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Lucas v. Gotra

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

July 25, 2019

VINCENT LUCAS, Plaintiff,
v.
JASIT GOTRA, et al., Defendants.

          Barrett, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge.

         Plaintiff Vincent Lucas, an experienced pro se litigant, [1] 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.[2] 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.

         Pursuant 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.

         I. Background

         Shortly after removal to this Court, Plaintiff filed an amended complaint identifying Brian Fabiano, Ricardo Diaz, Eric Polson, and Jake Murray as John Doe defendants.[3](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. 9).[4] 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 been entered.

         Four of 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, [5] 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. 26).

         On July 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).

         In his 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.[6] 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.

         Presumably 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.[7] 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.[8]

         II. Analysis

         When, 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.

         While 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.

         Plaintiff's Allegations and Claims Concerning Two May 2015 Calls

         Plaintiff's allegations concerning the non-appearing Defendants' alleged involvement are set forth in paragraphs 15-20 of his current complaint:

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 ...

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