Zean v. Comcast Broadband Security, et al

Filing 85

ORDER denying without prejudice 83 Motion for Rule 60.02(c)(f) Hearing to Vacate or Modify the Courts Prior Resulting Orders Approving and Permitting Madgett Law LLC to Settle Claimants Settlements with Experian, Equifax, and Trans Union and the Validity of Respondents Liens Upon Claimants. (Written Opinion) Signed by Magistrate Judge Katherine M. Menendez on 7/9/2018. (KAT)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 0:17-cv-5117-WMW-KMM

Samuel Zean,
Plaintiff,
v.

ORDER

Comcast Broadband Security, LLC, et al.
Defendants.

This matter is before the Court for case management purposes and to address
several recent pro se filings from the Plaintiff, Samuel Zean.

The Temporary Stay
The stay of these proceedings put in place by the May 23, 2018 Order is no
longer in effect. The May 23rd Order stayed proceedings temporarily until the Court
ruled on the motion to withdraw filed by David Madgett, who was formerly counsel
for the Plaintiff, Samuel Zean. (Order (May 23, 2018) at 2–3, ECF No. 57.) The Court
has since granted Mr. Madgett’s motion to withdraw (Order (June 14, 2018), ECF
No. 74), and as a result this matter is no longer stayed.

Plaintiff’s Status Update
On June 26, 2018, Mr. Zean filed a letter addressed to the undersigned and to
United States Magistrate Judge Hildy Bowbeer, who is presiding over a separate
matter being litigated by Mr. Zean and his wife Eunice Zean: Zean v. Wells Fargo Bank,
N.A., 17-cv-3817 (JNE/HB) (the “Wells Fargo action”). 1 (Letter from Pl. to
Menendez, M.J. (June 26, 2018), ECF No.81.) Mr. Zean indicates that since
Mr. Madgett’s withdrawal was permitted, he has been attempting to reach a resolution
Mr. Madgett also represented Mr. Zean in the Wells Fargo action, but has since
been allowed to withdraw in that case as well.
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with the remaining defendants in this litigation. (June 26th Letter at 1.) He also states
that he reached out to several other lawyers attempting to obtain substitute counsel,
but none of the attorneys he consulted agreed to represent him in this litigation. (June
26th Letter at 2–3.) Mr. Zean’s letter fulfills his obligation in this case to provide an
update to the Court about his efforts to obtain substitute counsel. The Court
understands that Mr. Zean will be proceeding pro se and encourages him to continue
his efforts at reaching a resolution to this litigation with the remaining defendants.

Plaintiff’s Requests for Relief from Order or Judgment
In his June 26th letter, Mr. Zean also asserts that Mr. Madgett filed “fraudulent
documents,” refused to return records relating to both cases, unlawfully filed liens for
attorney’s fees, confiscated settlement funds, and “approved and/or signed
settlements orders regarding Equifax in September 2017, regarding Trans Union in
December 2017, and regarding Experian in February 2018 by means of
misrepresentations and deception.” (June 26th Letter at 1–2, 3–4.) Mr. Zean further
states: “Because of Mr. Madgett’s fraud and misrepresentations to these Courts, both
of these Courts have jurisdiction and should exercise their inherent power to vacate or
modify the resulting order or judgment.” (Id. at 4.) Mr. Zean raises these same
concerns about Mr. Madgett’s conduct in other documents he filed at the same time
he filed his June 26th letter. Mr. Zean filed a “Memorandum of Law in Support of
Claimants’ Motion of Rule 60.02(c)(f) Hearing,” and a motion entitled: “Motion and
Motion for Rule 60.02(c)(f) Hearing to Vacate or Modify the Court’s Prior Resulting
Orders Approving and Permitting Madgett Law LLC to Settle Claimants’ Settlements
with Experian, Equifax, and Trans Union and the Validity of Respondents’ Liens
Upon Claimants.” (Pl.’s Mem., ECF No. 75; Pl.’s Mot., ECF No. 83). The motion and
memorandum have also been filed in the Zeans’ case against Wells Fargo.
The Court cannot grant the Zeans any relief based on these filings. First, in this
case, the remaining defendants are Comcast Broadband Security, LLC, and Southwest
Credit Systems, L.P. The Zeans’ motion and memorandum bear the Court’s official
file number for both cases, but they are improperly captioned to reflect a dispute
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between Plaintiffs Samuel Zean and Eunice Zean and Defendants David Madgett and
Madgett Law, LLC. The memorandum also includes a “Prayer for Relief,” in which
the Zeans seek declaratory relief against Mr. Madgett and his law firm, statutory
damages, actual damages, and damages relating to Mr. Madgett’s alleged retention of
certain documents. (Pl.’s Mem. at 29.) It appears that the Zeans have a
misunderstanding about the scope of the claims in the currently pending lawsuit and
the appropriate forum in which to raise financial disputes with their former attorney.
David Madgett and Madgett Law, LLC, are not parties to this action. Mr. Zean has no
claims against Mr. Madgett or his law firm in this case. Mr. Zean has not attempted to
amend his complaint to add any such claims, and it is doubtful that the Court would
grant him permission to do so in this case because his dispute with Mr. Madgett is
quite distinct from his dispute with Comcast and Southwest Credit. This lawsuit is not
the appropriate vehicle to litigate a contract dispute, a legal malpractice claim, or even
an ethics complaint against Mr. Madgett or his law firm. To raise whatever legal claims
the Zeans may have against Mr. Madgett or his law firm, they will need to start a
separate case in an appropriate forum.
Second, the Zeans state that they filed a lawsuit against Mr. Madgett and his
law firm in state court, but it appears they want the Court’s assistance in adding a
claim for legal malpractice or professional negligence in that proceeding. They indicate
that to bring an action for “legal malpractice . . . in Minnesota Courts [they] may need
an attorney to sign an affidavit attesting or affirming that Mr. Madgett’s conducts
were legal malpractice and/or negligence, unless of course, a judge grants an
exception.” (Pl.’s Mem. at 3.) Accordingly, the Zeans ask the Court to “issue an order
in granting us the exception to represent ourselves to include and file legal malpractice
and negligen[ce] claims in our current lawsuit against Mr. Madgett[.]” (Id.) The Zeans
appear to be referencing Minn. Stat. § 544.42, which requires, in part, a party’s
attorney in a legal malpractice or negligence case, to make a certification that an expert
has reviewed the facts of the case and has the opinion that the defendant deviated
from the applicable standard of care, thereby causing the plaintiff’s injuries. Id.
§ 544.42, subd. 3(a)(1). However, “[t]he certification of expert review required under
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this section may be waived or modified if the court where the matter will be venued
determines, upon an application served with the commencement of the action, that
good cause exists for not requiring the certification.” Id. § 544.42, subd. 3(c). To the
extent the Zeans are asking this Court to make a ruling waiving or modifying the
certification requirement that applies in a pending state court case, the Court is unable
to do so. This Court is not the appropriate forum for the Zeans to raise such a
request, which should be directed at the state court that will preside over the Zeans’
dispute with Mr. Madgett and his law firm. If the Zeans are asking this Court to offer
an expert opinion that Mr. Madgett’s conduct deviated from the applicable standard
of care, the Court declines to do so.
Third, with respect to the settlements and orders of dismissal that have been
entered in the Zeans’ pending federal litigation, it is unclear from the pleadings
precisely what relief they are seeking. The District Court entered an Order in this case
dismissing all claims against Trans Union with prejudice based on the parties’
stipulation. (Order (Feb. 22, 2018), ECF No. 53; Stipulation, ECF No. 52.) In the
Wells Fargo action, the District Court entered an Order dismissing the Zeans’ claims
against Trans Union with prejudice on February 22, 2018. (Case No. 17-cv-3817, ECF
No. 60.) The District Court entered another Order in the Wells Fargo action on May
1, 2018, dismissing with prejudice the Zeans’ claims against Experian Information
Solutions, Inc., and Equifax Information Services, LLC. (Case No. 17-cv-3817, ECF
No. 71.) The Zeans have cited a state rule of civil procedure governing relief from a
final judgment or order, so their motion and memorandum could be construed as a
request, under Federal Rule of Civil Procedure 60(b), to have the dismissal orders
regarding Trans Union, Experian, and Equifax vacated or modified.2 In their motion,

The Zeans cite Minnesota Rule of Civil Procedure 60.02, which governs the
situations in which a court in the State of Minnesota will relieve a party from a final
judgment, order, or proceeding. (Pl.’s Mot. at 1.) This rule is similar to Federal Rule of
Civil Procedure 60(b). Because the Zeans are representing themselves, the Court reads
their submissions liberally. However, they are advised that in the future they should
refer to the Federal Rules of Civil Procedure and the Local Rules for the District of

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the Zeans ask the court to vacate or modify “the resulting order the Court previously
allowed and approved regarding [the Zeans’] settlements [that] Mr. Madgett and
Madgett Law LLC were allowed to settle with” those defendants. 3 (Pl.’s Mot. at 2 ¶ 2.)
It is difficult to imagine how the Court could grant that relief in a manner that would
not nullify the settlements that were entered with Trans Union, Equifax, and Experian
in these cases. Yet at the same time, the Zeans appear to contemplate that their
settlement agreements should remain in place, the dismissal orders should be
undisturbed, and the Court should take action only as to Mr. Madgett’s conduct.
Indeed, the Zeans ask that Mr. Madgett and his law firm be required to remit to the
Zeans the full amount of the settlement funds that Trans Union, Experian, and
Equifax paid. (Pl.’s Mem. at 21–22 (“We are entitled to recover 100% of our
settlement funds from Madgett Law LLC and Mr. Madgett because he intentionally
misled us about being in a contracted relationship with us by binding representation
agreements when he wasn’t.”).)
Because it is unclear what relief the Zeans are requesting in their motion and
memorandum, the motion is denied without prejudice. If the Zeans are seeking to
vacate the Orders from both cases dismissing their claims against Trans Union,
Equifax, and Experian, they may file a motion that clearly states that is what they want
the Court to do. They must also ensure that counsel for Trans Union, Equifax, and
Experian are served with any motion seeking that relief. As defendants who believe
they have fully resolved the claims the Zeans alleged against them, Trans Union,
Minnesota in this litigation because the Minnesota Rules of Civil Procedure generally
do not govern actions in federal court.
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Although the Zeans’ submissions seem to suggest that the Court approved of
the settlements, in this case the Court was not involved with the resolution of the
dispute between the Zeans and Trans Union. The Court’s dismissal order in this case
followed the filing of a stipulation of dismissal, and any details about the settlement
reached with Trans Union only surfaced when the Zeans’ dispute with Mr. Madgett
over distribution of the settlement funds was raised in connection with Mr. Madgett’s
motion to withdraw. It appears that the Zeans’ dispute with Experian, Equifax, and
Trans Union in the Wells Fargo action were also resolved without any court
involvement in settlement negotiations.
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Equifax, and Experian have a right to be heard if the Zeans seek to vacate or modify
those dismissal orders.
If instead the Zeans are asking the Court to require Mr. Madgett to disburse
settlement funds to them and remove liens he and his law firm have placed on their
property, such claims are not properly part of this litigation. As explained above, if the
Zeans believe Mr. Madgett or his firm owe them money based on breach of a
contract, legal malpractice, or misrepresentations, those claims will need to be litigated
in a different proceeding.
Based on the foregoing, IT IS HEREBY ORDERED THAT:
1. This action is no longer stayed.
2. Mr. Zean, Comcast Broadband Security, LLC, and Southwest Credit Systems,
L.P., are encouraged to continue any efforts to resolve what is left of this case
without the need for further intervention by the Court.
3. Mr. Zean’s Motion and Motion for Rule 60.02(c)(f) Hearing to Vacate or
Modify the Court’s Prior Resulting Orders Approving and Permitting Madgett
Law LLC to Settle Claimants’ Settlements with Experian, Equifax, and Trans
Union and the Validity of Respondents’ Liens Upon Claimants (ECF No. 83)
is DENIED WITHOUT PREJUDICE.
Date: July 9, 2018

s/Katherine Menendez
Katherine Menendez
United States Magistrate Judge

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