Howard v. Environmental Fluids Incorporated et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Kyle Howard,
Plaintiff,
v.
Environmental Fluids Incorporated, et al.,
Defendants.
No. CV-25-00088-PHX-DWL
ORDER
On December 11, 2025, the Court ordered the Clerk to enter a Rule 54(b) judgment
awarding $429,023.50 against Defendant Environmental Fluids Inc. (“EFI”), with
Defendant Casey Amundson being jointly and severally liable with EFI for $7,440.30 of
that sum. (Doc. 53.) The Clerk entered judgment accordingly. (Doc. 54.) The Court also
ordered Plaintiff to file a notice explaining how he intended to proceed on his remaining
claims against Defendants Ryan Esner and Edward Esner (or to file a voluntary dismissal
as to those defendants). (Doc. 53.)
On December 24, 2025, Plaintiff filed a notice indicating that he intended to file
either a motion for default judgment or a motion for summary judgment on his remaining
claims against Defendants Ryan Esner and Edward Esner. (Doc. 56.) Plaintiff also noted
that he and Edward Esner “were previously in the process of scheduling a settlement
conference with a magistrate judge”1 and Plaintiff intended “to continue that effort.” (Id.)
1 The parties’ August 15, 2025 Rule 26(f) report requested reference to a magistrate
judge for a settlement conference (Doc. 36), and on August 18, 2025, the Court referred
the case to Magistrate Judge Aguilera for that purpose, directing counsel to contact Judge
Aguilera’s chambers within 14 days. (Doc. 38.) The docket does not reflect that counsel
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On January 20, 2026, Plaintiff filed an application for writ of garnishment from U.S.
Bank to satisfy the judgment against EFI. (Doc. 60.) On January 21, 2026, the writ of
garnishment issued. (Doc. 61.) On January 23, 2026, Plaintiff served EFI with the writ.
(Doc. 62.)
On February 10, 2026, the Clerk received and docketed U.S. Bank’s answer to the
writ of garnishment. (Doc. 64-1.)2
On February 26, 2026, Plaintiff filed a “Notice of Intent to Serve Post-Judgment
Subpoena on Third Party” seeking “information regarding accounts and assets held by the
garnishee in the name of the judgment debtor,” including “(1) All monthly bank statements
held in the name of corporation; (2) Signature cards and account-opening documents; (3)
All deposit and withdrawal records; (4) All wire transfer records; (5) Any documents
identifying authorized signers or beneficial owners.” (Doc. 65 at 1, 4.)
That same day, February 26, 2026, Plaintiff filed an Application for Garnishment
Judgment, requesting entry of a garnishment judgment by the Clerk. (Doc. 66.) “In a
garnishment of monies or indebtedness, if the answer shows that the garnishee was
indebted to the judgment debtor at the time of service of the writ, and no objection to the
writ or answer is timely filed, on application by the judgment creditor the court shall enter
judgment on the writ against the garnishee for the amount of the nonexempt monies of the
judgment debtor owed or held by the garnishee at the time of service of the writ” A.R.S.
§ 12-1584(A). No objection to the writ or answer having been timely filed, Plaintiff is
entitled to judgment on the writ. Although the Application for Garnishment Judgment was
directed to the Clerk, the statute appears to contemplate that judgment will be entered by
the Court, such that the Clerk’s office has converted the application into a pending motion.
A judgment shall enter forthwith.
ever contacted Judge Aguilera’s chambers.
2 The answer, as filed, was missing page 2. (Doc. 64.) Upon inquiry from the
undersigned, the Clerk located page 2 and filed a corrected scan on March 17, 2026. (Doc.
64-1.) Nevertheless, the temporary omission of page 2 from the filed copy appears
harmless because pursuant to A.R.S. § 12-1579(C), U.S. Bank was required to deliver a
copy of the answer to EFI.
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As a final matter, Defendants Ryan Esner and Edward Esner filed an answer on June
13, 2025 (Doc. 30) and met and conferred with Plaintiff to develop the Rule 26(f) report
on August 6, 2025. (Doc. 36.) In August/September 2025, Counsel for Ryan and Edward
Esner withdrew with Edward’s consent and without Ryan’s objection. (Docs. 39, 40, 41,
43, 44.) Ryan Esner’s mail has been returned as undeliverable since that time. (Docs. 45,
52, 55.) Although Plaintiff indicated in December 2025 that he was pursuing settlement
efforts with Edward Esner (Doc. 56), the February 12, 2026 deadline to engage in good
faith settlement talks and requirement to file a joint report on the settlement talks no later
than five working days after the deadline (Doc. 37 at 7) lapsed unheeded. Additionally,
the March 19, 2026 dispositive motion deadline (id. at 5) has now expired and no such
motions have been filed.
Thus, Plaintiff is ordered to show cause why his claims against Defendants Ryan
Esner and Edward Esner should not be dismissed for failure to prosecute and failure to
adhere to a court order. “It is within the inherent power of the court to sua sponte dismiss
a case for lack of prosecution.” Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). “When
considering whether to dismiss a case for lack of prosecution, the district court must weigh
the court’s need to manage its docket, the public interest in expeditious resolution of
litigation, and the risk of prejudice to the defendants against the policy favoring disposition
of cases on their merits, and the availability of less drastic sanctions.” Id. The Ninth Circuit
has affirmed dismissal without prejudice for a delay as short as four weeks, noting that “[a]
relatively brief period of delay is sufficient to justify the district court’s sending a litigant
to the back of the line.” Id. at 497.
Accordingly,
IT IS ORDERED that Plaintiff’s Application for Garnishment Judgment (Doc. 66)
is granted. A separate judgment shall issue.
IT IS FURTHER ORDERED that Plaintiff shall, by April 3, 2026, file either (1)
a notice of voluntary dismissal of this action or (2) a memorandum, not to exceed five
pages, showing cause why his claims against Defendants Ryan Esner and Edward Esner
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should not be dismissed for failure to prosecute and failure to adhere to court orders.
Dated this 20th day of March, 2026.
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