Best v. Mobile Streams, Inc. et al

Filing 196

ORDER that plaintiff's MOTION to withdraw documents 189 is Granted and documents 185 187 are Stricken from the Record; plaintiff's 184 MOTION to strike AT&T's motion for a Court order is Denied; defendant AT&T's 181 MOTION for a Court order is Granted and plaintiff is Ordered to comply with FRCP 5(b)(1) in all future filings; and plaintiff's 172 letter to the District Judge is Stricken. Signed by Magistrate Judge Karen L. Litkovitz on 6/16/2014. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

BLAKE BEST,
Plaintiff,

Case No. 1: 12-cv-564
Beckwith, J.
Litkovitz, M.J.

v.
AT&T, INC., et al.,
Defendants.

ORDER

This matter is before the Court on: (1) plaintiffs letter to District Judge Beckwith (Doc.
172) and defendant AT&T Mobility LLC's (AT&T) response thereto (Doc. 183); (2) AT&T's
motion for a Court order requiring plaintiff to comply with Fed. R. Civ. P. 5(b)(1) (Doc. 181),
plaintiffs joint response in opposition and motion to strike AT&T's motion for a court order
(Doc. 184), plaintiffs amended joint response in opposition and motion to strike AT&T's
motion for a court order (Doc. 185), AT&T's reply memorandum (Doc. 186), and plaintiffs surreply memorandum (Doc. 187); and (3) plaintiffs motion to strike his amended joint response in
opposition and motion to strike and his sur-reply, Docs. 185 and 187, respectively (Doc. 189).
The Court will first address AT&T's motion for a Court order.
AT&T moves for a Court order requiring plaintiff to comply with Fed. R. Civ. P. 5(b)(1)
when serving his filings on defendants. Rule 5(b)(1) provides that "[i]f a party is represented by
an attorney, service under this rule must be made on the attorney unless the court orders service
on the party." Fed. R. Civ. P. 5(b)(1). AT&T maintains that despite the appearance of attorneys
on behalf of defendants, plaintiff continues to serve his filings in this matter on the registered

agent for defendants, 1 The Corporation Trust Co. Counsel for AT&T represents that he
contacted plaintiff via email on April 17, 2014, to request that plaintiff no longer serve filings in
this manner as filing through the Court's case management and electronic case filing (CM/ECF)
system was sufficient. A copy ofthis email is attached to AT&T's motion. (Doc. 181, Ex. 1,
April 17, 2014 email). AT&T asserts that despite this request, plaintiff continued to serve
subsequent filings on defendants' registered agent in violation ofFed. R. Civ. P. 5(b)(1). (Doc.
181 at 2, citing Doc. 171 at 14, Doc. 172 at 3, Doc. 175 at 9, Doc. 176 at 4, Doc. 179 at 8, Doc.
180 at 4) (certificates of service from plaintiff's filings from April 18 to May 7, 2014, relflect that
service of these filings was made on defendants' registered agent in Wilmington, Delaware).
AT&T asks that the Court order plaintiff to comply with Fed. R. Civ. P. 5(b)(1) and to no longer
serve his filings on defendants' registered agent as this creates unnecessary costs and annoyance.
(Doc. 181 at 2).
Plaintiffhas filed a "reply motion to strike [AT&T's Motion]" (Doc. 184); an amended
"reply motion to strike [AT&T's Motion]" (Doc. 185); and a "surreply to [AT&T's] opposition
motion amended plaintiffs' (sic) reply motion to strike [AT&T's motion]" (Doc. 187). 1n
response to this Court's May 14, 2014 Order cautioning plaintiff that, among other things, his
practice of filing amendments to motions without explaining the amendment may result in the
imposition of sanctions due to its burden on the Court's limited resources, plaintiff filed a motion
to strike his amended filing and sur-reply (Doc. 189). The Court construes this motion as
plaintiff's motion to withdraw the designated filings. 2 Plaintiff's motion to withdraw (Doc. 189)

1

AT&T and AT&T, Inc. are both named as defendants in plaintiff's third amended complaint, see Doc.
140, but the instant motion is brought by AT&T only.
2
A motion to withdraw filings is the proper mechanism where a party seeks to remove its own filings from
the record.

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is GRANTED. Accordingly, only plaintiff's initial response (Doc. 184) will be considered in
ruling upon AT&T's motion for a Court order.
Plaintiff responds to AT&T' s motion for a Court order by moving to strike the motion.
Plaintiff asserts that he has not purposefully disregarded Fed. R. Civ. P. 5(b )(1) and that any
failure to properly serve AT&T is the result of his status as a pro se litigant. Plaintiff further
asserts that AT&T failed to provide him notice under Fed. R. Civ. P. 11 and disputes that he
received the April 17, 2014 email attached to AT&T' s motion containing defense counsel's
request to plaintiff to alter his method of serving documents. Plaintiff maintains that AT&T' s
motion is therefore improper and moves for it to be stricken in its entirety. (Doc. 184 at 2-5).
Insofar as plaintiff contends that AT&T's motion should be stricken because AT~T did
not comply with the notice requirements of Fed. R. Civ. P. 11, this argument misapprehends the
basis of AT&T' s motion. Rule 11 permits the imposition of sanctions, "after notice and a
reasonable opportunity to respond," where the Court finds that a party has made incorrect or
improper representations to the Court. Fed. R. Civ. P. 11(b), (c). Here, however, AT&T does
not assert that plaintiff has violated Rule 11 (b) and AT&T has unequivocally represented that it
seeks no sanction against plaintiff at this time aside from a Court order requiring plaintiff to
serve his filings on defense counsel. See Doc. 181 at 2. The Court therefore finds that AT&T's
motion was not brought under Fed. R. Civ. P. 11 and its notice provisions are therefore
inapplicable. Consequently, plaintiff's motion to strike AT&T's motion (Doc. 184) is DENIED.
Turning to the merits of AT&T's motion, the Court's review of the record establishes that
counsel appeared on behalf of AT&T and AT&T, Inc. on April9, 2014. (Doc. 164).
Consequently, any filings made by plaintiff after April 9, 2014, should have been served on
defense counsel. See Fed. R. Civ. P. 5(b)(1). Despite this requirement and plaintiff's access to

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the CM/ECF system, plaintiff continued to serve paper copies of filings on defendants' registered
agent in Delaware. See Doc. 171 at 14, Doc. 172 at 3, Doc. 175 at 9, Doc. 176 at 4, Doc. 179 at
8, Doc. 180 at 4. Plaintiff concedes that he has continued to serve defendants' registered agent
with his filings, but asserts that he has not violated Fed. R. Civ. P. 5(b)(1) because his electronic
filings through the CM/ECF system have properly been served on defense counsel. Taking into
consideration his pro se status, the Court gives plaintiff the benefit of the doubt and finds that his
failure to properly serve filings on defense counsel in compliance with Fed. R. Civ. P. 5(b)(l)
was not purposeful. However, the undersigned also finds that AT&T's request for a Court order
is reasonable as plaintiffs practice of serving paper copies on its registered agent likely imposes
unnecessary costs on AT&T in, minimally, the time expended communicating with the registered
agent. Consequently, AT&T's motion (Doc. 181) is GRANTED. Plaintiff is hereby

ORDERED to comply with Fed. R. Civ. P. 5(b)(l). All future filings by plaintiff SHALL be
served only on defense counsel- not on defendants' registered agent in Delaware- in a manner
that complies with the Federal Rules of Civil Procedure. The Court will now address plaintiffs
letter to the District Judge.
On April 24, 2014, plaintiff filed a letter in this matter addressed to the District Judge

wherein he expresses concern about the propriety of Dan B. Miller serving as defense counsel.
Plaintiffs concern is based on Mr. Miller's prior experience as a law clerk with the Honorable
John D. Holschuh of the United States District Court for the Southern District of Ohio. Plaintiff
asserts that while Mr. Miller's law firm website profile represents his clerkship experielliCe, it
fails to identify that Judge Holschuh passed away in 2011. According to plaintiff, this omission
"gives the appearance [that defense counsel] may have some advantage with the Court.... "
(Doc. 172 at 1). Plaintiff asserts that his "research" reveals that attorneys do not often mention

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prior federal clerkships in their website profiles and he expresses discomfort with this purported
appearance of impropriety. (Doc. 172).
Plaintiffs letter to the Court is not permitted by the Local Rules. Local Rule 7 .2(c)
provides:

Correspondence with the Court. Letters to the Court are not permitted unless
(1) requested by the Court in a specific matter, or (2) advising the Court of the
settlement of a pending matter. All other written communications must be by way
of formal motion or memorandum submitted in compliance with these rules.

See S.D. Ohio Civ. R. 7.2(c). Plaintiffs letter was not requested by the Court nor does it pertain
to settlement. Consequently, plaintiffs letter is not permitted under the Local Rules and it is
hereby STRICKEN from the record. 3
In conclusion:
1) Plaintiffs motion to withdraw Documents 185 and 187 (Doc. 189) is GRANTED and
Documents 185 and 187 are STRICKEN FROM THE RECORD;
2) Plaintiffs motion to strike AT&T's motion for a Court order (Doc. 184) is DENIED;
3) AT&T's motion for a Court order (Doc. 181) is GRANTED and plaintiff is ORDERED
to comply with Fed. R. Civ. P. 5(b)(l) in all future filings; and
4) Plaintiffs letter to the District Judge (Doc. 172) is STRICKEN.

IT IS SO ORDERED.

~~-/

Date:--=+t~J,/;~r,,f--LU-..L<f_

~c­

Karen L. Litkovitz
United States Magistrate Judge

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The Court declines to provide an advisory opinion as to the propriety of Mr. Miller's representation of
defendants given his prior clerkship experience. However, the undersigned notes that Courts in this District view
motions for attorney disqualification "with extreme caution for they can be misused as a technique of harassment."
Kitchen v. Aristech Chemical, 769 F. Supp. 254,257 (S.D. Ohio 1991) (quoting Panduit Corp. v. All States Plastic
Mfg. Co., 744 F.2d 1564, 1577 (Fed. Cir. 1984)) (internal quotations omitted).

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