D'OTTAVIO v. SLACK TECHNOLOGIES
Filing
46
MEMORANDUM OPINION & ORDER. Signed by Judge Noel L. Hillman on 10/7/2019. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GINO D'OTTAVIO,
individually and on behalf of
all others similarly
situated,
Plaintiff/CounterDefendant,
1:18-cv-09082-NLH-AMD
MEMORANDUM
OPINION & ORDER
v.
SLACK TECHNOLOGIES,
Defendant/CounterClaimant.
APPEARANCES:
PAUL JEFFREY BOND
MARK S. MELODIA
ZALIKA T. PIERRE
HOLLAND & KNIGHT LLP
2929 ARCH STREET
SUITE 800
PHILADELPHIA, PA 19104
On behalf of Defendant/Counter-Defendant
HILLMAN, District Judge
WHEREAS, Plaintiff, Gino D’Ottavio, filed a putative class
action alleging that Defendant, Slack Technologies, transmitted
dozens of unsolicited commercial text messages to Plaintiff on
Plaintiff’s cellular telephone, in violation of the Telephone
Consumer Protection Act(“TCPA”), 47 U.S.C. § 227 et seq., thereby
invading Plaintiff’s privacy; and
WHEREAS, Slack filed an answer to Plaintiff’s complaint
denying his claims and lodging a counterclaim, claiming that
Plaintiff abused a feature on Slack’s website to deliberately
send himself the texts at issue; and
WHEREAS, on April 15, 2019, the Court granted Plaintiff’s
motion to dismiss his claims against Slack, but denied without
prejudice Slack’s motion for sanctions, as well as Plaintiff’s
counsel’s motion to withdraw as counsel (Docket No. 36, 37); and
WHEREAS, on July 3, 2019, the Court granted Plaintiff’s
counsel’s motion to withdraw (Docket No. 45); and
WHEREAS, because Slack’s counterclaim remained pending for
separate adjudication, 1 in that same Order, the Court directed
1
The basis for subject matter jurisdiction over Plaintiff’s
complaint, which asserted a violation of federal law, is 28
U.S.C. § 1331. Because those claims have been dismissed, the
Court must determine whether it may exercise subject matter
jurisdiction over Slack’s counterclaims. See Barefoot
Architect, Inc. v. Bunge, 632 F.3d 822, 836 (3d Cir. 2011)
(other citation omitted) (explaining that “[g]enerally speaking,
the dismissal of the complaint will not preclude adjudication of
a counterclaim over which the court has an independent basis of
jurisdiction”); id. (citing Fed. R. Civ. P. 13(a)) (further
explaining had the defendants filed first, they could have
invoked § 1332 to bring their state law claims in federal court
in the first instance, and the plaintiff could have filed its
causes of action as counterclaims, but as things actually
transpired, the defendants were forced to file their state law
claims as compulsory counterclaims since they arose out of the
same “transaction or occurrence” as the plaintiff’s complaint).
Slack’s counterclaims arise under state law and arise out of the
same transaction or occurrence as Plaintiff’s claims. See id.
at 836 n.9 (citations omitted) (explaining that to be deemed
part of the same “transaction or occurrence” for Rule 13(a)
purposes, a claim need only bear a logical relationship to the
subject matter of the complaint). It appears that subject
2
that within 20 days, Plaintiff was to either (1) enter his
appearance pro se; 2 or (2) obtain new counsel; and
WHEREAS, to date, Plaintiff has failed to respond to the
Court’s Order, and has not otherwise contacted the Court;
THEREFORE,
IT IS on this
7th
day of
October
, 2019
ORDERED that Slack Technologies shall commence prosecution
of its claims against Plaintiff consistent with the Federal Rules
of Civil Procedure. 3
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
matter jurisdiction may continue under 28 U.S.C. § 1332(a)
because Plaintiff is a citizen of New Jersey and Slack is a
citizen of California. (Docket No. 1 at 3, Docket No. 6 at 11.)
2
Plaintiff’s counsel represents that Plaintiff has been
attending Rutgers Law School for several years, and although
counsel is not certain that Plaintiff is still attending law
school due to Plaintiff’s failure to communicate with them,
Plaintiff’s Facebook page currently lists him as attending law
school. (Docket No. 43-1 at 23.)
3
See, e.g., Fed. R. Civ. P. 55 (concerning when a party against
whom a judgment for affirmative relief is sought has failed to
plead or otherwise defend).
3
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