D'OTTAVIO v. SLACK TECHNOLOGIES

Filing 54

MEMORANDUM OPINION & ORDER denying without prejudice 48 Motion for Summary Judgment; Plaintiff Gino D'Ottavio shall show cause, within 20 days of today, as to why his answer to Defendant's counterclaims should not be stricken and default judgment entered against him. Signed by Judge Noel L. Hillman on 7/9/2020. (tf, n.m.)

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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 Slack Technologies
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

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denying his claims and lodging counterclaims, claiming that
Plaintiff abused a feature on Slack’s website to deliberately
send himself the texts at issue; 1 and
WHEREAS, on July 9, 2018, Plaintiff, through his prior
counsel, filed an answer to Slack’s counterclaims, denying
Slack’s claims; 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 counterclaims remained pending for
separate adjudication, 2 in that same Order, the Court directed

1

Slack alleges that this feature was designed to allow desktop
users of Slack to download and use a version of the application
on their mobile devices, but instead Plaintiff abused the
feature 1,590 times to send himself 1,590 texts to trump up his
baseless TCPA lawsuit. Slack alleges that each text was an act
of fraud by Plaintiff, intended to manufacture “injury” and a
baseless demand for recovery. Slack alleges that Plaintiff is
well-versed in the TCPA, having brought five separate actions
under the TCPA against a range of companies before suing Slack.
Slack has alleged counterclaims against Plaintiff for wanton and
willful misconduct, common law fraud, breach of express
contract, and breach of the implied covenant of good faith and
fair dealing.
2

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
2

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that within 20 days, Plaintiff was to either (1) enter his
appearance pro se; 3 or (2) obtain new counsel; and
WHEREAS, because Plaintiff failed to respond to the Court’s
Order, on October 7, 2019, the Court directed Slack to commence
prosecution of its claims against Plaintiff consistent with the
Federal Rules of Civil Procedure; and
WHEREAS, in December 2019, Slack filed a motion for summary

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
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.)
3

In their motion to withdraw, Plaintiff’s counsel represented
that Plaintiff had been attending Rutgers Law School for several
years, and although counsel was not certain that Plaintiff was
still attending law school due to Plaintiff’s failure to
communicate with them, Plaintiff’s Facebook page currently
listed him as attending law school. (Docket No. 43-1 at 23.)
3

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judgment 4 and two letters with the Court, all of which detailed
Plaintiff’s failure to respond to all of Slack’s discovery
requests and Plaintiff’s failure to appear at a scheduled
deposition (Docket No. 48-53); and
WHEREAS, according to Fed. R. Civ. P. 37(b)(2), when party
fails to obey an order to provide or permit discovery the court
may strike a pleading in whole or in part, Fed. R. Civ. P.
37(b)(2)(A)(iii), and render a default judgment against the
disobedient party, Fed. R. Civ. P. 37(b)(2)(A)(vi); and
WHEREAS, in addition to Plaintiff failing to respond to this
Court’s October 7, 2019 Order, Plaintiff has (1) failed to
respond to Slack’s discovery requests pursuant to Fed. R. Civ. P.
26 and 36, 5 both of which impose an affirmative duty on the

4

Even though Plaintiff previously appeared in the action through
counsel, and counsel filed an answer to Slack’s counterclaims,
because counsel has been relieved and Plaintiff has not obtained
new counsel or entered his appearance pro se, Plaintiff’s status
is akin to being in default. See 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) (emphasis
added). Consequently, a more appropriate mechanism for Slack to
prosecute its claims against Plaintiff would be Fed. R. Civ. P.
55 rather than Fed. R. Civ. P. 56. Regardless, however, of that
procedural issue, the Court finds that Fed. R. Civ. P.
37(b)(2)(A) and the assessment of the Poulis factors to be the
most appropriate course under the circumstances here.
5

Specifically with regard to Fed. R. Civ. P. 36(a)(3), “A matter
is admitted unless, within 30 days after being served, the party
to whom the request is directed serves on the requesting party a
written answer or objection addressed to the matter and signed
by the party or its attorney.”
4

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parties to participate in discovery, and (2) failed to respond to
the Court’s discovery order directing Plaintiff to provide
computers and cell phones for forensic examination (Docket No.
21, Docket No. 36 at 9-10); and
WHEREAS, it appears to the Court that the remedies provided
by Fed. R. Civ. P. 37(b)(2)(A)(iii) and (iv) for Plaintiff’s
disregard of his discovery obligations and this Court’s orders
may be warranted;
Accordingly,
IT IS on this

9th

day of

July

, 2020

ORDERED that Plaintiff Gino D’Ottavio shall show cause,
within 20 days of today, as to why his answer to Defendant’s
counterclaims should not be stricken and default judgment entered
against him; and it is further
ORDERED that if Plaintiff responds to this Order to Show
Cause, Defendant shall have 15 days to file a response; and it is
further
ORDERED that if Plaintiff fails to respond to this Order to
Show Cause, the Court will assess the relevant factors under
Poulis v. State Farm Casualty Co., 747 F.2d 863 (3d Cir. 1984) 6 to

6

Where a sanction may “deprive a party of the right to proceed
with or defend against a claim,” courts must weigh the six
factors enunciated by the Third Circuit in Poulis v. State Farm
Casualty Co., 747 F.2d 863, 870 (3d Cir. 1984) (explaining that
the relevant “factors should be weighed by the district courts
5

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determine whether striking Plaintiff’s answer to Defendant’s
counterclaims and entering default judgment against him is
proper; 7 and it is further
ORDERED that Defendant’s motion for summary judgment [48]
be, and the same hereby is, DENIED WITHOUT PREJUDICE; 8 and it is
finally
ORDERED that the Clerk of the Court shall mail this Order to
Plaintiff’s last known address: 38 Chancellor Park Drive, Mays
Landing, NJ 08330.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

in order to assure that the ‘extreme’ sanction of dismissal or
default is reserved for the instances in which it is justly
merited”).
7

See Linwood Trading Ltd v. American Metal Recycling Services,
2017 WL 2825934, at *1 (D.N.J. 2017) (where, after the court
granted defendant’s counsel’s motion to withdraw, defendant
failed to obtain new counsel, failed to respond to the court’s
discovery orders, and failed to respond to the court’s order to
show cause as to why defendant’s answer should not be stricken
and default judgment entered against it pursuant to Fed. R. Civ.
P. 37(b)(2)(A)(iii) and (iv), the court assessed the Poulis
factors, finding good cause existed to strike defendant’s answer
and enter default judgment against it in plaintiff’s favor).
8

If Plaintiff fails to respond to the Court’s Order to Show
Cause, and the Court determines that default judgment is
warranted, Defendant may refile the relevant content of its
motion for summary judgment, along with a calculation of
damages, in support of the entry of final judgment. The Court
notes that a calculation of damages must be supported by the law
governing Defendant’s counterclaims and other documentary
evidence.
6