Barr v. One Touch Direct, LLC et al

Filing 168

ORDER: To the extent Barr's "Response to Defendant Joseph Mole's Dispositive Motion to Dismiss Third Amended Complaint" (Doc. # 167 ) requests relief, it is denied for failure to comply with Local Rule 3.01(a). Barr shall file his proposed fourth amended complaint by March 6, 2017, as previously ordered (Doc. # 166). Signed by Judge Virginia M. Hernandez Covington on 3/3/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ALFRED BARR,
Plaintiff,
v.

Case No. 8:15-cv-2391-T-33MAP

ONE TOUCH DIRECT, LLC, et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court sua sponte in an
effort to maintain clarity in the record.
The current action was instituted by pro se Plaintiff
Alfred Barr on October 9, 2015. (Doc. # 1). The original
complaint named five defendants: “One Touch Direct, LLC, et
al.,

Joseph

Mole,

and

Christopher

Reed,

AT&T,

and

DPG

Leasing.” (Id. at 1). After the Court held its case management
hearing, during which Barr was granted leave to file an
amended complaint, Barr filed his first amended complaint on
January 19, 2016. (Doc. # 38). The first amended complaint
named “One Touch Direct, LLC, Joseph Mole, and Christopher
Reed, AT&T Services Inc., and DPG Employee Leasing LLC” as
defendants. (Id. at 1). The Defendants moved to dismiss the
first amended complaint and Barr failed to timely respond.

(Doc. ## 43, 50). As such, the Court granted the motion to
dismiss as unopposed and closed the case. (Doc. # 50).
However, Barr moved to reopen the action (Doc. # 53) and, in
the interests of fairness and recognizing that cases are
preferably tried upon the merits, the Court reopened the
action. (Doc. # 56). In addition, the Court granted Barr leave
to file a second amended complaint (Id.).
Barr filed his second amended complaint on March 18,
2016. (Doc. # 64). The second amended complaint named “One
Touch

Direct,

LLC,

Joseph

Mole,

Christopher

Reed,

AT&T

Services Inc., and DPG Employee Leasing LLC” as defendants.
(Id. at 1). Another round of briefing then ensued during which
the

Defendants

sought

dismissal

of

the

second

amended

complaint, or particular counts thereof, on various grounds.
(Doc. ## 69, 70, 74, 76). One of the arguments asserted by
the two individual Defendants—Mole and Reed—was that the
second amended complaint should be dismissed as against them
under Rule 12(b)(5) for insufficient service of process.
(Doc. # 70 at 2-4). The Court provided an in-depth discussion
regarding service in its Order dismissing the second amended
complaint. (Doc. # 78 at 7-12). Moreover, Barr’s suit against
Mole and Reed was not dismissed with prejudice at that stage
due to failure to comply with Rule 4; rather, Barr was granted

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an extension of time to effect service upon Mole and Reed.
(Id. at 12; Doc. # 82).
On May 31, 2016, Barr filed his third amended complaint.
(Doc. # 93). The third amended complaint named only four
defendants:

“One

Touch

Direct,

LLC,

Joseph

Mole,

AT&T

Services Inc., and DPG Employee Leasing LLC.” (Id. at 1).
When Barr failed to comply with the Court’s deadline for
effecting service and filing proof of service, the Court—
instead of summarily dismissing Barr’s action for failure to
comply with Rule 4 and the Court’s deadline—granted Barr a
second

extension

of

time

to

serve

the

sole

remaining

individual Defendant, Mole. (Doc. # 100). The Court also
provided another in-depth description on the requirements of
Rule 4 in an effort to explicate what Rule 4 required of Barr.
(Id.).
Two interlocutory appeals were then taken by Barr from
a litany of Court Orders. (Doc. ## 111, 132). Both appeals
were dismissed sua sponte by the Eleventh Circuit for lack of
jurisdiction. (Doc. ## 136, 140). Before Barr filed the
aforesaid interlocutory appeals, the Defendants had again
filed motions to dismiss the complaint. (Doc. ## 106, 107).
Because the filing of a notice of appeal is an event of
jurisdictional

significance,

Green

3 

Leaf

Nursery

v.

E.I.

DuPont de Nemours & Co., 341 F.3d 1292, 1309 (11th Cir. 2003)
(internal citations omitted), the Court deferred ruling on
the motions to dismiss the third amended complaint. (Doc. #
117). Once jurisdiction reinvested with this Court following
the dismissal of Barr’s appeals by the Eleventh Circuit, Barr
was instructed to respond to the pending motions to dismiss
by February 20, 2017. (Doc. # 142). Upon his motion, Barr was
granted an extension of time to respond to the motions to
dismiss; the new deadline was set as March 2, 2017. (Doc. #
156).
Rather

than

actually

responding

to

the

motions

to

dismiss, Barr filed what was in effect a motion for leave to
file a fourth amended complaint. (Doc. # 165). Attached to
the construed motion for leave to file a fourth amended
complaint was Barr’s proposed fourth amended complaint. (Doc.
# 165-1). The proposed fourth amended complaint named only
“One Touch Direct, LLC, a Florida Limited Liability Company
(“OTD”),

DPG

Employee

Leasing,

LLC,

a

foreign

limited

liability company (“DPG”), and AT&T Services, Inc., a foreign
corporation (“AT&T”)” as defendants. (Id. at 1). Furthermore,
the proposed fourth amended complaint did not once mention
Mole or Reed. (Id.). In spite of the Defendants’ objection to
Barr’s request for leave to file a fourth amended complaint,

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the Court granted Barr leave to do so. (Doc. # 166). Barr was
instructed to file the proposed fourth amended complaint as
his fourth amended complaint by March 6, 2017, and, in light
of the allowance for a fourth amended complaint, the Court
denied the Defendants’ motions to dismiss as moot. (Id.).
Rather
himself

than

proposed,

filing

the

fourth

Barr

filed

his

amended

“Response

complaint
to

he

Defendant

Joseph Mole’s Dispositive Motion to Dismiss Third Amended
Complaint” (Doc. # 167). Intermingled with his arguments as
to service of process, Barr requests two forms of relief:
hold that he complied with Rule 4 and order Mole to show cause
“why

the

record

does

not

illustrate

substitute

service

effected.” (Id. at 5, 15). A response to a motion, though, is
not the proper method for requesting relief from the Court.
M.D. Fla. L.R. 3.01(a). As such, to the extent the response
seeks relief, it is denied for failure to comply with Local
Rule 3.01(a).
In addition, the Court is left befuddled by Barr’s
filing. Indeed, given that the Court granted Barr leave to
file a fourth amended complaint, which notably does not name
Mole as a defendant, along with the Court’s denial of the
Defendants’ motions to dismiss as moot, the issue of service
of process as to Mole is of no consequence. Yet, after

5 

receiving the relief he requested—i.e., leave to file a fourth
amended complaint that did not name Mole as a defendant—Barr
filed a response to an already denied motion.
As demonstrated above and throughout the record, the
Court has been more than flexible with Barr, giving him chance
after chance to file a complaint that complies with the
Federal Rules of Civil Procedure. But, at some point, enough
is enough. This action has reached that point. Thus, Barr is
cautioned that the fourth amended complaint will be his final
opportunity to state a claim.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

To

the

Mole’s

extent

Barr’s

Dispositive

“Response

Motion

to

to

Defendant

Dismiss

Third

Joseph
Amended

Complaint” (Doc. # 167) requests relief, it is denied
for failure to comply with Local Rule 3.01(a).
(2)

Barr shall file his proposed fourth amended complaint by
March 6, 2017, as previously ordered (Doc. # 166).
DONE and ORDERED in Chambers in Tampa, Florida, this 3rd

day of March, 2017.

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