Kingsley et al v. Amazon.com Services LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
SUSAN DIANA KINGSLEY and JAMES
KINGSLEY, individually and on behalf of
MIKKO JORAN COOK,
Plaintiffs,
MEMORANDUM DECISION AND
ORDER DISMISSING CASE WITHOUT
PREJUDICE
v.
AMAZON.COM SERVICES LLC, a
Delaware corporation; and DXM
PHARMACEUTICALS, INC., a Texas
corporation,
Case No. 2:25-cv-00385-TC-CMR
Judge Tena Campbell
Magistrate Judge Cecilia M. Romero
Defendants.
On August 28, 2025, the court issued an order holding that Plaintiffs Susan Diana
Kingsley and James Kingsley must retain counsel to bring claims on behalf of their son, Mikko
Joran Cook. (Mem. Decision & Order, Aug. 28, 2025, ECF No. 29.) The order stated that
failure to retain counsel “will result in the dismissal of this action. Counsel must either file a
notice of appearance or the Plaintiffs must move to appoint counsel within 30 days from the date
of this order.” (Id. at 13.)
The time to comply with that order expired on Monday, September 29, 2025. See Fed. R.
Civ. P. 6(a)(1)(C) (noting that when a period of time ends on “a Saturday, Sunday, or legal
holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday,
or legal holiday”). The Plaintiffs filed a motion that day asking the court either to appoint
counsel or to allow additional time for the Plaintiffs to find counsel. (Mot. Ext., ECF No. 31.)
The court reiterated that it did not find it appropriate to appoint counsel in this matter but
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allowed the Plaintiffs 30 days to retain counsel themselves. (Order, Oct. 3, 2025, ECF No. 33.)
The time to comply with that order expired on Monday, November 3, 2025. The Plaintiffs did
not file another motion for an extension and no counsel entered a notice of appearance on behalf
of Mr. Cook.
When a plaintiff fails to comply with court orders, the Federal Rules of Civil Procedure
allow a court to dismiss an action involuntarily. Fed. R. Civ. P. 41(b). Unless the dismissal
order states otherwise, or the dismissal is based on a lack of jurisdiction, improper venue, or the
failure to join a party, such a dismissal acts as an adjudication on the merits. Id. Here, however,
the Plaintiffs are representing themselves, and their failure to obtain counsel may be based on
other factors besides the merits of the underlying claims. The court was therefore prepared to
dismiss this action without prejudice for failure to prosecute.
But before the court could enter the dismissal order, Defendant Amazon.com Services
LLC (Amazon) filed a motion asking the court to dismiss the action with prejudice. (Amazon
Mot. Dismiss, ECF No. 34.) Defendant DXM Pharmaceuticals, Inc. (DXM), the only other
defendant named in the action, later filed a separate motion in which it also asked the court to
dismiss the action with prejudice. (DXM Mot. Dismiss, ECF No. 35.) Because dismissal with
prejudice is a harsh sanction, the court kept the action open to allow the Plaintiffs to respond to
the Defendants’ motions.
The Plaintiffs filed their response on November 26, 2025. (ECF No. 36.) In that
response, the Plaintiffs ask for an additional 60 days to find counsel—or, in the alternative, for
the court to appoint counsel for the limited purpose of conducting settlement discussions. (Id.
at 1–2.) The Plaintiffs offer no explanation about why they failed to make these requests by
November 3, 2025, the deadline set by the court. The Plaintiffs also include purported citations
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to Tenth Circuit cases in support of their requests, but the cited cases do not include the quoted
language. For instance, citing Meeker v. Kercher, 782 F.2d 153 (10th Cir. 1986), the Plaintiffs
claim that the Tenth Circuit has held as follows: “A district court may not dismiss an
incompetent litigant’s claims without first ensuring representation or making protective
findings.” (ECF No. 36 at 2.) But Meeker contains no such direction, and the court was unable
to locate another Tenth Circuit case with this holding. Instead, the Tenth Circuit has held that “a
minor child cannot bring suit through a parent acting as next friend if the parent is not
represented by an attorney.” Meeker, 782 F.2d at 154. The court is therefore unconvinced by
the Plaintiffs’ legal arguments.
The Plaintiffs also claim that they attempted to contact four law firms on
October 22, 2025, and that one firm, Ray Quinney & Nebeker P.C., initially offered to represent
Mr. Cook before declining a month later. (See Attempts to Retain Counsel, ECF No. 36-1 at 3.)
The Plaintiffs did not attach any documents showing the Plaintiffs’ communications with these
law firms.
Even assuming that the Plaintiffs’ attempts to retain counsel are accurate, the court finds
no excusable neglect that prevented the Plaintiffs from complying with the court’s previous
order. See Fed. R. Civ. P. 6(b)(1)(B). The Plaintiffs did not file a response or other motion
before the November 3 deadline and have not provided any reason they were unable to do so. If
Ray Quinney & Nebeker P.C. had initially offered to represent Mr. Cook, it is unclear why that
firm did not ask for an extension of time or otherwise enter an appearance. But now that the firm
has declined to represent Mr. Cook, it appears that the Plaintiffs are no closer to retaining
counsel than they were three months ago. According to DXM, the pharmaceutical company has
had its products restricted from being listed and sold on Amazon’s site as a result of this lawsuit.
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(Decl. Mark Thuesen, ECF No. 35-4 at ¶ 5.) Given these facts, the court declines to provide the
Plaintiffs with further extensions and will dismiss this matter.
Turning to the question of whether that dismissal should be with or without prejudice, the
court examines the factors set forth by the Tenth Circuit in Ehrenhaus v. Reynolds: “(1) the
degree of actual prejudice to the defendant; (2) the amount of interference with the judicial
process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that
dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of
lesser sanctions.” 965 F.2d 916, 921 (10th Cir. 1992) (cleaned up).
The court finds that the Defendants have been prejudiced only slightly by the Plaintiffs’
failure to obtain counsel by November 3, 2025, which resulted in the continuation of this case by
an additional month. There is also little interference with the judicial process. And although the
Plaintiffs’ efforts to obtain counsel were not vigorous (it appears that the Plaintiffs called four
firms on October 22, 2025, and had only contacted a few firms previously), it does appear that
the Plaintiffs made good faith attempts to comply with the court’s orders. The court warned the
Plaintiffs that it was not inclined to appoint counsel in this matter and that the Plaintiffs’ failure
to retain counsel would “result in the dismissal of this action ….” (ECF No. 29 at 13.)
Finally, the court finds that dismissing this action without prejudice is an effective lesser
sanction. Under Federal Rule of Civil Procedure 41(d), the court may order the Plaintiffs “to pay
all or part of the costs” of this action if the Plaintiffs file another action based on the same claim
against the same defendants. This potential sanction acts as a deterrent against frivolous
lawsuits.
Taking the Ehrenhaus factors together, the court finds that a dismissal without prejudice
is appropriate. The court makes no finding about the underlying merits of the products liability
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claim. That claim is therefore still available to Mr. Cook if he is able to retain counsel who is
willing to certify under Rule 11 of the Federal Rules of Civil Procedure that any new action is
not presented for any improper purpose and that the factual contentions contained in the new
complaint have or likely will have evidentiary support.
The parties may, of course, pursue settlement discussions without aid from this court that
would obviate the need for any future litigation. But the court declines the suggestion from both
the Plaintiffs and Amazon that the court should appoint counsel for the limited purpose of
negotiating a settlement.
ORDER
For the reasons stated above, the court ORDERS as follows:
1. 	The court DISMISSES this action WITHOUT PREJUDICE for failure to comply
with the court’s orders.
2. 	The Defendants’ Motions to Dismiss (ECF Nos. 34 & 35) are GRANTED IN
PART and DENIED IN PART.
3. 	The Plaintiffs’ Motion for an Extension and Motion to Appoint Counsel for
Settlement Purposes (ECF No. 36) are DENIED.
DATED this 1st day of December, 2025.
BY THE COURT:
_________________________
Tena Campbell
United States District Judge
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