United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge.
Vincent Lucas, an experienced pro se litigant,
filed this case on May 2, 2018 in the Clermont County Court
of Common Pleas against multiple companies and individuals,
alleging as he has in multiple other cases that various
Defendants violated the federal Telephone Consumer Protection
Act (“TCPA”) and other laws. More than three
months later on September 21, 2018, Defendant Jasjit Gotra
removed the case to this Court. The undersigned takes judicial
notice that the above-captioned case contains nearly
identical claims as those stated in No. 1:17-cv-374, a case
that Plaintiff also initiated in state court, but that was
first removed to this Court and ultimately was transferred to
West Virginia as part of multidistrict litigation.
to local practice, the case has been referred to the
undersigned magistrate judge. Currently pending is
Plaintiff's motion for default judgment against three
Defendants. For the following reasons, that motion should be
DENIED and this case should be dismissed.
after removal to this Court, Plaintiff filed an amended
complaint identifying Brian Fabiano, Ricardo Diaz, Eric
Polson, and Jake Murray as John Doe defendants.(Doc. 7). On
November 13, 2018, Plaintiff obtained an entry of default
against three non-appearing Defendants: Defend America, LLC,
Jessica T. Merrick, and Rick A. Merrick. (Doc.
However, despite the fact that this case was initiated more
than a year ago in state court, and has been pending for
nearly a year in this Court, no scheduling order has ever
the individual Defendants filed motions to dismiss. In March
2019, Plaintiff filed a motion seeking to compel those
Defendants to participate in a Rule 26(f) discovery
conference, but the referenced parties jointly sought to stay
the Court's ruling on that motion while they attempted to
reach “an amicable resolution of Plaintiff's
claims.” (Doc. 35). The undersigned granted the request
to stay proceedings. On June 15, 2019, Plaintiff filed an
unopposed motion to voluntarily dismiss without prejudice all
claims against Defendants Jasjit Gotra,  Brian Fabiano,
Eric Polson, Ricardo Diaz and Jake Murray. Plaintiff's
unopposed motion was granted on June 17, 2019, leaving only
the three non-appearing Defendants, together with
still-unidentified John Doe Companies and individuals. (Doc.
15, 2019, Plaintiff filed a motion seeking entry of default
judgment against Defend America, LLC, Jessica T. Merrick, and
Rick A. Merrick. (Doc. 39). Plaintiff's motion also
proposes to dismiss all remaining “John Doe”
Defendants without prejudice, thereby ending litigation over
the 51 calls for the time being. (Id. at n.1).
original and amended complaint in this case, as in No.
1:17-cv-374-TSB-KLL, Plaintiff's central allegation is
that various defendants made 51 telemarketing calls to
Plaintiff's residential telephone number “by or on
behalf of both Monitronics International, Inc.
(“Monitronics”) and Alliance Security, Inc.
(“Alliance” or “Alliance
Security”).” (Complaint at ¶8, see
also ¶46; compare No. 1:17-cv-374,
Complaint at ¶¶6 and 41). Although the complaint in
the above-captioned case and that filed in No. 1:17-cv-374
share numerous identical allegations, the two complaints seek
to hold a slightly different cast of parties legally
responsible for the same calls. Thus, in No. 1:17-cv-374,
Plaintiff sued Monitronics International, Inc., Alliance
Security Inc., Defend America LLC, Jessica T. Merrick, Rick
A. Merrick, Tyler Coon, Comet Media, Inc. and Lucky 7, Inc
PH, as well as John Doe companies. As discussed in greater
depth below, Plaintiff's inclusion of Monitronics and
Alliance Security led to the transfer of No. 1:17-cv-374 to
West Virginia, where it became a member case in MDL No. 2493.
to avoid the same fate, Plaintiff elected not to include
Monitronics or Alliance Security as Defendants in the
reiteration of his claims in the above-captioned case,
despite the fact that the same 51 telemarketing calls remain
at issue, and are alleged to have been made “by or on
behalf of” those two entities. In place of the
entities, Plaintiff instead names new Defendant Jasjit Gotra,
alleged to be the founder, majority owner, and CEO of
Alliance Security and “personally liable for the
actions of Alliance Security.” (Complaint at ¶9).
On the whole, Plaintiff's claims against Gotra mirror his
prior claims for liability against Monitronics and Alliance
Security. Thus, in place of setting forth claims for
“liability of Monitronics and Alliance Security for
Actions of Agents” as he did in No. 1:17-cv-374, the
current complaint substitutes the heading “Liability of
Gotra for Actions of Alliance Security and Its Agents.”
As in No. 1:17-cv-374, Plaintiff also identifies as
Defendants Defend America LLC, Jessica and Rick Merrick,
Tyler Coon, and individual John Does. However, Plaintiff has
eliminated references to Comet Media (an entity previously
dismissed from 1:17-cv-374) as well as most references to
Lucky 7, Inc. PH.
as here, the Clerk has made an entry of default, the factual
allegations of the complaint, except those relating to the
amount of damages, will be taken as true. Here, Plaintiff
alleges involvement by three non-appearing Defendants in just
2 out of 51 calls allegedly made to his residential telephone
number “by or on behalf of” Monitronics and
Alliance Security for the purpose of selling home alarm
monitoring services. The referenced two calls occurred on May
6, 2015 and May 13, 2015.
factual allegations will be accepted as true, judgment will
not be entered unless it appears that those allegations
support liability as a matter of law. See e.g., Johnson
v. Levi Strauss, 2009 WL 4806467 (S.D. Ohio Dec. 9,
2009) (default judgment cannot be entered when the complaint
fails to state a claim upon which relief can be granted).
Here, Plaintiff's motion for default judgment should be
denied because the allegations do not support liability as a
matter of law. Instead, the allegations appear to be based
upon nearly identical claims filed by Plaintiff against
Defend America LLC that were recently settled in
multi-district litigation in West Virginia, and fail to state
any claim against the two individual Defendants.
Allegations and Claims Concerning Two May 2015 Calls
allegations concerning the non-appearing Defendants'
alleged involvement are set forth in paragraphs 15-20 of his
15. On 5/6/15 and 5/13/15, I received telephone calls
on behalf of Monitronics and Alliance
Security. My caller ID displayed the same
originating telephone number during both calls. The purpose
of the calls was to sell me alarm monitoring services. The
5/13/15 call started with a pre-recorded message offering to
provide a “free” home alarm system. After
answering a series of questions, the interactive voice
response system allowed me to speak with a live sales
representative. The sales representative said that he
represents “Home Security Center” and the
installation of the security system was at “no
cost”, but I would be required to pay Monitronics for
an alarm monitoring contract. The alarm system would be
installed by Alliance Security. The caller said that I could
call him back at (888) 336-9616.
16. In truth, the company “Home Security Center”
does not exist. “Home Security Center” is a
fictitious entity made up by Alliance Security, Monitronics,
and/or Defend America LLC.
17. The telephone number (888) 336-9616 was assigned to
Defend America LLC on the date of the call. Defend
America LLC ...