Lucas v. Doe et al
MEMORANDUM OPINION AND ORDER - IT IS ORDERED: (1) Plaintiff's motions for an additional extension of time to complete service upon Defendant Jeffrey Torres, and to conduct discovery on a related corporation to discover the residential address o r Mr. Torres and/or a location where he can be served, 35 63 are GRANTED up to and including 5/15/2017; (2) Defendants' motion for leave to permit Attorney Joshua L Spoont to appear pro hac vice 61 is GRANTED; (3) The Filippo Defendants 39; unopposed motion for an extension of time to file a reply memorandum 64 is DENIED AS MOOT in light of the Report and Recommendation filed today; (4) Based upon the R&R that recommends setting aside the Entry of Default against them, the Filippo Defendants shall appear and file their Answer and Affirmative Defenses 50 on or before 3/31/2017. Absent rejection of the pending R&R, the Answer of the Filippo Defendants shall be considered as if timely filed. Signed by Magistrate Judge Stephanie K. Bowman on 3/20/2017. (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
Case No. 1:16-cv-790
DESILVA AUTOMOTIVE SERVICES, et al.,
MEMORANDUM OPINION AND ORDER
Currently pending in this case are three motions that have been addressed by
separate Report and Recommendation filed this same day, and four non-dispositive
motions addressed by this Order. Plaintiff, an experienced pro se litigant, 1 has filed a
motion for discovery in aid of service of process upon Defendant Jeffrey Torres, as well
as a motion for an extension of time to serve Defendant Torres. Defendants have filed
motions seeking the pro hac vice admission of their chosen counsel to this Court, as
well as a motion seeking a brief extension of their deadline for filing a reply
memorandum to a pending motion.
The undersigned takes judicial notice of the fact that Plaintiff has filed six lawsuits in this Court alone, all
containing similar allegations of illegal telemarketing practices. In addition to the above captioned case,
see Case No. 1:11-cv-409 (closed), Case No. 1:12-cv-630, Case No. 1:15-cv-108 (closed), Case No.
1:16-cv-1102, and Case No. 1:16-cv-1127. Plaintiff recently filed a “miscellaneous” case, Case No. 1:17mc-02, that was administratively closed by Magistrate Judge Litkovitz as improperly opened, to the extent
it relates to an existing civil case. In addition, Plaintiff’s filings in this Court allude to related litigation he
has pursued in state court(s).
Analysis of Pending Motions
Motions Concerning Service on Defendant Torres
Plaintiff originally initiated this lawsuit on July 27, 2016, without identifying any
Defendant other than three “John Does.” He also failed to serve or identify any of the
John Doe Defendants prior to October 27, 2016, as required by Rule 4(m) of the
Federal Rules of Civil Procedure. In fact, for more than three months Plaintiff had filed
nothing of record to indicate that he had taken steps to identify any Defendant or to
achieve service on anyone.
However, on December 12, 2016, Plaintiff filed an
Amended Complaint newly identifying 16 Defendants (6 individual and 10 companies)
and terminating the original three “John Doe” Defendants. (Doc. 3).
The Court directed Plaintiff on December 16 to complete service within thirty (30)
days. (Doc. 6). However, for good cause shown, the Court later granted Plaintiff’s
motion for an extension of time to perfect service on all domestic Defendants, until
February 3, 2017. (Doc. 22).
Plaintiff recently filed two additional motions that seek limited discovery and
additional time in which to perfect service on Defendant Jeffrey Torres, who Plaintiff
states is the only Defendant who has yet to be served. (See Doc. 63). For the reasons
stated in both motions, which are unopposed, the requested relief will be granted up to
and including May 15, 2017.
However, and contrary to the Plaintiff’s contention, the undersigned does not
view Rule 4(d)(2) as mandating that all expenses incurred in serving Mr. Torres,
including the expense of discovery and/or identifying the place of service, be imposed
on Mr. Torres. Rule 4(d)(2), Fed. R. Civ. P. is intended to impose the ordinary costs of
service upon a defendant who fails “without good cause, to sign and return a waiver
requested by a plaintiff located within the United States.” At this point in time, Plaintiff
has not located or served Mr. Torres with a waiver; therefore, the cost-shifting rule is
inapplicable. In addition, because this case has now been pending for nearly 8 months,
Plaintiff is forewarned that the Court is unlikely to grant future extensions for service on
this lone remaining Defendant.
Counsel for Defendants Gregory Filippo, James Filippo and the Estate of Vilma
Filippo has filed a motion for leave to appear pro hac vice. All relevant conditions for
such admission appearing to have been satisfied, Defendant’s motion is granted.
Defendants also seek an extension of time in which to file a reply memorandum
in support of setting aside the Clerk’s Entry of Default against them. Because the
undersigned does not require further briefing and the R&R filed this same day
addresses the same pending motion, their motion for extension will be denied.
Conclusion and Order
Accordingly, IT IS ORDERED:
Plaintiff’s motions for an additional extension of time to complete service
upon Defendant Jeffrey Torres, and to conduct discovery on a related
corporation to discover the residential address or Mr. Torres and/or a location
where he can be served, (Docs. 35, 63) are GRANTED up to and including
May 15, 2017;
Defendants’ motion for leave to permit counsel to appear pro hac vice
(Doc. 61) is GRANTED.
The Filippo Defendants’ unopposed motion for an extension of time to file
a reply memorandum (Doc. 64) is DENIED AS MOOT in light of the Report
and Recommendation filed today;
Based upon the R&R that recommends setting aside the Entry of Default
against them, the Filippo Defendants shall appear and file their Answer and
Affirmative Defenses (Doc. 50-1) on or before March 31, 2017.
rejection of the pending R&R, the Answer of the Filippo Defendants shall be
considered as if timely filed.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
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