Lucas v. Total Security Vision, Inc. et al

Filing 84

ORDER adopting Report and Recommendation re 57 Report and Recommendation granting in part 36 Motion to Strike; granting 47 Motion for Leave to File a Counterclaim. Signed by Judge Michael R. Barrett on 1/14/19. (ba)(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,
Plaintiff,
vs.
Total Security Vision, Inc., et al.,
Defendants.

:
:
: Case No. 1:16-cv-01102
:
: Judge Michael R. Barrett
:
:
:
:
:
:

ORDER
This matter is before the Court on the Magistrate Judge’s Report and
Recommendation (“R&R”). (Doc. 57). Plaintiff filed objections thereto, (Doc. 62), and
Defendants did not. The R&R relates to Plaintiff’s Motion to Strike, (Doc. 36), and
Defendants’ Motion for Leave to File a Counterclaim, (Doc. 47). The Magistrate Judge
accurately summarized the factual and procedural background of this case and the Court
will repeat that background only when necessary to address Plaintiff’s objections.

I. STANDARD OF REVIEW
Under 28 U.S.C. §636(b)(1), determinations made by a Magistrate Judge are
subject to the review of the district court. With respect to non-dispositive matters, and
when the Court receives objections to an R&R, “the district judge in the case must
consider timely objections and modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see Chesher v. Allen, 122 F. App'x

184, 187 (6th Cir. 2005) (“Rule 72(a) of the Federal Rules of Civil Procedure requires that
a district court judge find a magistrate judge's decisions concerning nondispositive
matters ‘clearly erroneous' before reversing any such decisions.”).

With respect to

dispositive matters, and when the Court receives objections to an R&R, the “district judge
must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). “The district judge may accept, reject, or
modify the recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Id.

II. ANALYSIS
a. Plaintiff’s Motion to Strike (Doc. 36)
The Magistrate Judge discussed Plaintiff’s Motion to Strike certain affirmative
defenses raised in Defendants’ Amended Answer along with Defendants’ Response to
Plaintiff’s Motion to Strike, (Doc. 57 at PageID 444-448), and recommends that Plaintiff’s
Motion to Strike be granted in part, and paragraphs 20, 22, 26, 27, 32, 37, 46, and 51 be
stricken from Defendants’ Amended Answer, and Plaintiff’s Motion be denied in part, and
paragraphs 38 and 50 remain in Defendants’ Amended Answer, (id. at PageID 450).
Neither party objected. The Court agrees and will adopt the recommendations.
b. Defendants’ Motion for Leave to File a Counterclaim (Doc. 47)
In Lucas v. Jolin, et al., Case No. 1:15cv108, Plaintiff sued Aurelio “Victor” Jolin,
Visram, Inc., Premium Outsourced Solutions Inc., and Shawn Wolmuth. Plaintiff also
sued Net VoIP Communications Inc. but, on May 31, 2016, the parties submitted a joint
motion to dismiss Net VoIP Communications Inc. as a defendant in that matter. Lucas v.

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Jolin, et al., Case No. 1:15cv108, (Doc. 80). In September 2016, the Court granted
Plaintiff’s motion for default judgment against Victor Jolin, Visram, Inc., Premium
Outsourced Solutions Inc., and Shawn Wolmuth and ordered those defendants “to pay
Plaintiff damages in the total amount of $45,600, together with costs, with interest to be
paid at the statutory rate from the date of final judgment until said judgment is satisfied”
and noted that all four defendants were jointly and severally liable. Lucas v. Jolin, et al.,
Case No. 1:15cv108, (Doc. 88).
In the matter currently before the Court, the Court granted Plaintiff leave to amend
his Complaint to add a claim. (Doc. 30); see (Docs. 26, 33). In his Amended Complaint,
Plaintiff includes a “claim for declaratory judgment” as “alternative grounds for relief” and
explains that he “ha[s] obtained a final judgment against Premium Outsourced Solutions
for the [telemarketing] calls described in this complaint. The amount of judgment is
$45,600 plus cost and interest. That judgment remains unsatisfied.” (Doc. 33 at PageID
319), (id. at PageID 320 (citing Lucas v. Jolin, et al., Case No. 1:15cv108)). Plaintiff states
that Defendant “Total Security Vision is in privity with Premium Outsourced Solutions . . .
in the same manner as if the persons in privity were named as parties in the judgment”
and concludes that “Total Security Vision is liable for the judgment against Premium
Outsources Solutions in the same manner as if Total Security Vision had been named in
the judgment.” (Doc 33 at PageID 319).
Defendants filed an Amended Answer, (Doc. 32), and, after obtaining new counsel,
filed the pending Motion for Leave to File a Counterclaim, (Doc. 47). In that Motion,
Defendants explain that “the current Defendants are in privity with the Defendant in [Case

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No. 1:15cv108] who settled all claims with this Plaintiff by [a Settlement] Agreement.”1
(Doc. 47 at PageID 380). Defendants state that the Settlement Agreement in Case No.
1:15cv108 “was intended to enable Defendants, and those in privity, to rely on the fact
they were, and still are, released from further litigation relating to the claimed unsolicited
telemarketing calls which were the subject of that prior suit and are now the subject of the
current suit as well.” (Id.). Defendants argue that the Settlement Agreement in Case. No.
1:15cv108 and the privity between Defendants in this case and the defendant—
presumably Net VOIP—in Case No. 1:15cv108 “allow” Defendants “to properly bring a
counter claim for breach of that [settlement] agreement and [to] seek compensation for
their actual and necessary damages surrounding the costs of defending against such a
breach.” (Id.).
In response, Plaintiff argues that Defendants’ Motion for Leave should be denied
on the grounds of undue delay, futility of amendment, and bad faith. (Doc. 55).
The Magistrate Judge recommends that Defendants’ Motion be granted, so long
as Defendant Ullah attended the scheduled August 17, 2018 deposition, 2 as the proposed
counterclaim “is based on a document—the Settlement Agreement in Case No. 1:15-cv108—that is clearly central to this case” and “there is no dispute that issues 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.” (Doc. 57 at PageID 449-450).

1 Defendants attach a Settlement Agreement, dated May 31, 2016, “between Vincent Lucas [] and Net VOIP
Communications, Inc.” to their proposed counterclaim. (Doc. 54, Attachment 1), (Doc. 63, Attachment 1).
That Settlement Agreement is signed by Plaintiff and Net VOIP Communications, Inc.’s “Duly Authorized
Representative,” “Mohammad A. Ullah.” (Doc. 54, Attachment 1), (Doc. 63, Attachment 1).
2

He did. (Doc. 58).

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In his objections, Plaintiff reiterates, often verbatim from his Response, that
Defendants’ Motion for Leave should be denied on the grounds of undue delay, futility of
amendment, and bad faith. Compare (Doc. 55), with (Doc. 62). He asserts that the
Magistrate Judge did not explicitly address his arguments regarding futility or bad faith.
(Doc. 62 at PageID 460-461). With respect to undue delay, he contends that Defendants
should have included their counterclaim in their initial Answer or Amended Answer. (Id.
at PageID 461). Regarding futility, he asserts that allowing Defendants to file their
counterclaim would be futile, as Defendants are not parties to the Settlement Agreement
in Case No. 1:15cv108. (Doc. 55 at PageID 407), (Doc. 62 at PageID 462-65). Regarding
bad faith, Plaintiff alleges that Defendants attempt to bring the counterclaim as “a scare
tactic” “in an effort to make their position look stronger in the mediation that they are
seeking.” (Doc. 55 at PageID 412), (Doc. 62 at PageID 465).
A court “should freely give leave” to file a counterclaim “when justice so requires.”
Fed. R. Civ. P. 15(a)(2). Justice does not require leave when the counterclaim would
cause undue delay, be futile, or is sought in bad faith. See Glazer v. Chase Home Fin.
LLC, 704 F.3d 453, 458 (6th Cir. 2013) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
After a review of the filings in this matter, the Court agrees with the Magistrate Judge’s
recommendation to grant Defendants’ Motion for Leave to File a Counterclaim. With
respect to undue delay, the Court notes that Plaintiff moved for and, ultimately, received
leave to amend his Complaint. (Docs. 30, 33). Moreover, Defendants’ current counsel
appears to concede some delay in seeking the Court’s leave to file the proposed
counterclaim. See (Doc. 47). Although the Court agrees with the Magistrate Judge that
Defendants’ current counsel could have been more forthcoming in acknowledging that

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Defendants were, indeed, represented by prior counsel when they filed their Amended
Answer, (Doc. 57 at PageID 449), the Court does not find evidence of disproportionate
delay in the filing of Defendants’ Motion for Leave. Regarding futility and bad faith,
Plaintiff concedes that “this could be handled by summary judgment,” but “believe[s] it
would be a better use of judicial resources to nip the counterclaim in the bud.” (Doc. 62
at PageID 462). The Court disagrees with Plaintiff’s assessment of judicial economy and
agrees with the Magistrate Judge that the Settlement Agreement in Case No. 1:15cv108
will remain central to the current matter. The Court finds that granting Defendants leave
to file the counterclaim will advance the interests of resolving the current matter on the
merits and eliminating the, possible, need for another lawsuit to be filed regarding the
same telemarketing calls.
Defendants have already filed identical copies of their Counterclaim, (Docs. 54,
63), and Plaintiff has filed an Answer, (Doc. 83), per the Magistrate Judge’s order and
instructions, (Doc. 80). Moreover, per the Magistrate Judge’s order, the discovery and
dispositive motions deadlines are extended to thirty (30) days following the date of this
order. (Id. at PageID 786).

III. CONCLUSION
In light of the above, it is hereby ORDERED that:
1. the Magistrate Judge’s R&R, (Doc. 57), is ADOPTED and Plaintiff’s
objections, (Doc. 62), are OVERRULED;
2. Plaintiff’s Motion, (Doc. 36) is GRANED IN PART, and paragraphs 20, 22,
26, 27, 32, 37, 46, and 51 are stricken from Defendants’ Amended Answer,

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AND DENIED IN PART, and paragraphs 38 and 50 remain in Defendants’
Amended Answer;
3. Defendants’ Motion for Leave to File a Counterclaim, (Doc. 47), is
GRANTED.
IT IS SO ORDERED.
/s Michael R. Barrett_______
Michael R. Barrett, Judge
United States District Court

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