appended a “Declaration of SherryAnn McGann Regarding Service of Processon Liberty Mutual Insurance Company” (the“McGann Declaration”) executed on July 25,2025 and stated:*10 I, Sherry Ann McGann, declare underpenalty of perjury under the laws of the UnitedStates that the following is true and correct:
In re: SHERRY ANN MCGANN, Debtor. SHERRY ANN MCGANN,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.101. I am the Plaintiff in this adversaryproceeding.2. On September 9, 2024, I served theSummons and Complaint in AdversaryProceeding No. 24-01179 on Liberty MutualInsurance Company via FedEx 2-Daydelivery addressed to:Nina M. Durante, Claims Representative1001 4th AvenueSeattle, WA 981543. FedEx tracking confirms the delivery wascompleted on September 13, 2024 at 11:52AM, and signed for by S. Kniper.(EXH A)4. A copy of the delivery confirmation isattached hereto as Exhibit A.5. Nina M. Durante was identified in courtrecords as the claims representative for LibertyMutual and is believed to be authorized toaccept service on behalf of the company.6. This declaration is provided in supportof Plaintiff's Response to the Court's Orderto Show Cause (Doc #75) filed concurrentlyherewith.3. The Debtor Did Not Establish Proper LegalService on Liberty Mutual.Accepting all of what the Debtor has presented, theDebtor has not shown proper legal service of processon Liberty Mutual which would allow the Court toenter default under Fed. R. Civ. P. 55(a). The Debtorrelies exclusively on Fed. R. Bankr. P. 7004(b)(3),which provides, in relevant part, that service on adomestic corporation in the United States must be (byfirst-class mail) to: “an officer, a managing or generalagent, or an agent authorized by appointment or by lawto receive service ....” But the Receipt shows that theDebtor sent a summons and the Amended Complaintin September 2024 in a package addressed to:Nina M. DuranteClaims1001 4th ave.Seattle, WA 98154The address did not even identify Liberty Mutualand the text of the address does not show that itwas to “an officer, a managing or general agent, oran agent authorized by appointment or by law toreceive service.” The capacity of “Nina M. Durante”is listed vaguely as “Claims.” In the OSC Responseand Declaration, the Debtor added a new twist: NinaM. Duarte is a “Claim Representative.” Further, theDebtor states that “she believes [Nina M. Duarte] tobe authorized to accept service on behalf of [LibertyMutual.” Notably, the Debtor has not identified anyfactual or legal basis for her belief why an alleged“Claims Representative” is the proper person to acceptlegal service for Liberty Mutual.The address for the package sent by the Debtordid not identify Nina M. Durante as an “officer”of Liberty Mutual. The term “officer” has a well-accepted meaning in the context of corporate entities.“Broadly speaking, a corporate officer is one conferredwith the authority to operate and control the day-to-day operations of the business such as that held bythe president, vice-president, secretary or treasurer.”Saucier v. Capitol One (In re Saucier), 366 B.R. 780,784 (Bankr. N.D. Ohio). See also Bryan A. Garner,Black’s Law Dictionary at 1257 (10th ed. ThompsonReuters 2014) (“In corporate law, the term [officer]refers esp. to a person elected or appointed by theboard of directors to manage the daily operations ofa corporation such as a CEO, president, secretaryor treasurer.”). The Debtor has not shown that NinaM. Durante, as a “claims representative,” qualifiedas an “officer” of Liberty Mutual at the time of thealleged service of process. See Saucier, 366 B.R. at 784(“office manager” is not an “officer”). Notably, in theOSC Response and Declaration, the Debtor does notseem to contend that Nina M. Durante is an ”officer”of Liberty Mutual.*11 The address for the package sent by the Debtordid not identify Nina M. Durante as a “managing orgeneral agent” of Liberty Mutual either. “It is notjust any agent who qualifies as a recipient of serviceon behalf of a corporation. Rule 7004(b)(3) specifiesthat the agent must be a managing or general agentor an agent specifically designated for such purpose
In re: SHERRY ANN MCGANN, Debtor. SHERRY ANN MCGANN,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.11by appointment or by law .... Service on any othercorporate employee is not sufficient.” In re Assoc. ofVolleyball Pros., 256 B.R. 313, 317 (Bankr. C.D. Cal.2000). “A managing agent is one authorized to transactall business of a particular kind at a particular placeand must be vested with powers of discretion ratherthan being under direct superior control.” BridgeportMusic, Inc. v. Rhyme Syndicate Music, 376 F.3d 615,624 (6th Cir. 2004). See also Rentas v. Autoridadde Acueductos y Alcantarillados (In re PMC Mktg.Corp.), 2015 WL 4594503, at *2 (Bankr. D.P.R.July 30, 2015) (same, citing Bridgeport). Similarly, ageneral manager or general agent “is often an agentof a corporation of sufficient character and rank toestablish and ensure that a corporation will be apprisedof the service made.” Id. The Debtor has not shownthat Nina M Durante as a “claims representative”qualified as a “managing agent” or “general agent” ofLiberty Mutual at the time of the alleged service ofprocess. Saucier, 366 at 784 (“office manager” is nota managing or general agent). Notably, in the OSCResponse and Declaration, the Debtor does not seem tocontend that Nina M. Duarte is a ”managing or generalagent” of Liberty Mutual.The final category of Fed. R. Bankr. P. 7004(b)(3) service of legal process is an “agent authorizedby appointment or by law to receive service.” Inthe Declaration, the Debtor speculates that Nina A.Durante might be “authorized to accepted service.”This category typically covers registered agents forservice of process under State law. However, theDebtor's belief of “authorization” is untethered to anyfactual or legal basis. For example, the Debtor didnot come forward to show that Nina A. Durante waslisted as a registered agent for service of process onLiberty Mutual in either Colorado or Washington at thetime of the purported service of process. Ultimately,the Debtor failed to show Nina A. Durante was“authorized” to accept service of legal process onLiberty Mutual. And, the Debtor bears the burden onthe issue. Volleyball Pros., 256 B.R. at 317.Since the Debtor has not shown that she effectedvalid service of legal process on Liberty Mutual inSeptember 2024, the Court has no personal jurisdictionover Liberty Mutual in this Adversary Proceeding.Omni Cap. Int'l, 484 U.S. 104; Hukill, 542 F.3d 794;Okla. Radio Assocs., 969 F.2d at 943; Schmidt, 2025WL 50289, at *4 (“Because Plaintiff has not shownthat Mr. Suschinsky was properly served with a copyof the summons and Complaint, this Court cannot— without more — exercise personal jurisdictionover Defendant.”). Therefore,, the Court must denyentry of default against Liberty Mutual. See Cox v.Armstong, 2024 WL 5002617, at *3 (10th Cir. Dec.6, 2024) (“[D]efendants were not properly served. Asdefendants had no duty to answer until properly served,entry of default prior to service would have beenimproper.”); Welch, 2012 WL 4097737, at *2 (notingthat “[t]here is nothing in the record to indicate thatMs. Nelson was a proper agent for service of processon Defendant CIT; in other words, the record is devoidof evidence demonstrating that she is an officer or anappropriate agent of Defendant CIT on whom properservice could be made” and denying sufficiency ofservice on Ms. Nelson, a “legal assistant” as result).C. The Debtor Did Not Establish that the CourtShould Enter Default Judgment.A precondition to the entry of a default judgment isthe entry of default. Since the Court has determinedthat the Debtor did not meet her burden to show properservice of process on Liberty Mutual, the Court cannotenter default judgment either. Vanderwal v. Trujillo,2022 WL 2512820, at *2 (D. Colo. June 15, 2022)(since default had not entered, motion for defaultjudgment was premature and must be denied); StateRes., 2010 WL 4510902, at *1 (“Failure to successfullycomplete the first step of obtaining an entry of defaultnecessarily precludes the granting of default judgmentin step two.”).V. Conclusion and Order.*12 For the reasons set forth above, the CourtDENIES entry of default and entry of default judgmentagainst Liberty Mutual and all other relief requested bythe Debtor in the OSC Response.Based upon the foregoing, the Court has determinedthat it likely should dismiss Liberty Mutual withoutprejudice pursuant to Fed. R. Civ. P. 4(m), asincorporated by Fed. R. Bankr. P. 7004(a)(1), becausethe Debtor has not properly effected service of process
In re: SHERRY ANN MCGANN, Debtor. SHERRY ANN MCGANN,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12on Liberty Mutual within 90 days after the AmendedComplaint was filed. However, Fed. R. Civ. P. 4(m)indicates that the Court may dismiss “on its own afternotice to the plaintiff.” The Court believes that the twoOrders to Show Cause already issued by the Courtin this Adversary Proceeding likely satisfy the noticerequirement of Fed. R. Civ. P. 4(m). However, in anabundance of caution, and to protect the due processrights of the Debtor, the Court furtherORDERS that if the Debtor contests dismissal withoutprejudice of claims against Liberty Mutual, then, theDebtor must submit a motion, asking the Court torefrain from such dismissal without prejudice underFed. R. Civ. P. 4(m) by no later than November10, 2025. Any such motion must be supported bycitation to facts, case law and rules authority.40 In theabsence of a timely response, the Court will dismissthe Debtor's claims against Liberty Mutual withoutprejudice promptly thereafter.DATED this 27th day of October, 2025.BY THE COURT:All CitationsSlip Copy, 2025 WL 3028987Footnotes1All references to the “Bankruptcy Code” are to the United States Bankruptcy Code, 11 U.S.C. § 101 et seq.Unless otherwise indicated, all references to “Section” are to sections of the Bankruptcy Code.2Docket No. 2. The Court uses the convention “Docket No. ” to refer to documents filed in the CM/ECF systemin this Adversary Proceeding: McGann v. Jagow et al. (In re McGann), Adv. Pro. No. 24-1179 (Bankr. D.Colo.). The Court uses the convention “Main Case Docket No.” to refer to documents filed in the Debtor'smain bankruptcy case: In re Sherry Ann McGann, Bankruptcy Case No. 20-18118. Here, though the Debtortitled the document “Amended Complaint,” the Complaint was the first pleading filed by the Debtor and didnot amend an earlier-filed document.3Id. at 6.4Docket No. 17.5Docket Nos. 18 and 20.6Docket No. 21.7Docket No. 27.8Docket No. 27 at 7.9Docket No. 67.10The Court makes no definitive determination whether the Order Denying Reconsideration of Dismissal Orderwas final or interlocutory. See Fed. R. Bankr. P. 54(a) and (b). Such issue may affect the Plaintiff's abilityto appeal and the timing thereof. Nevertheless, the Plaintiff appears to contend that the Order DenyingReconsideration of Dismissal Order was final and appealable with an appellate deadline of July 7, 2025.11Docket No. 77.12Docket No. 80.13Docket No. 84.14Docket No. 97.
In re: SHERRY ANN MCGANN, Debtor. SHERRY ANN MCGANN,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.1315Docket No. 98.16Docket No. 75.17Docket No. 75 (footnotes omitted).18Docket No. 79.19Id. at 2 (bolding omitted).20Id.21In re Smith, 582 B.R. 1, 10 (Bankr. D.D.C. 2018) is fake case cited by the Debtor repeatedly over the lastseveral years. It does not exist. The case at that citation, In re Lockhart, 582 B.R. 1 (Bankr. E.D. Mich. 2018)has nothing to do with the proposition advanced by the Debtor.22Id at 3-5.23Docket No. 78.24Id. at 1.25Id. at 4.26Id. at 1. If the Amended Claim is effectively a Second Amended Complaint, it is not certain that such pleadingcould be filed as of right without consent or court approval because the Trustee filed the Motion to Dismissunder Fed. R. Civ. P. 12(b) on October 7, 2024. Compare Trujillo v. City of Newton, Kansas, 2013 WL535747, at *1 (D. Kan. Feb 12, 2013) (holding that 21-day period under Fed. R. Civ. P. 15(a)(1)(B) foramendment as of right is initiated as to all defendants after the first responsive pleading or Fed. R. Civ. P.12(b) motion is filed, irrespective of later responsive pleadings or motions by other defendants); with Nicholsv. Livingston Cnty., 2019 WL 3935998, at *4 (W.D.N.Y. August 20, 2019) (“When a plaintiff seeks to amendhis or her complaint against multiple defendants, each defendant is treated separately under Rule 15 forpurposes of amending as of right.”). The Court declines to decide the timeliness of the Amended Claim atthis time.27Docket No. 83.28Docket No. 87.29Id. at 3.30See Docket Nos. 84-86, 88, 90-92, 94, 95, and 99.31Docket No. 79 at 2.32Docket No. 1.33Docket No. 3.34Docket No. 5.35Docket Nos. 7 and 8.36Docket No. 75.37Docket No. 79.
In re: SHERRY ANN MCGANN, Debtor. SHERRY ANN MCGANN,..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.1438Id. at 2 (bolding omitted). The Debtor also stated: “Liberty Mutual's failure to respond warrants entry ofdefault judgment”; Id. at 3.39Id.40As per prior order of the Court, “with respect to all case law cited by the Debtor, the Debtor must: (1) provideboth the full case citation and a pinpoint citation, identifying by page number, the page(s) on which thematerial referenced provides support for the Debtor's position in her filing; (2) provide with the filing copiesof all cases cited in the filing, highlighted or underlined to show the passages in the cases which the Debtorclaims support her positions.” (Main Case Docket No. 752 at 3.)End of Document© 2025 Thomson Reuters. No claim to original U.S.Government Works.
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