Jo Ann Howard and Associates, P.C. et al v. Cassity et al

Filing 1661

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant J. Douglas Cassitys Motion to Modify Order and Make Dismissal of Defendant Cassity with Prejudice and/or to Reinstate Doug Cassity as a Defendant Unless Brent Cassity Is Also Dismissed with P rejudice [ECF No. 1621] is GRANTED in part, and DENIED in part. The Court shall vacate its July 22, 2014 order [ECF No. 1618] granting Plaintiffs Motion for Dismissal without Prejudice of Complaint Against Defendant J. Douglas Cassity. In all other respects, Doug Cassitys Motion shall be denied. IT IS FURTHER ORDERED that Defendant Tyler Cassitys Amended Motion to Set Aside or Vacate the Dismissal of Defendant J. Douglas Cassity; Tyler Cassitys Opposition to J. Douglas Cassitys Motion to Dism iss with Prejudice; and Tyler Cassitys Joinder in Doug Cassitys Request to Vacate Dismissal [ECF No. 1629]; and Defendants Rhonda L. Cassitys and Rhonda L. Cassity, Inc.s Notice of Joinder in Co-Defendant Tyler Cassitys Amended Motion to Set Aside or Vacate the Dismissal of Defendant J. Douglas Cassity and Joinder in Defendant Doug Cassitys Request to Vacate Dismissal [ECF No. 1630] are DENIED, as moot.IT IS FURTHER ORDERED that Brent Cassitys Motion to Dismiss with Prejudice or in the Alternative to Grant Defendant Brent Cassity, Pro Se, Due Process Rights in Order that He Be Able to Defend Himself [ECF No. 1623] is DENIED. Signed by District Judge E. Richard Webber on September 5, 2014. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JO ANN HOWARD &
ASSOCIATES, P.C., et al.,
Plaintiffs,
vs.
J. DOUGLAS CASSITY, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 4:09CV01252 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant J. Douglas Cassity‟s (“Doug Cassity”)
“Motion to Modify Order and Make Dismissal of Defendant Cassity „with‟ Prejudice and/or to
Reinstate Doug Cassity as a Defendant Unless Brent Cassity Is Also Dismissed with Prejudice”
[ECF No. 1621]; “Defendant Tyler Cassity‟s Amended Motion to Set Aside or Vacate the
Dismissal of Defendant J. Douglas Cassity; Tyler Cassity‟s Opposition to J. Douglas Cassity‟s
Motion to Dismiss with Prejudice; and Tyler Cassity‟s Joinder in Doug Cassity‟s Request to
Vacate Dismissal” [ECF No. 1629]; Defendants Rhonda L. Cassity‟s and Rhonda L. Cassity,
Inc.‟s “Notice of Joinder in Co-Defendant Tyler Cassity‟s Amended Motion to Set Aside or
Vacate the Dismissal of Defendant J. Douglas Cassity and Joinder in Defendant Doug Cassity‟s
Request to Vacate Dismissal” [ECF No. 1630]; and Defendant Brent Cassity‟s “Motion to
Dismiss with Prejudice or in the Alternative to Grant Defendant Brent Cassity, Pro Se, Due
Process Rights in Order that He Be Able to Defend Himself” [ECF No. 1623].
This litigation arises out of proceedings instituted by the Texas Department of Insurance
1

in Travis County, Texas. Plaintiffs in this litigation include, among others, Jo Ann Howard and
Associates, who is acting as Special Deputy Receiver (“SDR”) for three entities, National
Prearranged Services, Inc. (“NPS”), Lincoln Memorial Life Insurance Company, and Memorial
Service Life Insurance Company.
On May 3, 2012, Plaintiffs filed a Third Amended Complaint (“TAC”) in this matter,
asserting a wide variety of claims against various defendants, including, but not limited to, claims
for violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§
1961-1968. The TAC originally named over forty defendants, with varying degrees of alleged
involvement in what Plaintiffs characterize as a scheme to defraud individual consumers and
funeral homes in the sale of NPS‟s pre-need funeral contracts. Six of the defendants named in
this matter, including Doug Cassity and Brent Cassity, were prosecuted for a variety of
fraud-based crimes in a parallel criminal case. Doug Cassity and Brent Cassity pleaded guilty to
charges in the parallel case, and are presently serving terms of imprisonment for the criminal
charges arising out of the circumstances of this civil matter.
On July 21, 2014, Plaintiffs filed, pursuant to Federal Rule of Civil Procedure 41(a)(2),
“Plaintiffs‟ Motion for Dismissal without Prejudice of Complaint against Defendant J. Douglas
Cassity” [ECF No. 1617]. In their dismissal motion, Plaintiffs explained they were seeking
voluntary dismissal of their claims against Doug Cassity, because in the interim, since they filed
their TAC, a $435,000,000 restitution order had been entered against Doug Cassity in the parallel
criminal case, and the SDR is named as the primary victim to receive restitution payments.
Plaintiffs further asserted that representations by Doug Cassity indicated he would be financially
unable to pay even a fraction of the award, and they claimed costly and time-consuming
2

challenges relating to Doug Cassity‟s access to case information would only increase through the
remainder of discovery and trial in this matter. Plaintiffs contended dismissal would conserve
judicial resources by avoiding any additional rulings or motion practice prompted by Doug
Cassity‟s continued presence in the action; would simplify matters before the Court; and would
streamline the case for both pretrial and trial purposes by reducing the number of defendants
involved. Plaintiffs further contended dismissal would cause no prejudice to Doug Cassity or
any remaining defendants, as Doug Cassity has not filed any summary judgment motions, has not
been served with any discovery directed at him, has not initiated any discovery, has not asserted
any counter- or cross-claims, and has had no cross-claims asserted against him. Plaintiffs stated
they were not seeking voluntary dismissal of their claims against Doug Cassity to avoid an
adverse decision, to seek a more favorable forum, or to gain any tactical advantage, as they will
continue to pursue their claims in this Court. The Court granted Plaintiffs‟ motion on July 22,
2014, dismissing, without prejudice, all claims asserted against Doug Cassity [ECF No. 1618].
Doug Cassity filed his “Motion to Modify Order and Make Dismissal of Defendant
Cassity „with‟ Prejudice and/or to Reinstate Doug Cassity as a Defendant unless Brent Cassity is
also Dismissed with Prejudice” on July 28, 2014 [ECF No. 1621], asking the Court to modify its
July 22nd Order to indicate the dismissal was with prejudice and to also include dismissal with
prejudice of all claims against Brent Cassity; or, alternatively, to restore Doug Cassity as a
defendant. Thereafter, Brent Cassity filed his “Motion to Dismiss with Prejudice or in the
Alternative to Grant Defendant Brent Cassity, Pro Se, Due Process Rights in Order that He Be
Able to Defend Himself” on July 31, 2014 [ECF No. 1623]. Another defendant in this matter,
Tyler Cassity, has filed “Defendant Tyler Cassity‟s Amended Motion to Set Aside or Vacate the
3

Dismissal of Defendant J. Douglas Cassity; Tyler Cassity‟s Opposition to J. Douglas Cassity‟s
Motion to Dismiss with Prejudice; and Tyler Cassity‟s Joinder in Doug Cassity‟s Request to
Vacate Dismissal” [ECF No. 1629]. Defendants Rhonda L. Cassity and Rhonda L. Cassity, Inc.
have filed a “Notice of Joinder in Co-Defendant Tyler Cassity‟s Amended Motion to Set Aside
or Vacate the Dismissal of Defendant J. Douglas Cassity and Joinder in Defendant Doug
Cassity‟s Request to Vacate Dismissal” [ECF No. 1630].
In his Motion to Modify, Doug Cassity states that he has not yet been served with a copy
of Plaintiffs‟ dismissal motion by mail, but that he informed Plaintiffs, by email on July 21,
2014, of his opposition to the motion unless the dismissal was with prejudice, and of his intent to
file a motion to that effect.
Doug Cassity asserts four reasons for dismissal with prejudice: 1) Plaintiffs have already
been awarded the $435,000,000 judgment they seek against him and Brent Cassity, and Plaintiffs
should not have the right to file another action against them; 2) dismissal provides the plaintiffs
the opportunity to file again and proceed against isolated, incarcerated defendants who will have
no chance at a fair trial, because they will no longer have the benefit of presenting their case with
a group of represented defendants; 3) dismissal is a waste of judicial resources, because, should
plaintiffs refile against indigent defendants such as Doug Cassity, motions filed in the present
matter will have to be filed again; and 4) dismissal without prejudice provides Plaintiffs, who
risk an adverse judgment with Doug Cassity‟s involvement in the case, a huge tactical advantage,
in that it denies Doug Cassity future access to evidence and the ability to provide his opinion to
family members.
In their Response to Doug Cassity‟s Motion, Plaintiffs object to his request for
4

modification as to Brent Cassity, contending Doug Cassity, as a disbarred attorney, cannot file
pleadings on behalf of another party [ECF No. 1626]. Plaintiffs urge the Court to reject Doug
Cassity‟s request to dismiss Brent Cassity, contending his argument is lacking in legal support.
The Court agrees that Doug Cassity may not assert a motion to dismiss or modify on behalf of
Brent Cassity, and accordingly will deny Doug Cassity‟s modification request as to Brent
Cassity. See, e.g., Heiskell v. Mozie, 82 F.2d 861, 863 (D.C. Cir. 1936) (only real party in
interest, or attorney at law may plead and manage action at law in court).
Plaintiffs contend the dismissal, without prejudice, of Doug Cassity was proper, because
further litigation against him makes little economic sense, as he concedes he will be unable to
pay the $435 million in restitution awarded in the parallel criminal case.1 Plaintiffs assert they
do not seek a more favorable forum, and further contend the dismissal simplified the matters
before the Court, as limiting the number of defendants served to streamline future proceedings.
They deny his dismissal secures them a tactical advantage or allows them to avoid an adverse
determination, noting they already have defeated two motions to dismiss filed by Doug Cassity,
and have established the viability of their claims against him.
Plaintiffs assert that Doug Cassity‟s prejudice-to-indigent-incarcerated-defendants
arguments “disregard that the mere possibility of a second lawsuit does not support dismissal
with prejudice” [ECF No. 1626 at 3]. They also claim the remaining defendants will suffer no
prejudice, because nothing prevents them from using other evidence to prove a facts narrative, or

1 Because Doug Cassity is asking this Court to reconsider a non-final order of dismissal, Plaintiffs, citing
Elder-Keep v. Asksamit, 460 F.3d 979, 984 (8th Cir. 2006), contend he must meet the high standard required by
Federal Rule of Civil Procedure 60(b) before relief may be granted, and they argue he has not properly alleged the
requisite exceptional circumstances. However, the Court finds Doug Cassity has adequately shown he did not have
a fair opportunity to argue this matter prior to entry of the dismissal order; thus, the Court will address the merits of

5

from calling Doug Cassity as a witness.
In his Motion, Brent Cassity asserts he:
has been rendered penniless as the result of Plaintiff and the US Government,
aided and abetted by Plaintiff. In addition to being destitute, this Defendant is
now incarcerated, and has no ability to defend himself unless this court appoints
an attorney with the skills necessary to understand the issues in this case and
prepare an adequate defense for Defendant. If the Court does not appoint an[]
attorney and charge it to the costs of this case or the US government, then this
Defendant asks the Court to dismiss this case.
[ECF No. 1623 at 1]. Brent Cassity further states he has not had the ability to participate in
depositions conducted in this matter, and has not been provided with copies of deposition
transcripts, documentary evidence, or deposition exhibits. He contends that, because the
Government has assigned a $435,000,000 award of restitution against him for the benefit of the
plaintiffs, the interests of judicial economy, basic fairness, and due process require his dismissal,
as Plaintiffs are attempting to obtain a double judgment against him based on the same set of
facts. Additionally, should the Court not dismiss him, Brent Cassity requests a habeas corpus
order that would allow him to attend trial and confront witnesses.
In their Response to Brent Cassity‟s Motion, Plaintiffs state they do not oppose Brent
Cassity‟s request, to the extent he asks to be remanded to the Court‟s custody to testify at trial
[ECF No. 1627]. In all other respects, however, they urge the Court to deny Brent Cassity‟s
Motion, arguing he has not shown that he is entitled to dismissal, or to appointment of counsel.
Plaintiffs, noting incarcerated parties have no right to attend depositions in civil cases, assert that,
even if Brent Cassity were entitled to attend depositions while incarcerated, he never asked to
attend or participate in the depositions, despite receiving notice when the depositions were being

his Motion to Modify.

6

conducted. They contend the civil rules do not require dismissal when a party is unable to
obtain or review transcripts or documents, and further claim that, although they sent forty-four
separate letters to Brent Cassity, advising that documents would be provided to every defendant
with a “standing order” for productions, and to other defendants upon request, he never
responded or requested to be added to the “standing order” list. Plaintiffs also claim
considerable evidentiary overlap exists between the parallel criminal proceeding and this matter,
and state Brent Cassity was provided substantial discovery in his criminal case. As to his
contention that the civil trial is needlessly duplicative and a waste of judicial resources, Plaintiffs
argue the civil damages are separate and distinct from the imposed criminal penalties, and they
are entitled to proceed to trial against him, because a civil damages award would not be
duplicative of Brent Cassity‟s criminal restitution.
Pursuant to Rule 41(a)(2), actions may be dismissed upon plaintiffs‟ request, only by
court order, and only upon terms the court considers proper. Fed. R. Civ. P. 41(a)(2). Unless
the order specifies otherwise, the dismissal is without prejudice. Id. The primary purpose of
this section of the rule is to prevent voluntary dismissals unfairly affecting the non-moving party.
Paulucci v. City of Duluth, 826 F.2d 780, 782 (8th Cir. 1987). Rule 41(a)(2) dismissals, after
answer, should be granted only where no other party will be prejudiced. Kern v. TXO Prod.
Corp., 738 F.2d 968,970 (8th Cir. 1984). However, “[c]ourts generally will grant dismissals
where the only prejudice the only prejudice the defendant will suffer is that resulting from a
subsequent lawsuit.” Paulucci, 826 F.2d at 782.
In determining whether to grant permission for a voluntary dismissal without prejudice
under Rule 41(a)(2), courts consider the following factors: 1) the defendant‟s effort and the
7

expense involved in preparing for trial; 2) excessive delay and lack of diligence exercised by the
plaintiff in his prosecution of the matter; 3) sufficiency of the plaintiff‟s explanation of need for
such a dismissal; and 4) the filing of a motion for summary judgment by a defendant. Id. at 783.
Courts also have identified categories of prejudice that might weigh in favor of denying a
motion for voluntary dismissal: 1) emotional and psychological trauma inherent in defending
another lawsuit; 2) prejudice caused by uncertainty over title to real property; and 3) lack of
justification for the requested dismissal. Id.
Examination of the record and the parties‟ filings in this matter reveals the parties have
variously taken somewhat inconsistent stances on the need for defendants‟ presence, or have
conducted themselves in a manner inconsistent with their current arguments. Doug Cassity now
opposes his dismissal without prejudice; however, he unsuccessfully petitioned for his dismissal
without prejudice in a motion he filed on February 28, 2014 [ECF No. 1433]. In their July 21,
2014 “Motion for Dismissal without Prejudice of Complaint Against Defendant J. Douglas
Cassity,” Plaintiffs informed the Court of the order naming the SDR as the primary victim to
receive restitution payments, referenced the costly and time-consuming challenges in ensuring
Doug Cassity‟s access to case information, and argued: “Continuing to litigate this matter
against [Doug] Cassity makes little economic sense in light of the fact that any recovery by
Plaintiffs would be duplicative and outweighed by the time and effort spent pursuing their
claims” [ECF No. 1617 at 2]. Yet, in their “Response to Defendant Brent Cassity‟s Motion to
Dismiss with Prejudice,” Plaintiffs argue: “Any civil damages are not duplicative of [Brent]
Cassity‟s criminal restitution and Plaintiffs are entitled to proceed to trial seeking these damages”
[ECF No. 1627 at 4]. The Court notes that Doug and Brent Cassity appear to be similarly, if not
8

not identically, situated as to Plaintiffs‟ stated reasons for dismissal of Doug Cassity, i.e.,
economic sense and conservation of judicial resources, with the only difference being the cost
and time challenges Plaintiffs have experienced related to Doug Cassity‟s access to case
information. Finally, although Brent Cassity now complains he has been denied the ability to
confront deposition witnesses and has not been provided with access to evidence, as noted by
Plaintiffs, Brent Cassity did not previously express any desire to attend noticed depositions, did
not ask for a standing order for document productions, and did not request productions after
notice of those available.
Three other named defendants, Tyler Cassity, Rhonda L. Cassity, and Rhonda L. Cassity,
Inc., have joined in Doug Cassity‟s request to vacate his dismissal, but oppose his motion for
dismissal with prejudice. Among other arguments, these defendants contend they will be
prejudiced by the dismissal, because without Doug Cassity‟s presence, they will not be able to
fully defend their positions. [ECF Nos. 1629, 1630].
After consideration of the parties‟ arguments and the record, the Court finds Plaintiffs‟
explanation for its desire to dismiss Doug Cassity is insufficient to overcome the prejudice
claimed by Doug Cassity and the other Cassity defendants. The Court will grant, in part,
“Defendant J. Douglas Cassity‟s Motion to Modify Order and Make Dismissal of Defendant
Cassity „with‟ Prejudice and/or to Reinstate Doug Cassity as a Defendant Unless Brent Cassity Is
Also Dismissed with Prejudice.” The Court shall vacate its July 22, 2014 order granting
“Plaintiffs‟ Motion for Dismissal without Prejudice of Complaint Against Defendant J. Douglas
Cassity.” In all other respects, Doug Cassity‟s Motion shall be denied. The Court will deny, as
moot, “Defendant Tyler Cassity‟s Amended Motion to Set Aside or Vacate the Dismissal of
9

Defendant J. Douglas Cassity; Tyler Cassity‟s Opposition to J. Douglas Cassity‟s Motion to
Dismiss with Prejudice; and Tyler Cassity‟s Joinder in Doug Cassity‟s Request to Vacate
Dismissal” [ECF No. 1629]; and Defendants Rhonda L. Cassity‟s and Rhonda L. Cassity, Inc.‟s
“Notice of Joinder in Co-Defendant Tyler Cassity‟s Amended Motion to Set Aside or Vacate the
Dismissal of Defendant J. Douglas Cassity and Joinder in Defendant Doug Cassity‟s Request to
Vacate Dismissal” [ECF No. 1630].
As to Brent Cassity‟s “Motion to Dismiss with Prejudice or in the Alternative to Grant
Defendant Brent Cassity, Pro Se, Due Process Rights in Order that He Be Able to Defend
Himself,” the Court finds Defendant Brent Cassity has not shown he is entitled to dismissal or to
appointment of counsel, and that his request to be remanded to the Court‟s custody to testify at
trial is not ripe for adjudication. The Court shall deny Brent Cassity‟s motion.
Accordingly,
IT IS HEREBY ORDERED that “Defendant J. Douglas Cassity‟s Motion to Modify
Order and Make Dismissal of Defendant Cassity „with‟ Prejudice and/or to Reinstate Doug
Cassity as a Defendant Unless Brent Cassity Is Also Dismissed with Prejudice” [ECF No. 1621]
is GRANTED in part, and DENIED in part. The Court shall vacate its July 22, 2014 order
[ECF No. 1618] granting “Plaintiffs‟ Motion for Dismissal without Prejudice of Complaint
Against Defendant J. Douglas Cassity.” In all other respects, Doug Cassity‟s Motion shall be
denied.
IT IS FURTHER ORDERED that “Defendant Tyler Cassity‟s Amended Motion to Set
Aside or Vacate the Dismissal of Defendant J. Douglas Cassity; Tyler Cassity‟s Opposition to J.
Douglas Cassity‟s Motion to Dismiss with Prejudice; and Tyler Cassity‟s Joinder in Doug
10

Cassity‟s Request to Vacate Dismissal” [ECF No. 1629]; and Defendants Rhonda L. Cassity‟s
and Rhonda L. Cassity, Inc.‟s “Notice of Joinder in Co-Defendant Tyler Cassity‟s Amended
Motion to Set Aside or Vacate the Dismissal of Defendant J. Douglas Cassity and Joinder in
Defendant Doug Cassity‟s Request to Vacate Dismissal” [ECF No. 1630] are DENIED, as
moot.
IT IS FURTHER ORDERED that Brent Cassity‟s “Motion to Dismiss with Prejudice
or in the Alternative to Grant Defendant Brent Cassity, Pro Se, Due Process Rights in Order that
He Be Able to Defend Himself” [ECF No. 1623] is DENIED.
So Ordered this 5th day of September, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

11