Case 1:22-cv-00205-JRS-DLP Document 7 Filed 07/14/22 Page 1 of 7 PageID #: 31

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

)
DAMION REID, )
)
Plaintiff, ) No: 1:22-cv-00205-JRS-DLP
)
v. )
)
LANCE STEPHENSON, )
)
Defendant. )
)

PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE

Plaintiff Damion Reid (“Plaintiff”), by and through his undersigned counsel, respectfully

submits his response to this Court’s Order to Show Cause dated July 5, 2022 (ECF No. 6) (the

“Order”), and states as follows:

1. Plaintiff respectfully requests that the Court not dismiss the Complaint under Fed.

R. Civ. P. 41 for failure to prosecute or under Fed. R. Civ. P. 4(m) for failure to effect proper

service. Further, it is respectfully requested that the Court deem service on Defendant Lance

Stephenson (“Defendant”) to be sufficient, or in the alternative, if the Court deems service to be

inadequate, to permit Plaintiff additional time of forty-five (45) days to re-serve the Defendant.

2. This action was commenced with the filing of the Complaint on January 27, 2022

(ECF No. 1).

3. On or about December 30, 2021, prior to commencement of this action, Plaintiff’s

counsel conducted an investigation to determine the Defendant’s whereabouts. Plaintiff attempted

to locate Defendant’s address for service on Defendant, but due to Defendant’s status as a famous

professional athlete with contracts with various professional basketball teams and frequent travel,
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Plaintiff’s investigation into Defendant’s current residence was inconclusive.

4. As part of Plaintiff’s investigation, Plaintiff conducted internet searches, a “people

search” on TLOxp, property record searches in Boone County, Indiana, and an IMDBpro search

for Defendant’s agents and legal representatives.

5. According to the articles located at URL: https://www.basketball-

reference.com/players/s/stephla01.html and https://www.nba.com/stats/player/202362/career,

Defendant played with the Indiana Pacers in 2017. In 2018, he had signed with the Los Angeles

Lakers. On or about December 22, 2021, Defendant signed a ten day contract with the Atlanta

Hawks. On or about January 1, 2022, Defendant then signed a ten day contract back with the

Indiana Pacers.

6. Despite Plaintiff’s investigation, Plaintiff was unable to locate a viable alternate

address for Defendant due to the uncertainty as to which team Defendant would be playing for,

the duration of his contract, and in what state Defendant would be residing.

7. Service of process on an individual is governed by Federal Rules of Civil Procedure

4(e), which allows a party to serve an individual within a judicial district of the United States by

“delivering a copy of [the summons and of the complaint] to an agent authorized by appointment

or by law to receive service of process.” Fed. R. Civ. P. 4(e)(2)(C).

8. Plaintiff’s counsel was able to confirm Defendant’s agent as Priority Sports &

Entertainment (“Priority Sports”). See article dated August 2, 2019 located at URL:

https://prioritysports.biz/2019/08/02/lance-stephenson-signs-one-year-deal-in-china/; see also

article dated July 31, 2020 located at URL:

https://www.forbes.com/sites/adamzagoria/2020/07/31/lance-stephenson-was-99-percent-set-to-

sign-with-pacers-in-march-hopes-to-end-career-there/?sh=6bacc453849e.
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9. On February 2, 2022, service was completed on the Defendant through his attorneys

and sports agents, Mark Bartelstein of Priority Sports by leaving a copy of the summons and

complaint with Nolan Cooney, the receptionist. The next day, on February 3, 2022, Plaintiff’s

counsel was contacted by Kyle Dolan of Priority Sports on Defendant’s behalf, and the parties

briefly discussed settlement.

10. The affidavit of service was filed on February 7, 2022 (ECF No. 5).

11. After service was effectuated on Defendant’s agent, Plaintiff discovered a further

article dated February 3, 2022, located at URL:

https://www.espn.com/nba/story/_/id/33205391/lance-stephenson-agrees-deal-indiana-pacers-

rest-season, again confirming Defendant’s agents are Mark Bartelstein and Reggie Brown of

Priority Sports, but also confirming that Defendant would remain with the Indiana Pacers through

the end of the season.

12. Fed. R. Civ. P. Rule 4(e) also permits service on an individual by “following state

law for serving a summons in an action . . . in the state where the district court is located or where

service is made.” Fed. R. Civ. P. 4(e)(1). Indiana law provides for service on an individual by

“sending a copy of the summons and complaint by registered or certified mail or other public

means by which a written acknowledgment of receipt may be requested and obtained to his

residence, place of business or employment with return receipt requested and returned showing

receipt of the letter…” Ind. R. Trial P. 4.1(A)(1).

13. Indiana law also provides for service on an individual by “serving his agent as

provided by rule, statute or valid agreement” and then “[sending] by first class mail, a copy of the

summons and the complaint to the last known address of the person being served, and this fact

shall be shown upon the return.” Ind. R. Trial P. 4.1(A)(4), (B).

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14. Because of the additional information regarding Defendant remaining in Indiana,

on April 27, 2022, Plaintiff’s counsel conducted a “people search” on TLOxp which provided 7590

Hunt County Lane, Zionsville, IN, 46077 as a current address for Defendant. This address was

also confirmed through a property record search in Boone County, Indiana. Pursuant to Ind. R.

Trial P. 4.1(A)(1), Plaintiff’s counsel then mailed the summons and complaint by certified mail,

return receipt requested, to Defendant’s residence at 7590 Hunt County Lane, Zionsville, IN,

46077. The mailing was sent under United States Postal Service certified tracking number 7021

2720 0000 5422 3045. However, despite attempted delivery on May 3, 2022, with notice left by

the United States Postal Service, the mailing was unclaimed and therefore returned as of June 13,

2022.

15. Plaintiff respectfully submits that an adequate and diligent investigation was

performed to serve and provide Defendant with notice of the action, and service on Defendant’s

agent effectively provided such notice in that Defendant’s confirmed agent contacted Plaintiff’s

counsel and the parties engaged in a meaningful dialogue to resolve the action through settlement.

16. On May 3, 2022, Plaintiff’s counsel was contacted and advised by Rick Smith of

Priority Sports that Mr. Dolan was no longer with the company, however, the parties continued

settlement negotiations and significant progress was made. Follow up communications were sent

to Mr. Smith on May 18, May 19 (with a draft settlement agreement attached), May 24, June 6,

June 14, and June 22, 2022.

17. On June 22, 2022, Plaintiff’s counsel advised Mr. Smith that Plaintiff would accept

Defendant’s last offer, however Mr. Smith then explained that he no longer had settlement

authority. Instead, a family member, Defendant’s mother, contacted Plaintiff’s counsel stating

they were seeking counsel and needed additional time to retain and review the matter with counsel.
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A follow up email was sent to Defendant’s family member on June 28, 2022. On July, 5, 2022,

Plaintiff’s counsel spoke with Defendant’s family member who advised they still needed time to

review and retain counsel.

18. Plaintiff respectfully submits that the delay in proceeding with entry of default and

default judgment is due to Plaintiff’s counsel’s good faith engagement in productive settlement

discussions with Defendant’s agent (and then mother) and the good-faithed and reasonable belief

that the matter would be quickly resolved without the need for further litigation.

19. At the same time, we recognize that such efforts to resolve the matter without

providing status to the court or an appearance by defendant may seem as though Plaintiff is not

prosecuting the action. To this end, Plaintiff and counsel verily apologize for the delay in

proceeding, but beg the Court’s consideration of the reason for such delay, as it was a part of an

effort to conserve the parties’ resources during settlement discussions, to avoid defaulting a

cooperative defendant and the waste of judicial resources, along with what may have ultimately

been found to be unnecessary motion practice.

20. Further to that point, Plaintiff’s counsel’s general procedure is to attempt to make

any and all efforts to contact a defaulting defendant, or any counsel that we may be able to identify,

in an effort to resolve the matter with the defendant prior to seeking a default judgment. Or, if

contact is made but resolution is not possible, to proceed with the action through litigation for a

final determination on the merits of the claim which is in line with the Seventh Circuit’s well-

established policy favoring a trial on the merits over a default judgment. C.K.S. Engineers, Inc. v.

White Mountain Gypsum Co., 726 F.2d 1202, 1205 (7th Cir. 1984) citing United States v. An

Undetermined Quantity of Article of Drug Labeled as Benylin Cough Syrup, 583 F.2d 942, 946

(7th Cir. 1978); and Scarver v. Allen, 457 F.2d 308, 310 (7th Cir. 1972). In that regard, Plaintiff is
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ready to continue settlement discussions with Defendant or his new counsel once retained, or to

proceed with litigation if the parties cannot reach an amicable settlement.

21. In light of the above, Plaintiff respectfully requests that the Court find that service

on Defendant is sufficient. In the alternative, should the Court determine service to be inadequate,

Plaintiff respectfully requests an additional forty-five (45) days to re-serve the Defendant, and to

continue discussions regarding potential settlement and Defendant’s intentions to file an

appearance or response to the complaint.

WHEREFORE, in view of the foregoing, Plaintiff respectfully requests that the Court find

that good cause exists to excuse Plaintiff’s delay, that the action should not be dismissed under

Fed. R. Civ. P. 41 for failure to prosecute or under Fed. R. Civ. P. 4(m) for failure to effect proper

service, or in the alternative, if the Court deems service insufficient, to grant Plaintiff additional

time of forty-five (45) days to re-serve Defendant.

Dated: July 14, 2022

Respectfully submitted,

SANDERS LAW GROUP

By: /s/ Craig B. Sanders

Craig B. Sanders, Esq.
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Tel: (516) 203-7600
Email: [email protected]
Attorneys for Plaintiff
File No.: 123875
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CERTIFICATE OF SERVICE

I hereby certify that on July 14, 2022, I caused the foregoing to be filed via ECF which will
give notice to all counsel and parties of record.

/s/ Craig B. Sanders

Craig B. Sanders, Esq.