Jones-Bey v. Jpay Incorporated et al

Filing 51

ORDER withdrawing 30 Motion to Strike; granting 34 Motion for Leave to File; denying 42 Motion for Leave to File; granting 48 Motion to Strike, and Order Temporarily Staying Discovery and setting Briefing Schedule--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WALTER LEE JONESBEY,
Case No. 2:17-cv-12545
District Judge Avern Cohn
Magistrate Judge Anthony P. Patti

Plaintiff
v.
JPAY INC., RYAN
SHAPIRO, SECURUS
TECHNOLOGIES, INC.,
and RICK SMITH,
Defendants.
___________________________________/

ORDER (1) ADDRESSING SEVERAL MOTIONS (DEs 30, 34, 42, 48), (2)
DIRECTING THE CLERK OF THE COURT TO STRIKE CERTAIN
ITEMS (DEs 41-4, 43 & 45), (3) SETTING A BRIEFING SCHEDULE WITH
CONTENT REQUIREMENTS, and (4) TEMPORARILY STAYING
DISCOVERY
Plaintiff Walter Lee Jones-Bey is currently incarcerated at the Michigan
Department of Corrections (MDOC) Earnest C. Brooks Correctional Facility
(LRF) in Muskegon Heights, Michigan.1 The allegations underlying his most
recent amended complaint concern difficulties he had following the April 2017
purchase and receipt of a JP5mini Tablet. (DE 23 ¶¶ 11-32.) Plaintiff names four

1

See www.michigan.gov/corrections, “Offender Search,” MDOC Number 235079
(last visited Feb. 5, 2019).
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Defendants and sets forth eight causes of action based upon the Magnuson-Moss
Warranty Act, Michigan’s Consumer Protection Act, Michigan’s Uniform
Commercial Code, conversion, fraudulent misrepresentation, and infliction of
mental distress. (DE 23 ¶¶ 33-77.) Plaintiff appears to offer both federal question
(28 U.S.C. § 1331) and diversity of citizenship (28 U.S.C. § 1332) as bases for
jurisdiction. (See DE 23 at 3 ¶¶ 9-10.)
Judge Cohn has referred this case to me for all pretrial matters. Currently,
there are four matters pending before the Court:
(1)

Plaintiff's October 22, 2018 motion (DE 30) to strike
Defendants' motion (DE 26) for an extension of time to file a
response to the amended complaint;

(2)

Defendants’ October 24, 2018 motion for leave to file a motion
to dismiss for lack of subject matter jurisdiction and/or to stay
or dismiss based on an arbitration provision (DE 34), regarding
which Plaintiff has filed a response (DE 39) and a corrected
response (DE 40), Defendants have filed a reply (DE 41), and
Plaintiff has filed a sur-reply (DE 43), along with an affidavit
(DE 45);

(3)

Plaintiff's December 18, 2018 motion for leave to file a surreply (DE 42), regarding which Defendants have filed a
response (DE 46); and,

(4)

Defendants’ January 10, 2019 motion (DE 48) to strike
Plaintiff’s affidavit (DE 45) in opposition to Defendants’
motion to dismiss for lack of subject matter jurisdiction (DE
34), regarding which Plaintiff has filed a response (DE 49).

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On February 5, 2019, the Court held a hearing, at which Plaintiff participated by
videoconference and defense counsel (attorney Patricia A. Stamler) appeared in
person.
Upon consideration, and consistent with the Court’s statements on the
record, all of which are incorporated herein by reference:
(1)

Plaintiff’s October 22, 2018 motion to strike (DE 30) is
DEEMED WITHDRAWN;

(2)

Defendants’ October 24, 2018 motion (DE 34) is GRANTED
to the extent it seeks leave to file a dispositive motion;

(3)

Plaintiff’s December 18, 2018 motion for leave to file a surreply (DE 42) is DENIED; and,

(4)

Defendants’ January 10, 2019 motion to strike (DE 48) is
GRANTED.

Accordingly, the Clerk of the Court is directed to STRIKE Plaintiff’s sur-reply
(DE 43) and Plaintiff’s affidavit (DE 45), as well as the affidavit of Gregory
Campbell (DE 41-4). In addition, the parties will abide by the following briefing
schedule and directives:
(1)

on or before Wednesday, March 20, 2019, Defendants shall
file either an answer to the most-recent amended complaint (DE
23) or a motion based on subject matter jurisdiction, compelling
arbitration, and/or for a dismissal under Fed. R. Civ. P. 12.
Defendants’ brief may be no longer than 30 pages in length and
must be in 14-point font. Defendants may attach one or more
affidavits to their motion. Should Defendants fail to timely file
either an answer or motion as described, they will be at risk of
default.
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(2)

on or before Friday, April 19, 2019, Plaintiff may file a
response to Defendants’ motion. Plaintiff’s brief may be no
longer than 30 pages in length and must be in 14-point font.
Plaintiff may attach one or more affidavits to his response.

(3)

on or before Friday, May 10, 2019, Defendants may file a
reply to Plaintiff’s response. Defendants’ brief may be no
longer than 10 pages and must be in 14-point font. Defendants
may not attach an affidavit to their reply.

The Court will strictly enforce these pages limits. Plaintiff will not be
permitted to file a sur-reply without prior leave of Court, and Plaintiff is cautioned
that the Court discourages sur-replies and is not likely to permit such a filing.
Moreover, the parties’ attention is drawn to the E.D. Mich. Local Rules,
particularly E.D. Mich. Local Rules 5.1 (“Filing of Papers”) and 7.1 (“Motion
Practice”), and to my Practice Guidelines, each of which may be accessed at
www.mied.uscourts.gov. In addition, the Court has extended the briefing page
limits as indicated above, as it requests case law – preferably binding – on the
following issues: (1) does the Sixth Circuit take the same approach to a motion to
dismiss based on subject matter jurisdiction as did the courts in McElmurray v.
Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007)
and Alabama v. PCI Gaming Auth., 15 F. Supp. 3d 1161, 1165 (M.D. Ala.
2014), aff'd, 801 F.3d 1278 (11th Cir. 2015), and, is it within the Court’s discretion
whether to decide the question on the pleadings alone, i.e., a facial attack versus a
factual attack; (2) the enforceability of an arbitration provision that is embedded
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within an electronic device and/or software; (3) use of the Magnuson-Moss
Warranty Act with less than $50,000 in damages for acquiring federal question
jurisdiction where the state law claims do not meet the $75,000 subject matter
jurisdiction threshold; and, (4) whether Plaintiff is entitled to recover emotional
distress damages under the Michigan Consumer Protection Act or any of his other
state law claims.
Finally, discovery is stayed until and unless Defendants fail to timely answer
or file the above-described motion. If Defendants opt to file an answer in lieu of
timely filing the above-described motion, then the stay of discovery will
automatically lift, and the discovery deadline will be Monday, July 22, 2019. If
Defendants timely file the above-described motion, then discovery is further
stayed, and the stay will automatically lift if this case survives the motion.
IT IS SO ORDERED.
Dated: February 6, 2019

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on February 6, 2019, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
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