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Lucas v. Jolin

United States District Court, S.D. Ohio, Western Division

June 5, 2017

AURELIO JOLIN, Defendants.

          Stephanie K. Bowman Magistrate Judge


          Timothy S. Black United States District Judge


         This case is before the Court pursuant to the Order of General Reference in the United States District Court for the Southern District of Ohio Western Division to United States Magistrate Judge Stephanie K. Bowman. Pursuant to such reference, the Magistrate Judge reviewed the pleadings filed with this Court and, on January 24, 2017, submitted a Report and Recommendations. (Doc. 101). Petitioner filed objections to the Report and Recommendations on February 7, 2017. (Doc. 102).

         Plaintiff is a serial pro se litigant who has filed several cases in this district seeking judgments against various individuals and corporate entities alleging that he has been the recipient of unauthorized telemarketing phone calls in violation of the Federal Telephone Consumer Protection Act and related Ohio law. Through his efforts, Plaintiff has acquired judgments against several parties across his multiple cases totaling tens of thousands of dollars, although many of these awards have come through default judgments. In this case, Plaintiff has won two default judgments that are relevant for purposes of evaluating the magistrate judge's report and recommendations: a default judgment against Defendant Kevin Calvin in the amount of $22, 800 with costs (Doc. 38) and a default judgment against Defendants Shawn Wolmuth and Premium Outsourced Solutions, Inc. for a total amount of $45, 600 with costs (Doc. 89)[1].

         The magistrate judge's report and recommendations outlines a recommended disposition for three motions filed by Plaintiff and currently pending in this case: 1) Plaintiff's motion for contempt filed November 16, 2016 (Doc. 95), 2) Plaintiff's ex parte motion for writ of garnishment filed January 11, 2017 (Doc. 99), and 3) Plaintiff's amended motion for discovery in aid of execution of judgment filed January 12, 2017 (Doc, 100). The Court will address each of these motions in turn.

         II. ANALYSIS

         A. Plaintiff's motion to compel

         Plaintiff's first motion is a motion for contempt filed against nonparty Waycross South Properties, LLC (“Waycross”). (Doc. 95). Waycross leases commercial office space in Cincinnati, Ohio, and at one time leased space to Defendant Kevin Calvin. As part of his efforts to collect on his default judgment against Defendant Calvin, Plaintiff issued a subpoena to Waycross on June 10, 2016 seeking various information about Calvin, including any lease application forms filled out by Calvin, Calvin's last known address and telephone number, Calvin's social security number, and more. (Doc. 87-1, at 3). Waycross did not respond to the subpoena, and Plaintiff filed a motion to compel on August 26, 2016 asking the Court to both compel Waycross to respond and to order a sanction requiring Waycross to pay Plaintiff $300 plus $50 for each day until compliance with the subpoena. (Doc. 87).

         The magistrate judge issued an Order on October 6, 2016 granting Plaintiff's motion to compel in part. (Doc. 90). The Order compelled Waycross to respond to the subpoena by October 20, 2016, but issued no sanctions. (Id. at 9). The subpoena was reissued via mail to the P.O. Box registered to Waycross's statutory agent and a second copy was sent to Waycross's corporate address.

         Waycross has yet to respond to the subpoena. Plaintiff filed a motion for contempt against Waycross on November 16, 2016. In that motion, Plaintiff represented that he personally spoke with whom he believed to be Waycross's agent on the phone, and that the agent indicated that Waycross would not be honoring the subpoena, stating “I am not interested in dealing with you!” (Doc. 95, at 1). Plaintiff's motion reiterated his request for a daily fine to be issued against Waycross in order to “coerce obedience, ” citing previous cases where this Court and others had imposed similar sanctions. (Id. at 3).

         The magistrate judge's report and recommendations recommends that Plaintiff's motion for contempt against Waycross be denied. The report and recommendations expressed four “serious concerns” regarding the issuance of a contempt Order and/or sanctions: (1) the contempt enforcement of a subpoena against a non-party that was never personally served; (2) the redundant nature of the information sought from this particular non-party in light of a subpoena previously served upon third party TransUnion; (3) the general prohibition against allowing post-judgment discovery of third parties to turn into “a means of harassment” of the non-party; (4) general principles of proportionality applied to this case. (Doc. 101, at 9). The Court agrees with the magistrate judge's analysis, and is particularly concerned by the harassment and proportionality issues raised by the report and recommendation.

         Plaintiff's objections argue that Waycross is in fact in violation of a Court order, and that his attempts to see that Order enforced cannot logically be viewed as “harassment.” Plaintiff further argues that his request for daily fines is fair recompense for the many hours he has spent on motions resulting from Waycross's refusal to comply with a subpoena. (Doc. 102, at 4). The Court does not agree. Plaintiff has personally visited the statutory agent of Waycross (Doc. 87, at 2) and telephoned a man believed to be the same individual (Doc. 95, at 1) seeking answers about the subpoena. Plaintiff has a right to the information sought in the subpoena, and Waycross is required to comply. However, the Court has discretionary authority in the area of sanctions. In examining the circumstances surrounding this case from the perspective of Waycross, where Waycross has been repeatedly contacted by a man who is not a lawyer but claims to have a right to receive detailed personal information related to a former client, Waycross's reluctance to comply with the document that man alleges to be a subpoena is understandable, particularly if Waycross's statutory agent is not himself well versed in the law. Sanctions are therefore are inappropriate at this time.

         The magistrate judge's report and recommendation proposed a solution which the Court believes will appropriately put Waycross on notice of its legal requirement to comply with the subpoena and deliver to Plaintiff the information he seeks. The Court will order the United States Marshal to personally serve the registered statutory agent of Waycross with a copy of the subpoena, as well as the magistrate judge's October 6, 2016 order to compel (Doc. 90), the magistrate judge's most recent report and recommendations (Doc. 101), and this Order (at the Court's ...

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