Lucas v. Total Security Vision, Inc. et al

Filing 57

REPORT AND RECOMMENDATIONS - IT IS RECOMMENDED THAT Plaintiff's motion to strike certain affirmative defenses 36 be GRANTED IN PART, and that paragraphs 20, 22, 26, 27, 32, 37, 46, and 51 be STRICKEN from Defendants' Answer, but that the motion be DENIED as to the defenses contained in paragraphs 38 and 50. IT IS FURTHER RECOMMENDED that Defendants' motion for leave to file a counterclaim 47 be CONDITIONALLY GRANTED, unless Defendant Ullah failed to appear for his deposition on 8/17/2018, in which case the motion should be DENIED. Signed by Magistrate Judge Stephanie K. Bowman on 9/21/2018. (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. 1:16-cv-1102
Plaintiff,

Barrett, J.
Bowman, M.J.

v.

TOTAL SECURITY VISION, INC., et al.,
Defendants.

REPORT AND RECOMMENDATION
On November 23, 2016, Plaintiff, an experienced pro se litigant, filed the abovecaptioned case. Pursuant to local practice, the case was referred to the undersigned
when Plaintiff filed his complaint pro se. 1 Currently pending before the Court are Plaintiff’s
motion to strike certain affirmative defenses contained in Defendants’ Amended Answer,
and Defendants’ motion for leave to file a counterclaim. For the reasons that follow,
Defendants’ motion should be granted, and Plaintiff’s motions should be denied.
I.

Background

The history of this case and that of a related prior case were the subject of an R&R
filed on May 1, 2017 by the undersigned. The R&R recommended granting the

1Plaintiff

has filed at least nine lawsuits in this Court alone, most of which contain similar allegations of
illegal telemarketing practices. Although Plaintiff filed this case pro se, he was briefly represented by
attorney Alfred V. Lucas before returning to his pro se status in October 2017. In addition to the abovecaptioned case, see Case No. 1:11-cv-409 (closed), Case No. 1:12-cv-630 (closed), Case No. 1:15-cv-108
(closed), Case No. 1:16-cv-790, Case No. 1:16-cv-1127 (closed), Case No 1:17-cv-47 (closed); Case No.
1:17-cv-374 (closed), Miscellaneous Case No. 1:17-mc-02 (closed), and most recently, Case No. 2:18-cv582. Plaintiff has informed this Court of related litigation he has pursued in several state courts.

1

Defendants’ motion to dismiss this case as barred by res judicata or claim preclusion, 2
and denying Plaintiff’s counter-motion for summary judgment, based upon the close
relationship between the claims made in this case to claims previously litigated by Plaintiff
in Case No. 1:15-cv-108. (Doc. 17). The R&R, noting that the 12 phone calls that form
the subject matter of this case are the exact same phone calls that formed the subject
matter of Case No. 1:15-cv-108, reasoned that Defendants had demonstrated that
Plaintiff had pleaded all four elements required to show claim preclusion, including privity
with a prior Defendant in Case No. 1:15-cv-108, referred to by the acronym “POSI.” (Doc.
18 at 4-5). The R&R recommended denial of Plaintiff’s counter-motion for summary
judgment, which sought the offensive use of claim preclusion against the Defendants, as
contrary to law. 3 Last, the R&R recommended denying a proposed amendment to the
Plaintiff’s complaint in this case. (Id.)
On September 29, 2017, the presiding district judge partially sustained Plaintiff’s
Objections to the R&R, holding that Plaintiff’s claims survived the Defendants’ motion to
dismiss without prejudice to renew Defendants’ arguments, if appropriate, on summary
judgment. (Doc. 20). In his Objections, Plaintiff had argued (in part) that the Defendants

2The undersigned disagrees with Plaintiff’s accusation that the use of the phrase “claim preclusion” in the
prior R&R demonstrates that the undersigned “does not understand that res judicata includes more than
just claim preclusion,” (Doc. 18 at 7). It is true that some courts have held res judicata to encompass both
“issue preclusion (collateral estoppel) and claim preclusion (res judicata in its narrow sense). Heyliger v.
State University and Community College System of Tenn., 126 F.3d 849, 851-852 (6th Cir. 1997).
However, it is equally true that other courts have separated the concepts, and defined res judicata more
narrowly. See id. (noting the “perennial confusion over the vocabulary and concepts” and quoting the
Supreme Court’s exposition of the concepts in Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75,
77 n. 1 (1984)). The Sixth Circuit has repeatedly expressed a preference for the English phrases over the
Latin, see id., as have many commentators. Because the instant case focuses on the concept of claim
preclusion, the undersigned previously articulated her preference for the English phrase. However, based
on the Plaintiff’s adherence to the Latin phrase and the use of the same by the presiding district judge, the
undersigned will revert to the use of “res judicata.”
3See R&R, Doc. 17 at 6-7.

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were not entitled to dismissal of his complaint based upon allegations that he had pleaded
“privity” in a manner that could support res judicata against him. Instead, Plaintiff argued
that his complaint had not alleged that the Defendants were in privity, but had alleged
only that Defendants “were acting as agents of” POSI in the prior case. Only after the
Defendants argued that Plaintiff’s allegations were equivalent to an allegation of privity
sufficient to support the defensive application of res judicata, Plaintiff argued that he was
entitled to summary judgment based upon an offensive application of the doctrine.
Alternatively, however, Plaintiff argued that if this Court did not find the Defendants to be
in privity with POSI, then “[b]oth the Motion to Dismiss and the Motion for Summary
Judgment must be denied.” (Id. at 1).
In ruling on Plaintiff’s Objections, Judge Barrett first pointed out that a Sixth Circuit
case interpreting Ohio law arguably runs counter to Plaintiff’s argument, insofar as it holds
that “a principal-agent relationship satisfies the privity requirement of res judicata where
the claims alleged are within the scope of the agency relationship.” ABS Indus., Inc. ex
rel ABS Litig. Tr. v. Fifth Third Bank, 333 Fed. Appx. 994, 999 (6th Cir. 2009) (citations
omitted). (Doc. 20 at 3-4). Nevertheless, the Court sustained Plaintiff’s Objection that
the privity element of res judicata had not been satisfied in the context of Defendants’
motion to dismiss. 4 The Court distinguished ABS Indus., Inc. on grounds that there, an
agreement between the parties was attached as an exhibit to the complaint that “made it
indisputable that the two parties were in a principal-agent relationship.” (Doc. 20 at 4).

4Aside

from contesting the “privity” element required to show that the second action involves the same
parties, Plaintiff’s Objections did not challenge the R&R’s determination that the allegations in his complaint
satisfied the other three elements required to establish res judicata: (1) a default judgment against Jolin
and POSI that was equivalent to a final judgment on the merits; (2) the same claims; and (3) the same
transaction or occurrence. See Micropower Group v. Ametek, Inc., 953 F. Supp.2d 801 (S.D. Ohio 2013).

3

In contrast to the “indisputable” evidence of privity in ABS Indus., Inc., the Court found
that here, the issue of privity could not be determined “at this early stage in the
proceedings” on the pleadings alone. (Doc. 20 at 4).
[T]he Court finds it is not presently able to determine whether a principalagent relationship exists. The record reveals no evidence the parties had
the sort of fiduciary relationship necessary to brand [Total] Security and
Ullah agents of POSI. Unlike the Sixth Circuit in ABS wherein the Court
found the “explicit allegations of agency in its complaint” along with the
“specific language of the [a]greement” doomed any argument to the
contrary, there is no such evidence in this case for the undersigned to
properly consider at the motion to dismiss stage. ABS, 333 Fed.Appx. at
1001-02. Moreover, Plaintiff’s perfunctory use of the “agent” is not
dispositive, as the characterization of the parties’ own relationship in the
context of industry or popular usage is not controlling. Id. at § 1.02.
Thus, while the Court must take the factual allegations of Plaintiff’s
Complaint as true when deciding a motion to dismiss, whether a principalagent relationship exists is a question of law for the Court – a determination
the Court is unable to make at this juncture. It may ultimately be true that
res judicata applies. But Defendants have not provided, and the Court has
not found, any authority that would oblige the Court to conclude based
solely on Plaintiff’s use of the word “agent” that res judicata bars Plaintiff’s
claims. Accordingly, Defendants have failed to establish res judicata
applies. If appropriate, Defendants may once again raise the res judicata
defense at the summary judgment stage.
(Doc. 20 at 4-5). 5
On February 21, 2018, Plaintiff filed a first amended complaint. 6 (Docs. 30, 33).
Ironically, in his amended complaint Plaintiff more clearly and indisputably alleges that
“Total Security Vision is in privity with [POSI] for the purposes of the doctrine that ‘a final

5The

Court’s Order partially sustaining Plaintiff’s objections did not address an alternative discussion in the
R&R that explained that even “if Plaintiff’s own allegations of privity among Ullah and TSV in this case and
POSI in Case NO. 1:15-cv-108 were not sufficient to apply the doctrine [of res judicata], the undersigned
would still recommend dismissal of the instant lawsuit based upon the closely related doctrine of nonmutual
claim preclusion. (Doc. 17 at 8). See also, generally Randles v. Gregart, 965 F.2d 90, 93 (6th Cir. 1992)
(per curiam, collecting cases that discuss the related doctrines of nonmutual claim or issue preclusion).
6While preserving their right to file a motion to dismiss, Defendants did not oppose the amendment, which
eliminated class action allegations.

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judgment rendered by a court of competent jurisdiction on the merits is conclusive as to
the rights of the parties and persons in privity with them’ in the same manner as if the
persons in privity were named as parties in the judgment.” (Doc. 33 at ¶51, emphasis
added). The new allegations in Plaintiff’s amended complaint purport to set forth an
additional claim for declaratory judgment based upon the prior case.
Although the prior R&R had recommended denial of any amendment in light of the
recommended dismissal of the original complaint, the Court’s Order partially sustaining
Plaintiff’s objections left open the door to add the new declaratory judgment claim.
Plaintiff next objects to the Magistrate Judge’s recommendation that
Plaintiff’s leave to amend his Complaint should be denied. First, he
contends that if the Court finds his Complaint is insufficient to obtain the
declaratory judgment requested in his motion for summary judgment, he
should be granted leave to amend. Because the Court does not address
Plaintiff’s objections related to his motion for summary judgment, the Court
likewise does not address whether the Complaint is sufficient to obtain a
declaratory judgment in that regard. While the Court is skeptical that
Plaintiff would ultimately succeed in obtaining a declaratory judgment, the
Court will not foreclose the possibility of permitting him to amend his
Complaint in the future, if appropriate.
(Doc. 20 at 5).
After Plaintiff filed his amended complaint, the undersigned entered a Calendar
Order directing the parties to complete discovery by August 23, 2018, and to file any
dispositive motions by September 30, 2018. After Defendants filed their answer to the
amended complaint, Plaintiff moved to strike certain defenses in that answer. Soon
thereafter, on April 23, 2018, defense counsel moved to withdraw from further
representation. That motion was granted on May 25, 2018, and new counsel entered an
appearance for Defendants on June 27, 2018. (Docs. 45, 46).

5

On July 18, 2018, new counsel filed a motion for leave to amend Defendants’
answer in order to file a counter claim. Plaintiff opposes Defendants’ motion.
For the reasons discussed, Plaintiff’s motion to strike should be granted in part,
and Defendants’ motion to amend the answer to include a counter claim should also be
granted.
II.

Pending Motions
A. Plaintiff’s Motion to Strike Defenses

In their answer to Plaintiff’s amended complaint, Defendants, through their former
counsel, included a lengthy list of affirmative defenses. (Doc. 32 at ¶¶16-52). Plaintiff
seeks to strike a number of specific defenses, including the following, denoted by the
referenced paragraph numbers in the Defendants’ answer:
20. This Court lacks personal jurisdiction over Ullah.
22. Plaintiff has failed to mitigate his damages.
26. Plaintiff’s claims are pre-empted by the dormant Commerce Cause.
27. Plaintiff’s claims are barred by the Due Process Clause.
32. An award of damages to Plaintiff will violate due process and/or
constitute an excessive fine.
37. Plaintiff’s claims are barred in whole or in part by the applicable statute
of limitations.
38. At all times relevant hereto, Defendant’s alleged conduct was privileged
and/or justified.
46. Plaintiff’s claims are barred by the Primary Jurisdiction Doctrine.
50. Plaintiff unlawfully holds himself out as an attorney licensed to practice
law in the State of Ohio.
51. Plaintiff’s claims are barred, in part, by the statute of frauds.

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(Id.)
Pursuant to Rule 12(f), “upon motion made by a party…the court may order
stricken from any pleading any insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.”
The Sixth Circuit has held that “because of the practical difficulty of deciding
cases without a factual record it is well established that the action of striking
a pleading should be sparingly used by the courts. It is a drastic remedy to
be resorted to only when required for the purposes of justice.” Brown &
Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th
Cir.1953) (internal citations omitted). Thus, such a motion should only be
granted “when the pleading to be stricken has no possible relation to the
controversy.” Id.
U.S. v. American Elec. Power Service Corp., 218 F. Supp.2d 931 (S.D. Ohio 2002).
Plaintiff argues first that the Defendants’ statute of limitations (¶37) defense fails
as a matter of law, since every call at issue occurred within two years of the date Plaintiff’s
complaint was filed. In response, Defendants argue only that they assert this defense
because they have “no independent knowledge of when calls may have been placed to
Plaintiff,” since the Defendants deny placing those calls. However, Defendants have
already asserted a “catch-all” defense, allowing them to amend and assert any new
defenses that may become available through further discovery, (see ¶52), and Plaintiff
has stated that he will not object to the Defendants amending to assert this defense if
justified.

At the present time, however, the undersigned does not believe such a

speculative assertion of a limitations defense to be warranted, and therefore will grant
Plaintiff’s motion to strike that defense.
Plaintiff seeks to strike Defendants’ constitutional arguments that TCPA damages
are an excessive fine under the Eighth Amendment.

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(Doc. 32, ¶32).

This Court

previously agreed in another case filed by Plaintiff. See Lucas v. Desilva, Case No. 1:16cv-790 (S.D. Ohio) (holding that statutory damages to an individual litigant under the
TCPA and OCSPA do not constitute an “excessive fine” or violation of “due process” as
a matter of law, and that such defenses should be stricken). The lone Eighth Circuit case
cited by Defendants, Capital Records, Inc. v. Thomas-Rasset, 692 F.3d 899, 907 (8th Cir.
2012), is not to the contrary.
Plaintiff seeks to strike the “Primary jurisdiction doctrine” defense (¶46) as having
no application to this case. Defendants argue that the Primary Jurisdiction defense is
appropriate “in the event the FCC issues orders that impact the issues in this case while
the case is pending,” and argues that there is “no harm to Plaintiff in having that affirmative
defense in the Answer.” (Doc. 37 at 3-4). Defendants’ argument implicitly concedes the
present inapplicability of this defense to this case; therefore, it will be stricken without
leave to renew should the defense be justified based upon future events.
Next, Plaintiff seeks to strike the following defenses: the “dormant Commerce
Clause” (¶ 26), “due process” (¶27), and “statute of frauds” (¶51). Plaintiff further argues
that Defendants’ assertion of a “failure to mitigate” defense (¶22) fails as a matter of law.
Defendants do not address any of these arguments, and it is not clear how any of the
referenced defenses could relate to this case. In view of the Defendants’ failure to
respond, the undersigned is persuaded that the defenses should be stricken. As Plaintiff
points out, this Court previously struck similar defenses raised by the defendants in Case
No. 1:16-cv-790. See R&R at Doc. 65, adopted at Doc. 75 (April 18, 2017).
[T]he undersigned finds more persuasive Plaintiff’s argument in favor of
striking as “insufficient as a matter of law,” certain defenses. See e.g., HCRI
TRS Acquirer, LLC v. Iwer, 708 F. Supp.2d 687, 692 (N.D. Ohio 2010)

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(holding that pleading requirements for affirmative defense are the same as
for claims of relief under Rule 8, striking conclusory, boilerplate defense that
lacked relationship to facts in the pleadings and therefore was not
plausible). Here, Discount Power’s assertion of defenses relating to the
statute of limitations, laches, or other time-bar (Fourth and Ninth Defenses),
and its Sixteenth Defense (duty to mitigate damages), its defense that
TCPA damages to a private litigant constitute an “excessive fine” under the
Eighth Amendment of the U.S. Constitution, and/or its “due process”
defense (Seventeenth Defense), all appear to be without merit. In response
to the arguments and case law cited by Plaintiff in this regard, Defendant
offers no countervailing argument or explanation of how the alleged facts
could possibly support these affirmative defenses. This Court’s review of
relevant case law accords with Plaintiff’s position that the referenced
defenses are unavailable as a matter of law on the facts alleged in the
pleadings.
(Id.)
Plaintiff seeks to strike ¶ 38, which asserts: “At all times relevant hereto,
Defendant’s alleged conduct was privileged and/or justified.” Defendants argue that the
defense is essentially duplicative of ¶41, which asserts consent as a defense, because ¶
38 is merely another way of arguing consent and non-invasion of privacy. Defendants
argue that the same defense expresses Defendants’ position that Defendants do not
make telemarketing calls and did not make the calls at issue.

Based upon the

Defendants’ response, the undersigned recommends that ¶ 38 be permitted to stand.
Plaintiff additionally seeks to strike ¶50, which alleged: “Plaintiff unlawfully holds
himself out as an attorney licensed to practice law in the State of Ohio.” Defendants
explain that this defense opposes Plaintiff’s request for attorney’s fees in his prayer for
relief, and also is relevant to two other defenses that Plaintiff has not sought to strike,
contained in ¶¶ 21 and 42, which challenge Plaintiff’s standing as a “professional

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plaintiff.”7

Based upon the Defendants’ response, the undersigned recommends that

¶50 be permitted to stand.
Last but not least, Plaintiff seeks to strike Ullah’s personal jurisdiction defense
(¶20). Defendants fail to address this argument. The undersigned agrees that the
defense appears to have been waived and should be stricken.
B. Defendants’ Motion to Amend Answer to Assert Counterclaim
As stated above, new counsel entered an appearance on behalf of Defendants on
June 27, 2018, and on July 18, 2018, Defendants filed a motion seeking leave to amend
their answer to include a counterclaim for breach of contract against the Plaintiff.
Defendants subsequently tendered their counterclaim, which alleges that this lawsuit
amounts to a breach of a prior settlement agreement executed between Plaintiff and
Defendants Net VOIP Communications, Inc. and Mohammad Ullah in Lucas v. Jolin,
Case No. 1:15-cv-108. Defendants maintain that they “are within the released parties as
defined” in the Settlement Agreement in the prior case. (Doc. 54 at ¶6).
Plaintiff filed a response opposing the proposed counterclaim. (Doc. 55). Plaintiff
complains that Defendants’ motion should be denied as untimely.
Defendants’ motion explains that Plaintiff’s amended complaint was filed on March
12, 2018. Prior counsel formally moved to withdraw just over a month later, on April 23,
2018, which new counsel now characterizes as “essentially contemporary to” the filing of
the amended complaint on March 12, 2018.

7See,

In his opposition, Plaintiff disputes that

e.g., Doc. 37 at 2, asserting that Plaintiff is “a professional plaintiff who is in the business of suing a
multitude of telemarketers and other companies in Ohio to win statutory damages” and as a “professional
plaintiff” may not qualify as a “consumer” under the Ohio Consumer Sales Practices Act. Since Plaintiff’s
motion does not seek to strike ¶¶ 21 or 42, the Court takes no position on the merits of this defense.

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characterization as misleading, not only based on the actual dates of the answer (which
was signed by counsel) and motion to withdraw, but also considering that Defendants
were on notice of the amended complaint six months earlier when Plaintiff first moved to
amend. Plaintiff additionally points out that Defendants’ prior counsel were both wellseasoned litigators at one of Cincinnati’s largest law firms. Plaintiff complains that “[t]he
mere fact that the Defendants have a new attorney is not good cause for reopening the
pleadings.” (Doc. 55 at 3).
New counsel seeks the Court’s indulgence to file the new counterclaim despite
acknowledging that Defendants technically remained represented by competent counsel
at the time they filed their prior answer.

While the issue is relatively close, the

undersigned conditionally recommends allowing the otherwise-tardy amendment.
Although the original discovery deadline is about to close, it appears highly likely that the
parties will seek to extend the current deadlines. By separate Order, the undersigned
has directed the parties to submit a status report and/or an Agreed Order Extending
existing deadlines.
The counterclaim is based on a document – the Settlement Agreement in Case
No. 1:15-cv-108 – that is clearly central to this case. The parties’ prior dispositive motions
included multiple references to the same Settlement Agreement on which Defendants
now base their breach of contract counterclaim. In short, there is no dispute that issues

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relating to the Settlement Agreement in Case No. 1:15-cv-108 will remain central to this
case regardless of whether the counterclaim is permitted. 8
Nevertheless, the recommended grant of the motion to amend is conditional based
upon the uncertainty as to whether Defendant Ullah attended his recently noticed
deposition. If Defendant failed to appear as required, the close balance of equitable
factors would tilt the other way and cause the undersigned to recommend that the Court
exercise its discretion to deny the untimely proposed amendment/ counterclaim.
III.

Conclusion and Recommendations

For the reasons discussed above, IT IS RECOMMENDED THAT Plaintiff’s motion
to strike certain affirmative defenses (Doc. 36) be GRANTED IN PART, and that
paragraphs 20, 22, 26, 27, 32, 37, 46, and 51 be STRICKEN from Defendants’ answer,
but that the motion be DENIED as to the defenses contained in paragraphs 38 and 50.
IT IS FURTHER RECOMMENDED that Defendants’ motion for leave to file a
counterclaim (Doc. 47) be CONDITIONALLY GRANTED, unless Defendant Ullah failed
to appear for his deposition on August 17, 2018, in which case the motion should be
DENIED.

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

8Defendants

indicate that they will “likely” file a motion “under the frivolous litigation rules and/or a motion
to enforce” the prior Settlement Agreement regardless of whether they are permitted to add the
counterclaim. (Doc. 47 at 2).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

VINCENT LUCAS,

Case No. 1:16-cv-1102
Plaintiff,

Barrett, J.
Bowman, M.J.

v.

TOTAL SECURITY VISION, INC., et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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