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