Lucas v. Jolin et al

Filing 90

OPINION AND ORDER granting in part 87 Plaintiff's Motion to Compel non-party Waycross South Properties LLC to respond to the subpoena seeking records concerning Kevin Calvin. Waycross South Properties LLC shall respond to the previously serv ed subpoena on or before 10/20/2016. A copy of this Order shall be mailed to Waycross South Properties LLC, care of its statutory agent, Xiaomu Hu, at P.O. Box 425, Mason Ohio 45040, with a second courtesy copy to be mailed to Waycross South Propert ies LLC, 431 Ohio Pike, Cincinnati, Ohio 45255. Because default judgments have been entered against all remaining Defendants, because post-judgment enforcement of the pending subpoena is not impacted by closure of this case, and because post-judg ment interest is calculated from entry of "Final Judgment," this case should be resubmitted to the presiding district judge for consideration of whether the case should be CLOSED, and final judgment entered at this time. Signed by Magistrate Judge Stephanie K. Bowman on 10/6/2016. (km) (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,

Case No. 1:15-cv-108

Plaintiff,

Black, J.
Bowman, M.J.

v.
AURELIO JOLIN, et al.,
Defendants.

OPINION AND ORDER
I.

Background

The above captioned case involves Plaintiff’s allegations of illegal telemarketing
practices. Pursuant to local practice, this case was referred to the undersigned
magistrate judge for pretrial management and for initial consideration of any dispositive
matters by report and recommendation (“R&R”).
Seeking monetary damages and injunctive relief, Plaintiff initiated this litigation
pro se on February 11, 2015, naming just three Defendants: Victor Jolin, a Philippine
telemarketer; Visram, Inc., a company incorporated in Panama; and “John Doe.” On
June 9, 2015, Plaintiff filed his first amended complaint, identifying “John Doe” as an
individual named Kevin Jay Calvin, d/b/a “Made in America Cleaning and Restoration.”
Thereafter, summons was issued and executed as to Defendant Calvin. (Docs. 12, 14).
When Calvin failed to timely answer or respond Plaintiff’s first amended complaint as
required, on July 22, 2015, an entry of default was filed against him. (Docs. 16, 17).

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Plaintiff filed a motion seeking immediate default judgment against Calvin based
upon Plaintiff’s assertion that there was a significant risk of insolvency of that Defendant
if judgment were not immediately entered. In support of that assertion, Plaintiff stated
that in April 2015, “[d]efault judgment has been entered against Calvin…for $949,245” in
a similar telemarketing case brought against the Defendant by the State of Texas,
involving allegations that Calvin made more than 21,000 illegal calls to Texas residents.
Based upon Plaintiff’s representations, 1 the Court granted Plaintiff’s motion for entry of
default judgment against Calvin despite expressing a general reluctance to enter default
judgments “piecemeal.” (Docs. 31, 37).

The Court directed Defendant Calvin to pay

Plaintiff damages in the amount of $22,800, representing $3,800 per call for a total of
six calls, which calls were alleged to have been placed by Calvin on 9/3/14, 9/19/14,
10/8/14, 11/8/14, 11/19/14, and 12/12/14. (Id.) Judgment was entered in that amount
against Defendant Calvin on Plaintiff’s first amended complaint. (Doc. 38), and Plaintiff
submitted his bill of costs.
In the meantime, Plaintiff filed a second amended complaint and continued to
litigate additional claims against additional defendants.

During the course of this

litigation, Plaintiff dismissed claims against two Defendants, Starion Energy and Net
VoIP Communications, Inc.

Plaintiff obtained entries of default against four other

Defendants who failed to appear.
On July 15, 2016, the undersigned filed a Report and Recommendation (“R&R”)
that recommended, in part, granting Plaintiff’s unopposed motion for default judgment
against the last four remaining Defendants. The undersigned further recommended
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“[T]he recent entry of a nearly million dollar judgment against the same Defendant in the Texas case
provides an adequate basis alone for departing from” Sixth Circuit cases advocating against the
piecemeal entry of default. (Doc. 31 at 6-7).

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directing those four defaulting parties to pay Plaintiff the sum of $45,600, together with
costs and interest to be calculated at the statutory rate from the date of final judgment.
(Doc. 85).

Because the R&R resolved all remaining claims against all remaining

Defendants in the case, the undersigned recommended that final judgment be entered
and that this case be closed. (Id.)
On September 19, 2016, the presiding district judge adopted the R&R with one
exception. Noting that a motion to compel had been filed by the Plaintiff after the filing
of the R&R, the district judge found it “inappropriate to close the case at this time,”
instead referring the matter back to the undersigned to review the most recently filed
motion.

However, the R&R was otherwise adopted in full, including the calculation of

costs and interest “to be paid at the statutory rate from the date of final judgment….”
(Doc. 88 at 2, emphasis added). Based on the Court’s order, this case has not yet been
closed, and final judgment has not yet been entered.

Arguably, therefore, post-

judgment interest is not yet accruing.
II.

Analysis

As explained above, back in October of 2015, the undersigned recommended
granting Plaintiff’s motion for entry of default judgment on his first amended complaint
against one of the first Defendants named by Plaintiff in this lawsuit, Kevin Calvin. That
recommendation was adopted by the Court in an Order filed on November 18, 2015.
(Docs. 37, 38). However, attempted service of that Order by mail on Defendant Calvin
was subsequently returned as undeliverable, (Doc. 51), 2 and it appears that Plaintiff has
not been able to collect on his default judgment.

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Summons on the complaint originally was returned as executed, signed by “K Calvin” on June 26, 2015,
and filed of record on July 2, 2015. (Doc. 14). However, a subsequent return of mail sent to the same

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Given the existence of a pre-existing judgment in the amount of nearly one
million dollars against the same individual Defendant previously entered by a Texas
court, the undersigned cannot help but wonder about the likelihood of Plaintiff’s ability to
recover his later-filed $22,800 judgment against the same Defendant. However, this
Court will continue to assist Plaintiff in his quest to pursue relief against the defaulting
Defendant to the extent allowed under federal law.
The recently filed motion is Plaintiff’s second post-judgment attempt to obtain
information concerning the whereabouts and assets of the elusive Mr. Calvin. On June
27, 2016, Plaintiff filed a motion to compel non-party Trans Union LLC, a credit reporting
agency, to produce a “full credit report” for Defendant Calvin. Plaintiff sought the order
pursuant to Rules 45 and 69 of the Federal Rules of Civil Procedure, as well as under
15 U.S.C. § 1681b(a)(1). The undersigned granted Plaintiff’s request and entered an
order on July 12, 2016 that directed Trans Union to produce Defendant Calvin’s full
credit report as requested, to assist Plaintiff as a judgment creditor in obtaining
discovery that could assist him in his efforts to collect on the judgment he has obtained
from this Court. (Doc. 84).
Around the same time, Plaintiff issued a separate subpoena to Waycross South
Properties LLC, another non-party to this litigation with an alleged property relationship
with Mr. Calvin. Waycross South leases commercial office space in Cincinnati, Ohio.
According to documents filed in the same Texas litigation upon which Plaintiff previously
relied to obtain his default judgment against Calvin, the State of Texas was able to

Las Vegas, Nevada residence suggests that the residence is occupied by the Defendant’s father, and is
not a valid address for the Defendant.

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obtain service on Defendant Calvin in December 2014 at office space rented by Calvin
from Waycross South.
An affidavit filed by the Texas Attorney General in State of Texas v. Calvin, Case
No 4:14-cv-00654-O, reflects that although Mr. Calvin occasionally “listed” a Las Vegas,
Nevada residence, that address was that of “Defendant’s parents and Defendant Calvin
was unlikely to be found at that residence.” (Id., Doc. 6 at 3). 3

The father of the

Defendant informed counsel that he had not been in recent contact with his son. (Doc.
6 at 5). According to the Texas AG, shortly after the filing of the Texas lawsuit, Calvin
moved his telemarketing operation from Texas to rented office space in the state of
Georgia. However, as of August of 2014, the property manager in Georgia informed
counsel that Calvin had abruptly abandoned the office, leaving behind “routers and a
bunch of wires.” (Doc. 6 at 3). The property manager further informed counsel that
Calvin had paid for his first month of rent via check, but that the check had bounced and
Calvin had made no other payments. (Doc. 6-1 at 2).
By mid-September 2014, Texas had ascertained that Defendant Calvin had
moved his telemarketing operation to Cincinnati, Ohio. Texas counsel made multiple
attempts to contact the Defendant through the use of an investigator. (Id. at 4-5). In
November 2014, counsel discovered that Defendant Calvin was renting office space at
431 Ohio Pike, Cincinnati, Ohio, from Waycross South. Counsel or his agents made “at
least 12 unsuccessful attempts to serve Defendant Calvin at that address, including
conducting a stakeout at the address for one or more hours on three different
occasions.”

(Doc. 6 at 5, ¶12).

After obtaining an extension of time in which to

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The father’s name appears to be “James Calvin.” Notwithstanding the more recent return of mail sent by
this Court to the Las Vegas address, the summons initially filed in this Court appears to have been
accepted by “K. Calvin.”

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complete service on Calvin, the Texas AG eventually achieved service on Calvin at the
Ohio Pike office address (leased from Waycross South) on December 19, 2014. After
Calvin failed to answer or otherwise appear in the Texas case, a default judgment was
entered on April 13, 2015 in the amount of nearly one million dollars. There is no
information in the Texas record following the entry of judgment.
Based upon the alleged failure of the statutory agent of Waycross South to
respond to Plaintiff’s subpoena seeking information about Calvin in this case, Plaintiff
now asks an Order from this Court to force Waycross South to respond to the subpoena
“and to find Waycross South in contempt of court.” (Doc. 87). The undersigned will
only partially grant Plaintiff’s request, by compelling Waycross to respond.
Plaintiff states that he served the subpoena on Waycross South in July 2016,
seeking the production of a wide range of documents, including any lease application
forms, Calvin’s last known address and telephone number, Calvin’s Social Security
number, his license plate number and issuing state of any vehicles owned or used by
Calvin, his driver’s license number and issuing state, any credit reports or background
checks on Calvin, copies of methods of payment including checks, routing numbers,
credit card account numbers, any other information regarding Calvin’s financial
accounts, and any other information regarding Calvin’s assets. The same information
was requested for Calvin and/or any business relating to him that may have leased the
office space at 431 Ohio Pike back in December 2014.
According to Plaintiff, the statutory agent for Waycross South was served with
the subpoena by mail.

Receiving no response, Plaintiff went to Waycross South’s

business office on August 11, 2016 and spoke in person to “Steven Xu” who

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represented himself as a co-owner of Waycross South.

Plaintiff “warned him that

Waycross South could be held in contempt of court and penalized monetarily if it did not
comply with the subpoena,” whereupon Mr. Xu asked Plaintiff to send a list of the
information he wanted via email. (Doc. 87 at 2). Two weeks later, on August 26, 2016,
Plaintiff filed his motion, representing that Waycross South still had not produced the
requested information.
Rule 69(a)(2) permits any judgment creditor to obtain discovery from any person
– including non-parties – as provided in the Federal Rules of Civil Procedure, including
through a subpoena issued under Rule 45. 4
“In the absence of any contrary agreement between the parties, the scope
of post-judgment discovery is broad ... and includes the right to obtain
discovery from non-parties.” GATX Corp. v. Appalachian Fuels, LLC, No.
09–41, 2011 WL 4015573, at *2 (E.D.Ky. Sept.9, 2011) (citing U.S. v.
Conces, 507 F.3d 1028, 1040 (6th Cir.2007)). Judgment creditors are
entitled to “utilize the full panoply of federal measures provided for under
federal and state law to obtain information from parties and non-parties
alike, including information about assets on which execution can issue or
about assets that have been fraudulently transferred.” Magnaleasing, Inc.
v. Staten Island Mall, 76 F.R.D. 559, 561 (S.D.N.Y.1977). However, there
are limits to post-judgment discovery regarding third parties and “[t]he
party seeking such discovery must make ‘a threshold showing of the
necessity and relevance’ of the information sought.” Michael W. Dickinson,
Inc. v. Martin Collins Surfaces & Footings, LLC, No. 5:11–CV–281, 2012
WL 5868903, at *2 (E.D.Ky. Nov.20, 2012) (quoting Trs. of N. Fla.
Operating Eng'rs Health & Welfare Fund v. Lane Crane Serv., Inc., 148
F.R.D. 662, 664 (M.D.Fla.1993)).
F.T.C. v. Trudeau, No. 1:12-MC-022, 2012 WL 6100472, at *4 (S.D. Ohio Dec. 7, 2012).
The only limits on post-judgment discovery from a non-party by a judgment
creditor are the limits that apply generally to all discovery requests to a non-party,

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While this Court has discovered no procedural prohibition to seeking post-judgment enforcement of a
subpoena under the circumstances presented – where the underlying case remains open – more typically
a motion to compel (or conversely, to quash) enforcement of a post-judgment subpoena issued to a nonparty is through initiation of a separate miscellaneous action in this Court.

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including such concerns as relevancy and proportionality (or undue burden).
Consideration of nonparty status is always one factor in the analysis of the burden
imposed in compelling compliance with a subpoena. Allen v. Howmedica Leibinger,
GmhH, 190 F.R.D. 518 (W.D. Tenn., 1999). As another court put it,
Although post-judgment discovery of third parties is certainly allowable
under Rule 69, the inquiry “must be kept pertinent to the goal of
discovering concealed assets of the judgment debtor and not be allowed
to become a means of harassment of the debtor to third persons.” Caisson
Corp. v. County West Building Corp., 62 F.R.D. 331, 334 (E.D.Pa.1974).
The scope of discovery against third parties is therefore generally limited
to “the financial affairs of the judgment debtor.”
Matthias Jans & Associates, Ltd. v. Dropic, No. 01-MC-26, 2001 WL 1661473, at *2
(W.D. Mich. Apr. 9, 2001).
This Court has two reasons for declining to grant Plaintiff’s motion to compel in
full.

First, there is some ambiguity that the subpoena was properly served, since

Plaintiff’s proof of service appears to be a “tracking” notice by the United States Postal
Service, indicating service by mail to a post office box. Rule 45 requires “delivering a
copy [of the subpoena] to the named person.” Many courts, including courts within the
Sixth Circuit, have held that “Rule 45 requires personal service.” OceanFirst Bank v.
Hartford Fire Ins. Co., 794 F. Supp.2d 752 (E.D. Mich. 2011); see also McClendon v.
TelOhio Credit Union, Inc., 2006 WL 2380601 *2 (S.D. Ohio Aug. 14, 2006).

On the

other hand, in Powell v. Time Warner Cable, 2010 WL 5464895 (S.D. Ohio, Dec. 30,
2010), Magistrate Judge Deavers pointed out that the Sixth Circuit has not definitively
ruled on the personal service issue, and courts around the country have come to
differing conclusions, especially when there is evidence of actual receipt. Id. at *3
(collecting cases). While Plaintiff’s representation that he spoke to the co-owner of
Waycross South on August 11, 2016 suggests actual knowledge of the subpoena in this
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case, the vast number of courts that have required personal service disfavors imposing
draconian sanctions upon a non-party that was not personally served.
Plaintiff seeks the imposition of “civil and criminal contempt of court,” and a fine
of $300, with an additional sanction of $50 per day each day after September 8, 2016”
until Waycross South produces the requested documents.
Order).

(Doc. 87-8, Proposed

The second reason for declining to grant the severe sanctions sought by

Plaintiff is that, even assuming that service of the subpoena can be considered to be
valid, the information sought appears to be largely duplicative of the credit report
previously ordered from Trans Union, another non-party. Thus, the Court has some
concern about the redundancy of the information being sought from this second nonparty.
III.

Conclusion and Order

On the balance of the facts presented, including Waycross South’s failure to
respond or to file a motion to quash the subpoena, IT IS ORDERED:
1. Plaintiff’s post-judgment motion to compel non-party Waycross South
Properties LLC to respond to the subpoena seeking records concerning Kevin
Calvin (Doc. 87) is GRANTED IN PART;
2. Waycross South Properties LLC shall respond to the previously served
subpoena on or before October 20, 2016;
3. A copy of this Order shall be mailed to Waycross South Properties LLC, care
of its statutory agent, Xiaomu Hu, at P.O. Box 425, Mason Ohio 45040, with a
second courtesy copy to be mailed to Waycross South Properties LLC, 431
Ohio Pike, Cincinnati, Ohio 45255.

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4. Because default judgments have been entered against all remaining
Defendants, because post-judgment enforcement of the pending subpoena is
not impacted by closure of this case, and because post-judgment interest is
calculated from entry of “Final Judgment,” this case should be resubmitted to
the presiding district judge for consideration of whether the case should be
CLOSED, and final judgment entered at this time.

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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