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Lucas v. Desilva Automotive Services

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

August 5, 2019

VINCENT LUCAS, Plaintiff,
v.
DESILVA AUTOMOTIVE SERVICES, et al., Defendants.

          Barrett, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge

         I. Background

         Plaintiff Vincent Lucas (“Lucas”) is an experienced pro se litigant who frequently litigates claims against Defendants that he believes have illegally placed telemarketing calls to his home telephone number.[1] Plaintiff initiated this lawsuit more than three years ago on July 27, 2016, by paying the requisite filing fee and filing a complaint that alleged only that three “John Doe” Defendants had violated federal law by engaging in illegal telemarketing practices. The original complaint alleged that John Doe 1 placed twelve calls to Plaintiff's residential phone number “[s]ince May 2016” on unspecified dates “to sell me a vehicle warranty.” (Doc. 1 at ¶6). Additionally, Plaintiff alleged that on unspecified dates “[s]ince May 2015, I have received eleven calls from Defendant John Doe 2, ” the purpose of which was “to sell me a vacation package.” (Id. at ¶9). Last, Plaintiff alleged that on unspecified dates “[s]ince May 2015, I have received twenty calls from Defendant John Doe 3, ” intended “to sell me a home security system.” (Id. at ¶10).[2]

         Although Plaintiff failed to identify any of the three “John Does” and did not serve anyone for the first four and a half months after filing suit, in December 2016 he filed an Amended Complaint that replaced the unidentified John Does with a list of sixteen Defendants alleged to be responsible for various calls on specific dates. (Doc. 3). Plaintiff's Amended Complaint greatly expanded (and changed) the factual underpinnings of his claims as well as the list of target Defendants. For example, in place of minimal allegations concerning 12 calls on unspecified dates by John Doe 1, Plaintiff's Amended Complaint identified 15 calls between May 10, 2016 and July 28, 2016, alleged to have been made by multiple Defendants for the purpose of selling him a vehicle warranty. Two “vehicle warranty” calls allegedly placed on May 16 and on June 1, 2016 were alleged to have originated from a number assigned to Defendant Callvation, LLC and to have been “initiated by” and “made” by Callvation “on behalf of Defendant Allied Vehicle Protection, as its agent.” (Doc. 3 at ¶¶16-18, 21-24).[3]

         The original allegations against the “vacation package” caller (John Doe 2 in the original complaint) were amended to identify Defendant Yucatan Holidays SA DE CV. By contrast, the original allegations against the “home security system” caller (John Doe 3) were deleted entirely, and replaced with new claims against the “Bizmote Defendants” for calls concerning the sale of internet services, and against the “Power Supplier Defendants” concerning the sale of residential electric services.

         With respect to the vehicle warranty calls, the record reflects that Plaintiff obtained service on Callvation through service on that entity's registered agent in February 2017, a date after the dissolution of that entity.[4] (Docs. 15, 36). Plaintiff had more difficulty in personally serving Jeffrey Torres, in part because Plaintiff did not know Torres's address. However, after conducting pre-service discovery on that issue, Plaintiff appears to have located the correct “Jeffrey Torres” out of the 113 possibilities that he originally identified. (Doc. 35). Plaintiff returned a summons form indicating that he had served the proper Defendant Torres by certified mail on April 21, 2017.[5] (Doc. 78). On the basis of Plaintiff's application to the Clerk of Court, Plaintiff obtained entries of default against both Callvation and Torres on his first amended complaint. (See Docs. 56, 58, 85, 86).

         On September 12, 2017, more than a year after Plaintiff filed suit, the undersigned granted Plaintiff leave to file a second amended complaint. (See Doc. 108, Second Amended Complaint). The second amended complaint eliminated a half dozen Defendants including Allied Vehicle Protection and other Defendants that Plaintiff had voluntarily dismissed, (see Docs. 60, 77, 79), but also added one new Defendant, Protect Us Now, LLC., in place of Defendant, Vilfil Translation Services LLC. (Doc. 84). Plaintiff chose not to serve Callvation and Torres with the second amended complaint, and - importantly - did not seek new entries of default against those Defendants.

         On October 19, 2017, the undersigned filed a Report and Recommendation (“R&R”) that recommended rulings on approximately a dozen motions, most of which had been filed by Plaintiff. (Doc. 122). Relevant to Plaintiff's recent motion to reopen this case in order to enter a default judgment against Defendants Callvation and Jeffrey Torres, the 2017 R&R recommended denying Plaintiff's first motion for default judgment against those two Defendants. The undersigned explained that the second amended complaint superseded the first amended complaint on which Plaintiff had obtained his entries of default. Therefore, “Plaintiff's second amended complaint renders moot the prior entries of default against both Defendants on Plaintiff's first amended complaint.” (Doc. 122 at 7).

         Despite this unequivocal holding, the R&R contained dictum noting the undersigned's “several [additional] concerns.” (Id.) Specifically, although the undersigned stated that service on a non-appearing defendant of a second amended complaint “may not be required under Rule 55(b)(2), Plaintiff is forewarned that courts and commentators alike have ‘gone to considerable lengths to impose the requirement that notice be given of an application for a default judgment'” even in the absence of a formal court appearance. (Id. at 8, emphasis original, citations omitted). Plaintiff had represented that he had been in contact with Mr. Torres by telephone, and that Torres had indicated that he was living with his parents and planned to file for bankruptcy protection if judgment were rendered against him. Based on the cited authority and the facts presented, the undersigned “encourage[d] Plaintiff to attempt some form of service of any future motion on Mr. Torres.” (Id.) As a second concern, the undersigned questioned the legal basis for awarding prospective injunctive relief as part of the default judgment, and referred to prior rulings and Sixth Circuit case law suggesting that the entry of piecemeal default judgments prior to the conclusion of a case is disfavored. (Id.) The third concern addressed by the R&R was with Plaintiff's alteration of facts and legal theories in his second amended complaint, as compared to his earlier complaint against the two referenced Defendants, notwithstanding Plaintiff's contention he was not technically adding new claims. (Id. at 9). The undersigned also questioned Plaintiff's request for the same monetary damages for a call made by an artificial or pre-recorded voice as “for a call on which no words were spoken and the caller hung up.” (Id.)

         Plaintiff vigorously objected to portions of the R&R, (Doc. 123), including the recommended denial of default judgment against Callvation and Torres. On March 31, 2018, Judge Barrett largely adopted the recommended holdings of the R&R for the opinion of the Court. (See Doc. 156).[6] Although Judge Barrett did not discuss the additional concerns expressed in dictum, Judge Barrett exhaustively addressed Plaintiff's disagreement with the holding that the second amended complaint rendered moot the prior entries of default against Callvation and Torres:

Plaintiff argues that the second amended complaint cannot render moot the prior entries of default, because the second amended complaint never became “operative.” He offers the following logic: his second amended complaint added no new claims against Defendant Callvation LLC and Torres; thus, he was not required to serve his second amended complaint on Defendants Callvation LLC and Torres, pursuant to Rule 5(a)(2); thus, he never served the second amended complaint, consistent with Rule 5(a)(2); thus, it never became operative against Defendants Callvation LLC and Torres; thus, it cannot render moot the prior entries of default.
Rule 5(a)(2) states: “No service is required on a party who is in default for failing to appear. But a pleading that asserts a new claim for relief against such a party must be served on that party under Rule 4.” According to Plaintiff, Rule 5(a)(2) requires this Court to treat his second amended complaint as operative upon service, not filing. For the reasons stated below, this argument fails.
Numerous courts have held that an amended complaint becomes operative upon filing, thus mooting a clerk's prior entry of default….

(Doc. 156 at 3-4, collecting cases).

         Judge Barrett went on to explain that Plaintiff had “misconstrue[d]” the “non-binding Second Circuit case” on which Plaintiff chiefly relied, Intern. Controls Corp. v. Vesco, 556 F.2d 665, 669 (2nd Cir. 1977). (Id. at 4). The Court explained that Vesco created a narrow exception, allowing default judgment to be entered on an earlier version of the complaint only when a plaintiff had added a new claim against a defendant in default, but was “unable to personally serve the same defendant a second time.” Id. at 6 (emphasis added). Judge Barrett determined that the Vesco exception was inapplicable, and that default judgment could not be entered on prior entries of default that had been rendered moot through the filing of Plaintiff's second amended complaint. (Id. at 8).

Plaintiff mistakenly believes that ….the Vesco holding would save his prior entry of default. It does not…. Plaintiff has adamantly maintained that his second amended complaint need not be served on Defendants Callvation LLC and Torres, per Rule 5(a)(2), because it adds no new claims for relief against them. This is true…..[T]he second amended complaint (Doc. 103) became operative against [Callvation and Torres] upon filing….As a result, Plaintiff's prior entry of default was issued based on an inoperative complaint, so the Court ...

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