Lucas v. Gotra

          Barrett, J.

          SUPPLEMENTAL REPORT AND RECOMMENDATION

          STEPHANIE K. BOWMAN, UNITED STATES MAGISTRATE JUDGE

         On July 25, 2019, the undersigned filed a Report and Recommendation (“R&R”) that recommended that Plaintiff's motion for default judgment against Jessica and Rick Merrick and Defend America, LLC, seeking the entry of default judgment for two unwanted telephone calls received on Plaintiff's residential telephone line in May 2015, be denied. The same R&R recommended that this case be dismissed with prejudice and closed. Instead of filing Objections to the pending R&R, Plaintiff filed a Notice of Withdrawal of his motion for default judgment. In so doing, Plaintiff expressed his intention to render moot the pending R&R and preserve his ability to re-file a motion for default judgment against the same individuals, as well as (potentially) additional claims, at a later date.^[1]

         The undersigned now recommends that Plaintiff's “Withdrawal of his Motion for Default Judgment” be denied and instead construed as “Objections” to the pending R&R. In the alternative, should the presiding district judge deem the withdrawal of Plaintiff's motion for default judgment to be effective at this date, the undersigned still recommends that the pending R&R be fully considered, together with this Supplemental R&R. If the Plaintiff's notice to withdraw his motion for default judgment is permitted, the undersigned recommends the same result be obtained (dismissal of all remaining claims in this lawsuit) sua sponte. Although the entire July 25, 2019 R&R should be considered, portions of that R&R are reiterated herein for emphasis and for the convenience of the Court.

         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.^[2](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).^[3] 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, ^[4] 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 Case 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.^[5] 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. 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.^[6] 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.^[7]

         As noted in the July 25, 2019 R&R, Defendant America LLC appears to have been dissolved as an entity on November 1, 2016. Plaintiff's motion for default judgment sought entry of monetary damages against Defend America and against two individuals who are alleged to have been officers of that dissolved company at the time that two phone calls were allegedly made by Defend America, acting on behalf of another company.

         In the July R&R, the undersigned recommended denial of Plaintiff's motion for default judgment against the Merricks and Defend America, LLC based on: (1) the existence of the prior lawsuit over the same 51 calls which had been transferred to West Virginia as part of MDL litigation, and from which - contrary to Plaintiff's statements in this case - Defend America LLC had not been dismissed; (2) the recent entry of an order by the West Virginia court stating that Plaintiff had resolved all claims in the earlier filed suit; (3) the fact that Plaintiff's re-filed state law claims against Defend America LLC in this case were time-barred, and not protected by Ohio R.C. § 2305.19(A); (4) the fact that the Merricks were in privity with Defend America, resulting in a bar of new claims against them; (5) the fact that the instant lawsuit generally seeks to impose liability for identical telephone calls based on “new and improved” target defendants (see No. 16-cv-1102, Doc. 93, objections pending); and (6) the fact that Plaintiff's allegations against the Merricks were insufficient to state a claim as a matter of law. In addition, the prior R&R recommended the dismissal of all remaining John Does, and the dismissal of this case with prejudice based upon the length of time in which this case has been pending, the dates of the alleged calls, and Plaintiff's failure to timely identify any additional John Does following the filing of an amended complaint on October 9, 2018. See Bradford v. Bracken County, 767 F.Supp.2d 740, 756 (E.D. Ky. 2011) (explaining that dismissal under Rule 4(m) after expiration of the statute of limitations will effectively be with prejudice, collecting cases).

         In seeking to withdraw his motion for default judgment against the Merricks and Defend America, Plaintiff states that he did not intend to falsely state to this Court that he had dismissed Defend America from No. 1:17-cv-374, but merely “overlooked” that inconvenient fact. He apologizes for what he describes as an “oversight…due to the extremely long time that the case has been stayed and the fact that I voluntarily dismissed its owners from the case.” (Doc. 41 at 1).^[8] Plaintiff now states that - contrary to the MDL court's June 26, 2019 Order - he has not reached a settlement with Defend America over the two May 2015 calls, but instead has settled his claims with Monitronics alone. (Doc. 41 at n.2, characterizing the MDL order as “inaccurate”).^[9] Plaintiff explains that, once certain conditions are met, he intends to submit a draft Stipulated Order to the MDL judge that “requests that the claims against the remainder of the defendants, including Defend America LLC be transferred back to the Southern District of Ohio.” (Doc. 41 at 2). Plaintiff explains that, assuming the MDL court agrees and enters an order remanding the remaining claims in No. 1:17-cv 374 back to this Court, Plaintiff “will seek to consolidate that case with this case and then file a new motion for default judgment.” (Id.)

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