Lucas v. Jolin et al

Filing 104

DECISION AND ENTRY PARTIALLY ADOPTING 101 REPORT AND RECOMMENDATIONS. Plaintiff's motion for contempt (Doc. 95) is DENIED; The U.S. Marshal shall deliver personal service of the following documents upon the registered agent for Waycross South Properties, LLC: a) a copy of the subpoena issued to Waycross South Properties, LLC on June 10, 2016 (Doc. 87-1); b) a copy of magistrate judge's October 6, 2016 order to compel (Doc. 90); c) a copy of the magistrate judge's most recent rep ort and recommendations (Doc. 101); and d) a copy of this Order; Plaintiff's ex parte motion for writ of garnishment (Doc. 99) is GRANTED. The magistrate judge is instructed to effectuate service of the writ in accordance with Ohio law; Plaintif f's amended motion for discovery in aid of execution of judgment (Doc. 100) is GRANTED. TransUnion, Equifax Inc., and Experian Information Solutions Inc. are ORDERED to disclose to Plaintiff any credit report they possess for judgment debtor Sha wn Wolmuth; Plaintiff's motion for ruling on his objections to the report and recommendations (Doc. 103) is DENIED AS MOOT. Signed by Judge Timothy S. Black on 6/5/17. (gs) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
VINCENT LUCAS,

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Plaintiff,
vs.
AURELIO JOLIN, et al.,
Defendants.

Case No. 1:15-cv-108
Judge Timothy S. Black
Magistrate Judge Stephanie K. Bowman

DECISION AND ENTRY
PARTIALLY ADOPTING THE REPORT AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 101)
I.

INTRODUCTION

This case is before the Court pursuant to the Order of General Reference in the
United States District Court for the Southern District of Ohio Western Division to United
States Magistrate Judge Stephanie K. Bowman. Pursuant to such reference, the
Magistrate Judge reviewed the pleadings filed with this Court and, on January 24, 2017,
submitted a Report and Recommendations. (Doc. 101). Petitioner filed objections to the
Report and Recommendations on February 7, 2017. (Doc. 102).
Plaintiff is a serial pro se litigant who has filed several cases in this district seeking
judgments against various individuals and corporate entities alleging that he has been the
recipient of unauthorized telemarketing phone calls in violation of the Federal Telephone
Consumer Protection Act and related Ohio law. Through his efforts, Plaintiff has
acquired judgments against several parties across his multiple cases totaling tens of
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thousands of dollars, although many of these awards have come through default
judgments. In this case, Plaintiff has won two default judgments that are relevant for
purposes of evaluating the magistrate judge’s report and recommendations: a default
judgment against Defendant Kevin Calvin in the amount of $22,800 with costs (Doc. 38)
and a default judgment against Defendants Shawn Wolmuth and Premium Outsourced
Solutions, Inc. for a total amount of $45,600 with costs (Doc. 89) 1.
The magistrate judge’s report and recommendations outlines a recommended
disposition for three motions filed by Plaintiff and currently pending in this case:
1) Plaintiff’s motion for contempt filed November 16, 2016 (Doc. 95), 2) Plaintiff’s ex
parte motion for writ of garnishment filed January 11, 2017 (Doc. 99), and 3) Plaintiff’s
amended motion for discovery in aid of execution of judgment filed January 12, 2017
(Doc, 100). The Court will address each of these motions in turn.
II.
A.

ANALYSIS

Plaintiff’s motion to compel

Plaintiff’s first motion is a motion for contempt filed against nonparty Waycross
South Properties, LLC (“Waycross”). (Doc. 95). Waycross leases commercial office
space in Cincinnati, Ohio, and at one time leased space to Defendant Kevin Calvin. As
part of his efforts to collect on his default judgment against Defendant Calvin, Plaintiff
issued a subpoena to Waycross on June 10, 2016 seeking various information about
Calvin, including any lease application forms filled out by Calvin, Calvin’s last known

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The burden of this $45,600 default judgment is shared with Defendant Aurelio “Victor” Jolin.
(Doc. 89).
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address and telephone number, Calvin’s social security number, and more. (Doc. 87-1, at
3). Waycross did not respond to the subpoena, and Plaintiff filed a motion to compel on
August 26, 2016 asking the Court to both compel Waycross to respond and to order a
sanction requiring Waycross to pay Plaintiff $300 plus $50 for each day until compliance
with the subpoena. (Doc. 87).
The magistrate judge issued an Order on October 6, 2016 granting Plaintiff’s
motion to compel in part. (Doc. 90). The Order compelled Waycross to respond to the
subpoena by October 20, 2016, but issued no sanctions. (Id. at 9). The subpoena was
reissued via mail to the P.O. Box registered to Waycross’s statutory agent and a second
copy was sent to Waycross’s corporate address.
Waycross has yet to respond to the subpoena. Plaintiff filed a motion for
contempt against Waycross on November 16, 2016. In that motion, Plaintiff represented
that he personally spoke with whom he believed to be Waycross’s agent on the phone,
and that the agent indicated that Waycross would not be honoring the subpoena, stating “I
am not interested in dealing with you!” (Doc. 95, at 1). Plaintiff’s motion reiterated his
request for a daily fine to be issued against Waycross in order to “coerce obedience,”
citing previous cases where this Court and others had imposed similar sanctions. (Id. at
3).
The magistrate judge’s report and recommendations recommends that Plaintiff’s
motion for contempt against Waycross be denied. The report and recommendations
expressed four “serious concerns” regarding the issuance of a contempt Order and/or
sanctions: (1) the contempt enforcement of a subpoena against a non-party that was never
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personally served; (2) the redundant nature of the information sought from this particular
non-party in light of a subpoena previously served upon third party TransUnion; (3) the
general prohibition against allowing post-judgment discovery of third parties to turn into
“a means of harassment” of the non-party; (4) general principles of proportionality
applied to this case. (Doc. 101, at 9). The Court agrees with the magistrate judge’s
analysis, and is particularly concerned by the harassment and proportionality issues raised
by the report and recommendation.
Plaintiff’s objections argue that Waycross is in fact in violation of a Court order,
and that his attempts to see that Order enforced cannot logically be viewed as
“harassment.” Plaintiff further argues that his request for daily fines is fair recompense
for the many hours he has spent on motions resulting from Waycross’s refusal to comply
with a subpoena. (Doc. 102, at 4). The Court does not agree. Plaintiff has personally
visited the statutory agent of Waycross (Doc. 87, at 2) and telephoned a man believed to
be the same individual (Doc. 95, at 1) seeking answers about the subpoena. Plaintiff has
a right to the information sought in the subpoena, and Waycross is required to comply.
However, the Court has discretionary authority in the area of sanctions. In examining the
circumstances surrounding this case from the perspective of Waycross, where Waycross
has been repeatedly contacted by a man who is not a lawyer but claims to have a right to
receive detailed personal information related to a former client, Waycross’s reluctance to
comply with the document that man alleges to be a subpoena is understandable,
particularly if Waycross’s statutory agent is not himself well versed in the law. Sanctions
are therefore are inappropriate at this time.
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The magistrate judge’s report and recommendation proposed a solution which the
Court believes will appropriately put Waycross on notice of its legal requirement to
comply with the subpoena and deliver to Plaintiff the information he seeks. The Court
will order the United States Marshal to personally serve the registered statutory agent of
Waycross with a copy of the subpoena, as well as the magistrate judge’s October 6, 2016
order to compel (Doc. 90), the magistrate judge’s most recent report and
recommendations (Doc. 101), and this Order (at the Court’s expense). By taking this
course of action, both Plaintiff and the Court can be assured that Waycross has been
served and is on notice regarding its obligations.
The Court closes its analysis of Plaintiff’s motion for contempt by noting for the
record that Waycross South Properties, LLC will not be permitted to indefinitely ignore a
validly issued subpoena from this Court. Should Waycross continue to disregard this
Court’s order following personal service from the U.S. Marshal, the question of monetary
sanctions may be appropriate to revisit at a later date. However, at this time such a
course of action would be too extreme given Waycross’s status as a third party with no
direct connection to the underlying activity forming the basis for Plaintiff’s claims.
Accordingly, Plaintiff’s motion for contempt (Doc. 95) is denied.
B.

Plaintiff’s ex parte motion for writ of garnishment

Plaintiff’s second motion is an ex parte motion for writ of garnishment of property
other than personal earnings. (Doc. 99). The motion named Defendants Premium
Outsourced Solutions Inc. (“POS”) and Shawn Wolmuth as judgment debtors and named
Fifth Third Bank as the garnishee. In the memorandum in support of this motion,
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Plaintiff argued that filing the motion ex parte was permitted by Ohio law governing
garnishment filings and that ex parte filing was necessary to prevent giving the judgment
debtors the opportunity to remove money from the targeted accounts prior to
garnishment. (Doc. 99, at 2–3). The motion is supported by an affidavit from Plaintiff
attesting that Fifth Third Bank “may have in [its] control money, property, or credits,
other than personal earnings, of the judgment debtor.” (Doc. 99-3, at 1).
The report and recommendation recommends denial of Plaintiff’s motion for
garnishment on two grounds. The first is that the motion was procedurally improper for
being filed ex parte. However, as Plaintiff’s objections correctly argue, this Court is
bound by the Federal Rules of Civil Procedure to evaluate motions for garnishment
pursuant to the laws of the state in which it is located, absent a federal statute dictating a
divergent standard for garnishment motions. Fed. R. Civ. P. 64, 69. In Ohio, motions for
garnishment may be properly filed ex parte; a judgment debtor is notified of the
garnishment at the same time the garnishment Order is sent to the garnishee. See O.R.C.
§ 1716.13 (B), (C). While this Court typically sees motions for writ of garnishment filed
as part of the public record, see, e.g., Ibew Local No. 64 Pension Fund, Case No. 1:10-cv467, Doc. 24; Abrahamson v. Jones, Case No. 1:16-cv-712, Doc. 29; Plaintiff’s ex parte
filing of his motion for writ of garnishment is procedurally within the bounds of Ohio
law.
The report and recommendations also recommends dismissal of Plaintiff’s motion
for writ of garnishment on the grounds that the motion lacks merit. The report and
recommendations explains that service of the default judgments against judgment debtors
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POS and Wolmuth “remains unclear,” that Plaintiff has continually added new
allegations about the relationships between the various defendants in this case since the
case began, and that Plaintiff’s case is generally based on “ambiguous theories.” (See
Doc. 101, at 12–14). The undersigned shares the magistrate judge’s general skepticism
regarding the strength of Plaintiff’s case. However, in the case of the present motion for
writ of garnishment, the fact remains that a default judgment has been granted against the
judgment debtors and in favor of Plaintiff. Plaintiff’s affidavit in support of his motion,
while brief, states that Fifth Third Bank may be in possession of money or property
belonging to judgment debtors POS and Shawn Wolmuth, which meets the requirements
of the Ohio statute governing garnishment. O.R.C. § 2716.11. It may be true that, due to
issues with service or with the strength of Plaintiff’s claims, Plaintiff will not ultimately
be entitled to collect from either of the judgment creditors at issue here even if Fifth
Third Bank possesses their assets. However, the judgment debtors will have to raise any
arguments to that effect at the garnishment hearing.
Accordingly, Plaintiff’s ex parte motion for writ of garnishment (Doc. 99) is
granted.
C.

Plaintiff’s amended motion for discovery in aid of execution of
judgment

The third motion addressed by the magistrate judge’s report and recommendations
is a motion for discovery in aid of execution of judgment. (Doc. 100). The motion seeks
an Order requiring the three major credit reporting institutions (TransUnion, Equifax Inc.,
and Experian Information Solutions Inc.) to provide to Plaintiff a copy of their credit
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report for judgment debtor Shawn Wolmuth. (Id.). Both the magistrate judge and
Plaintiff are in agreement that the motion should be granted. The Court finds the analysis
of this motion contained in the report and recommendations to be well taken, and
therefore adopts the report and recommendations of the magistrate judge in full with
respect to this motion.
Accordingly, Plaintiff’s amended motion for discovery in aid of execution of
judgment (Doc. 100) is granted.
III.

CONCLUSION

As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo
all of the filings in this matter. Upon consideration of the foregoing, the Court does
determine that such report and recommendations should be and is hereby adopted in
part. Accordingly, IT IS ORDERED that:
1) Plaintiff’s motion for contempt (Doc. 95) is DENIED;
2) The U.S. Marshal shall deliver personal service of the following documents
upon the registered agent for Waycross South Properties, LLC: a) a copy of the
subpoena issued to Waycross South Properties, LLC on June 10, 2016 (Doc.
87-1); b) a copy of magistrate judge’s October 6, 2016 order to compel (Doc.
90)’ c) a copy of the magistrate judge’s most recent report and
recommendations (Doc. 101); and d) a copy of this Order. This delivery shall
be at the Court’s expense;
3) Plaintiff’s ex parte motion for writ of garnishment (Doc. 99) is GRANTED.
The magistrate judge is instructed to effectuate service of the writ in
accordance with Ohio law;
4) Plaintiff’s amended motion for discovery in aid of execution of judgment (Doc.
100) is GRANTED. TransUnion, Equifax Inc., and Experian Information
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Solutions Inc. are ORDERED to disclose to Plaintiff any credit report they
possess for judgment debtor Shawn Wolmuth;
5) Plaintiff’s motion for ruling on his objections to the report and
recommendations (Doc. 103) is DENIED AS MOOT.
IT IS SO ORDERED.
Date: 6/5/17

_______________________
Timothy S. Black
United States District Judge

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