Luxx International, LLC; and Wayde King v. Pure Water Technologies; Tasty One, LLC; Michael Kaplan; Adam Kaplan; et al.

D. Nevada

Luxx International, LLC; and Wayde King v. Pure Water Technologies; Tasty One, LLC; Michael Kaplan; Adam Kaplan; et al.

DecidedOctober 9, 2025

Docket2:23-cv-00512

StatusUnknown

This text of Luxx International, LLC; and Wayde King v. Pure Water Technologies; Tasty One, LLC; Michael Kaplan; Adam Kaplan; et al. (Luxx International, LLC; and Wayde King v. Pure Water Technologies; Tasty One, LLC; Michael Kaplan; Adam Kaplan; et al.) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Luxx International, LLC; and Wayde King v. Pure Water Technologies; Tasty One, LLC; Michael Kaplan; Adam Kaplan; et al., (D. Nev. 2025).

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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Luxx International, LLC; and Wayde Case No. 2:23-cv-00512-MMD-DJA 6 King,

7 Plaintiffs, Order and 8 v. Report and Recommendation

9 Pure Water Technologies; Tasty One, LLC; Michael Kaplan; Adam Kaplan; et al., 10 Defendants. 11 And related counterclaims. 12 13 Before the Court is Plaintiff/Counter-Defendant Luxx International, LLC’s motion to 14 extend time to retain counsel. (ECF No. 111). Also before the Court is pro se Plaintiff/Counter- 15 Defendant Wayde King’s motion to strike Defendant/Counter-Claimant Pure Water 16 Technologies’ (“PWT”) response to Luxx’s motion to extend time. (ECF No. 118). Because 17 Luxx has not shown good cause for the extension it seeks, the Court denies its motion and 18 recommends that Luxx’s claims be dismissed without prejudice and that the Clerk of Court be 19 directed to enter default against Luxx and in favor of Michael Kaplan and Adam Kaplan on the 20 Kaplans’ counterclaims against Luxx. Because King asks the Court to strike a document that is 21 not a pleading, but moves under Federal Rule of Civil Procedure 12(f), which is confined to 22 pleadings, the Court denies King’s motion to strike. 23 I. Luxx’s motion to extend time. 24 In Luxx’s motion to extend time—its third motion for an extension of time to retain 25 counsel—its representative Allyson Martin provides various reasons why Luxx has not timely 26 been able to retain counsel. She provides that Luxx “has been searching for counsel,” has 27 “contacted many lawyers,” and that she has dealt with issues in her personal life. But Martin 1 does not find that Luxx has shown good cause to extend the deadline for it to retain counsel a 2 third time. See Fed. R. Civ. P. 6(b). The Court therefore denies the motion.1 3 Because Luxx cannot proceed in this action without counsel, the Court further 4 recommends dismissing Luxx’s claims without prejudice and directing the Clerk of Court to enter 5 default against Luxx and in favor of Michael Kaplan and Adam Kaplan on the Kaplans’ 6 counterclaims against Luxx. See Reading Intern., Inc. v. Malulani Group, Ltd., 814 F.3d 1046, 7 1053 (9th Cir. 2016) (explaining that corporations must be represented by counsel); see Ramsey v. 8 Hawaii, No. 20-00215-JMS-KJM, 2020 WL 5754010, at *1 (D. Haw. Sept. 2, 2020) (explaining 9 Federal Rule of Civil Procedure 55’s two-step process for default consisting of: (1) seeking the 10 clerk’s entry of default; and (2) filing a motion for entry of default judgment); see Dr. JKL Ltd. v. 11 HPC IT Education Center, 749 F.Supp.2d 1038, 1048 (N.D. Cal. Oct. 28, 2010) (granting a 12 motion to strike an answer because a pro se litigant attempted to file it on behalf of a corporate 13 defendant); see Center Khurasan Construction Co. v. JS International, Inc., No. 2:25-cv-00191- 14 CDS-NJK, 2025 WL 2770685 (D. Nev. June 17, 2025) (dismissing a corporate plaintiff’s case for 15 failure to comply with order to retain counsel). Federal Rule of Civil Procedure 41(b) permits 16 dismissal of an action for the failure to prosecute or comply with rules or a court order. Fed. R. 17 Civ. P. 41(b). District courts also have the inherent power to impose sanctions, including default 18 and dismissal where appropriate. Thompson v. Housing Authority of City of Los Angeles, 782 19 F.2d 829, 831 (9th Cir. 1986). In considering whether to dismiss an action under Rule 41(b) or 20 enter dismissal and default sanctions using inherent authority, courts consider: (1) the public’s 21 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 22 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 23 merits; and (5) the availability of less drastic sanctions. Carey v. King, 856 F.2d 1439, 1440 (9th 24 Cir. 1998); Thompson, 782 F.2d at 831. 25

26 1 Because the Court finds that Luxx has not met its burden of showing good cause for extending 27 the deadline, the Court does not delve into the details of PWT’s response (ECF No. 112), its errata (ECF No. 113), Adam Kaplan and Michael Kaplan’s joinder (ECF No. 114), and Tasty 1 Here, because Luxx has not complied with the Court’s order to retain counsel, the Court 2 recommends dismissal of Luxx’s claims and directing the Clerk of Court to enter default against 3 Luxx and in favor of Michael Kaplan and Adam Kaplan on the Kaplans’ claims against Luxx. 4 The first factor weighs in favor of dismissal and default because the public has an interest in 5 expeditious resolution of litigation and Luxx’s failure to comply with this Court’s order impedes 6 this goal. The second factor weighs in favor of dismissal and default because the Court’s need to 7 manage its docket is thwarted by Luxx’s failure to comply with this Court’s order or to retain 8 counsel. The third factor weighs in favor of dismissal and default because a presumption of 9 injury arises from Luxx’s unreasonable delay in prosecuting and defending this action through 10 counsel. See Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor— 11 the public policy favoring disposition of cases on their merits—is greatly outweighed by the 12 factors favoring dismissal and default; there can be no disposition on the merits of Luxx’s claims 13 and Michael and Adam Kaplan’s claims against Luxx if Luxx never retains counsel. The fifth 14 factor requires the Court to consider less drastic alternatives to dismissal and default. However, 15 Courts “need not exhaust every sanction short of dismissal before finally dismissing a case, but 16 must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 17 (9th Cir. 1986). Under these facts, the Court can do no more than again order Luxx to retain 18 counsel so that it may participate in this case. Luxx was adequately informed that a corporation 19 may appear in federal court only through licensed counsel. (ECF No. 106). Because Luxx has 20 been unable or unwilling to comply, and is still without counsel, dismissal and default are 21 warranted here. 22 II. King’s motion to strike. 23 King moves under Federal Rule of Civil Procedure 12(f) to strike PWT’s response to 24 Luxx’s motion to extend time, arguing that the response contains immaterial, impertinent, and 25 scandalous matters. (ECF No. 118) (King’s motion); (ECF Nos. 112, 113) (PWT’s response and 26 errata). However, a Rule 12(f) motion to strike is limited to pleadings. See Sidney-Vinstein v. 27 A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). And King does not identify another basis for 1 the Court to strike PWT’s response. So, the Court denies King’s motion (ECF No. 118) and the 2 request for sanctions that King and Luxx make in their reply (ECF No. 124).2 3 4 ORDER 5 IT IS THEREFORE ORDERED that Luxx’s motion to extend time (ECF No. 111) is 6 denied. 7 IT IS FURTHER ORDERED that King’s motion to strike (ECF No. 118) is denied.

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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Luxx International, LLC; and Wayde Case No. 2:23-cv-00512-MMD-DJA 6 King,

7 Plaintiffs, Order and 8 v. Report and Recommendation

9 Pure Water Technologies; Tasty One, LLC; Michael Kaplan; Adam Kaplan; et al., 10 Defendants. 11 And related counterclaims. 12 13 Before the Court is Plaintiff/Counter-Defendant Luxx International, LLC’s motion to 14 extend time to retain counsel. (ECF No. 111). Also before the Court is pro se Plaintiff/Counter- 15 Defendant Wayde King’s motion to strike Defendant/Counter-Claimant Pure Water 16 Technologies’ (“PWT”) response to Luxx’s motion to extend time. (ECF No. 118). Because 17 Luxx has not shown good cause for the extension it seeks, the Court denies its motion and 18 recommends that Luxx’s claims be dismissed without prejudice and that the Clerk of Court be 19 directed to enter default against Luxx and in favor of Michael Kaplan and Adam Kaplan on the 20 Kaplans’ counterclaims against Luxx. Because King asks the Court to strike a document that is 21 not a pleading, but moves under Federal Rule of Civil Procedure 12(f), which is confined to 22 pleadings, the Court denies King’s motion to strike. 23 I. Luxx’s motion to extend time. 24 In Luxx’s motion to extend time—its third motion for an extension of time to retain 25 counsel—its representative Allyson Martin provides various reasons why Luxx has not timely 26 been able to retain counsel. She provides that Luxx “has been searching for counsel,” has 27 “contacted many lawyers,” and that she has dealt with issues in her personal life. But Martin 1 does not find that Luxx has shown good cause to extend the deadline for it to retain counsel a 2 third time. See Fed. R. Civ. P. 6(b). The Court therefore denies the motion.1 3 Because Luxx cannot proceed in this action without counsel, the Court further 4 recommends dismissing Luxx’s claims without prejudice and directing the Clerk of Court to enter 5 default against Luxx and in favor of Michael Kaplan and Adam Kaplan on the Kaplans’ 6 counterclaims against Luxx. See Reading Intern., Inc. v. Malulani Group, Ltd., 814 F.3d 1046, 7 1053 (9th Cir. 2016) (explaining that corporations must be represented by counsel); see Ramsey v. 8 Hawaii, No. 20-00215-JMS-KJM, 2020 WL 5754010, at *1 (D. Haw. Sept. 2, 2020) (explaining 9 Federal Rule of Civil Procedure 55’s two-step process for default consisting of: (1) seeking the 10 clerk’s entry of default; and (2) filing a motion for entry of default judgment); see Dr. JKL Ltd. v. 11 HPC IT Education Center, 749 F.Supp.2d 1038, 1048 (N.D. Cal. Oct. 28, 2010) (granting a 12 motion to strike an answer because a pro se litigant attempted to file it on behalf of a corporate 13 defendant); see Center Khurasan Construction Co. v. JS International, Inc., No. 2:25-cv-00191- 14 CDS-NJK, 2025 WL 2770685 (D. Nev. June 17, 2025) (dismissing a corporate plaintiff’s case for 15 failure to comply with order to retain counsel). Federal Rule of Civil Procedure 41(b) permits 16 dismissal of an action for the failure to prosecute or comply with rules or a court order. Fed. R. 17 Civ. P. 41(b). District courts also have the inherent power to impose sanctions, including default 18 and dismissal where appropriate. Thompson v. Housing Authority of City of Los Angeles, 782 19 F.2d 829, 831 (9th Cir. 1986). In considering whether to dismiss an action under Rule 41(b) or 20 enter dismissal and default sanctions using inherent authority, courts consider: (1) the public’s 21 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 22 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 23 merits; and (5) the availability of less drastic sanctions. Carey v. King, 856 F.2d 1439, 1440 (9th 24 Cir. 1998); Thompson, 782 F.2d at 831. 25

26 1 Because the Court finds that Luxx has not met its burden of showing good cause for extending 27 the deadline, the Court does not delve into the details of PWT’s response (ECF No. 112), its errata (ECF No. 113), Adam Kaplan and Michael Kaplan’s joinder (ECF No. 114), and Tasty 1 Here, because Luxx has not complied with the Court’s order to retain counsel, the Court 2 recommends dismissal of Luxx’s claims and directing the Clerk of Court to enter default against 3 Luxx and in favor of Michael Kaplan and Adam Kaplan on the Kaplans’ claims against Luxx. 4 The first factor weighs in favor of dismissal and default because the public has an interest in 5 expeditious resolution of litigation and Luxx’s failure to comply with this Court’s order impedes 6 this goal. The second factor weighs in favor of dismissal and default because the Court’s need to 7 manage its docket is thwarted by Luxx’s failure to comply with this Court’s order or to retain 8 counsel. The third factor weighs in favor of dismissal and default because a presumption of 9 injury arises from Luxx’s unreasonable delay in prosecuting and defending this action through 10 counsel. See Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor— 11 the public policy favoring disposition of cases on their merits—is greatly outweighed by the 12 factors favoring dismissal and default; there can be no disposition on the merits of Luxx’s claims 13 and Michael and Adam Kaplan’s claims against Luxx if Luxx never retains counsel. The fifth 14 factor requires the Court to consider less drastic alternatives to dismissal and default. However, 15 Courts “need not exhaust every sanction short of dismissal before finally dismissing a case, but 16 must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 17 (9th Cir. 1986). Under these facts, the Court can do no more than again order Luxx to retain 18 counsel so that it may participate in this case. Luxx was adequately informed that a corporation 19 may appear in federal court only through licensed counsel. (ECF No. 106). Because Luxx has 20 been unable or unwilling to comply, and is still without counsel, dismissal and default are 21 warranted here. 22 II. King’s motion to strike. 23 King moves under Federal Rule of Civil Procedure 12(f) to strike PWT’s response to 24 Luxx’s motion to extend time, arguing that the response contains immaterial, impertinent, and 25 scandalous matters. (ECF No. 118) (King’s motion); (ECF Nos. 112, 113) (PWT’s response and 26 errata). However, a Rule 12(f) motion to strike is limited to pleadings. See Sidney-Vinstein v. 27 A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). And King does not identify another basis for 1 the Court to strike PWT’s response. So, the Court denies King’s motion (ECF No. 118) and the 2 request for sanctions that King and Luxx make in their reply (ECF No. 124).2 3 4 ORDER 5 IT IS THEREFORE ORDERED that Luxx’s motion to extend time (ECF No. 111) is 6 denied. 7 IT IS FURTHER ORDERED that King’s motion to strike (ECF No. 118) is denied. 8 9 RECOMMENDATION 10 IT IS RECOMMENDED that Luxx’s claims be dismissed without prejudice and that the 11 Clerk of Court be directed to enter default against Luxx and in favor of Michael Kaplan and 12 Adam Kaplan on the Kaplans’ counterclaims against Luxx. 13 14 NOTICE 15 Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be 16 in writing and filed with the Clerk of the Court within fourteen (14) days after service of this 17 Notice. The Supreme Court has held that the courts of appeal may determine that an appeal has 18 been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 19 U.S. 140, 142 (1985) reh’g denied, 474 U.S. 1111 (1986). The Ninth Circuit has also held that 20 (1) failure to file objections within the specified time and (2) failure to properly address and brief 21 the objectionable issues could waive the right to appeal the District Court’s order and/or appeal 22 factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 23 24

25 2 Again, because the Court denies the motion on this basis, it does not delve into the details of the responses, joinders, and replies (ECF Nos. 122, 123, 124, 125, 126, 127). The Court notes that 26 PWT, Michael Kaplan, Adam Kaplan, Tasty One seek sanctions for having to respond to King’s 27 motion. (ECF Nos. 122, 127). But these parties provide no legal basis for their sanction request and have not separately moved for sanctions. See LR IC 2-2(b). So, the Court declines to award 1 1991); see Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983); see Miranda 2 v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012). 3 4 DATED: October 9, 2025 5 DANIEL J. ALBREGTS 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

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