Moran v. Svete et al

Filing 178

ORDER and REPORT AND RECOMMENDATIONS. It is respectfully recommended as follows: 1. Defendant Svete's Motion to Dismiss (Doc. 145 ) be DENIED WITHOUTPREJUDICE; 2. Recognizing that Defendant has attempted to appeal a number of non-dispositive or ders in this case, the Court notes that this Order/Report and Recommendation does not concern the entry of final judgment of any matter. The Court further finds that any appeal of this Order/Report and Recommendation would not be taken in good faith, and therefore RECOMMENDS that if Defendant does attempt to appeal he be denied leave to proceed in forma pauperis on appeal. In addition, the Court therefore ORDERS as follows: 1. Doc. 160 is DENIED AS MOOT; and 2. Docs. 154 , 156 , 161 , 170 , and 175 are DENIED.3. The Clerk is ORDERED serve a copy of this Order/Report and Recommendation toDefendant at his prison address. Objections to R&R due by 3/5/2012. Signed by Magistrate Judge Michael J Newman on 2/16/2012. (mdf1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION, AT DAYTON
H. THOMAS MORAN, II
in his Capacity as Receiver of
the Assets of Lifetime Capital,
Inc. and Certain Affiliated Persons
and Entities,

:
:

Civil Action No. 3:05-cv-0072

:
Judge Thomas M. Rose

Plaintiff,

:
Magistrate Judge Michael J. Newman

vs.

:

DAVID SVETE,

:

Defendant.

:

ORDER and
REPORT AND RECOMMENDATION1

This case is before the Court upon seven motions. (Docs. 145, 154, 156, 160, 161, 170, 175).
Six motions have been filed by Defendant David Svete, who appears pro se (hereinafter
“Defendant”); the seventh is brought by the Receiver (hereinafter “Plaintiff”). All seven motions
are ripe for decision.
I.
Defendant’s “Motion to Vacate Notation Order Granting Motion for Leave of
D. Benham Kirk, Jr. to appear Pro Hac Vice” (Doc. 160)
On June 27, 2011, Defendant filed a motion requesting that the Court vacate its approval of
Plaintiff’s counsel, D. Benham Kirk, Jr., to appear pro hac vice. However, on July 27, 2011 -- one
month after Defendant filed this motion -- Judge Rose ruled on this precise issue and overruled

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Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendation.

Defendant’s objections (doc. 157) to Mr. Kirk’s pro hac vice approval. (See doc. 171). Given the
Court’s prior ruling, defendant’s motion (doc. 160) -- which is duplicative of his objections on this
issue -- is DENIED AS MOOT.
II.
Defendant’s Motions Requesting the Court To Take “Judicial Notice” of His Filings
in Another Matter (Docs. 156, 170)
Defendant has filed two motions asking the Court to take “judicial notice” of various filings
he has submitted in Davis v. Lifetime Capital, Inc., No. 3:04-cv-59, a case presently before
Magistrate Judge Sharon L. Ovington. (Docs. 156, 170). In both motions, Plaintiff cites to Rule 201
of the Federal Rules of Evidence in support of his position that the Court should take judicial notice
of all of his filings in Davis.
Defendant’s reliance on Rule 201 is misplaced. Rule 201 states, in pertinent part:
(b) Kinds of Facts That May Be Judicially Noticed. The court may
judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction;
or
(2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.
F.R.E. 201(b). Defendant’s filings in Davis are not the type of fact subject to judicial notice
pursuant to Federal Rule of Evidence 201(b). Therefore, Defendant’s motions (docs. 156, 170)
requesting such are DENIED.
III.
Defendant’s Motions Regarding Alleged Ex-Parte Communications (Docs. 154, 161)
Defendant has filed numerous motions in this case alleging that Plaintiff’s counsel has
wrongfully engaged in ex-parte communications with Magistrate Judge Ovington. Presently, two
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motions are before the Court where Defendant, once again, makes these allegations. (Docs. 154,
161).
In his motion captioned “Motion for a List of All Ex-Parte Communications the Plaintiff has
had with this [C]ourt...” (doc. 154), Defendant references a “hearing” that purportedly took place
on April 29, 2010 (PageID 1530), and a September 8, 2010 “telephone conference” (PageID 1531)
in support of his allegations of improper behavior. The Docket Sheet for this case reveals that the
Court held no hearings or proceedings on those dates. His demand (doc. 154) therefore lacks merit.
Similarly, in his motion captioned “Notice of Pattern of Ex-Parte Communications...[and]
Request for Judicial Notice Pursuant to Rule 201 of the Federal Rules of Evidence” (doc. 161),
Defendant again alleges improper ex-parte communications. As the relief requested his motion,
Defendant asks that the Court “take judicial notice of the ex-parte contacts in the related Davis
action, as well as the Sixth Circuit Court of [A]ppeals.” (Id. at PageID 1616).
Defendant’s motions are comprised of nothing more than unsupported accusations, and
exclusively reference proceedings which may or may not have taken place in the Davis case.
Defendant’s filings in this case, which exclusively reference proceedings in Davis, are improper.2
Moreover, as discussed supra, Defendant’s filings from Davis are not the types of facts subject to
judicial notice pursuant to Federal Rule of Evidence 201(b).
Defendant’s motions regarding purported ex-parte communications (docs. 154, 161) lack
merit, and are therefore DENIED.

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The Court notes that Judge Rose, the U.S. District Judge to whom this case is assigned, has
already ruled on Defendant’s numerous allegations of impropriety and denied a similar motion filed
by Defendant on February 22, 2011. (See docs. 114, 130). Additionally, regarding Davis, the Court
notes that Defendant was dismissed as a party in that case on February 27, 2009. (See Case No.
3:04-cv-59, Doc. 1014).
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IV.
Defendant’s Motion to Dismiss For Lack of Subject Matter Jurisdiction and
Plaintiff’s Motion to Strike Defendant’s Responsive Filing (Docs. 154, 161)
The issue in this case of whether Plaintiff’s claims are properly before this Court -- or
whether they are to be heard before an arbitrator -- is one that has been the subject of many briefs
and numerous appeals. At the direction of the Sixth Circuit, this Court has been ordered to “engage
in a limited review to determine not only whether there is an agreement to arbitrate, but also whether
the specific dispute falls within the substantive scope of that agreement.” Moran v. Svete, 366 Fed.
Appx. 624, 632 (6th Cir. 2010).
In response to the Sixth Circuit’s ruling, on April 2, 2010, Magistrate Judge Ovington
ordered the parties to brief their arguments regarding the arbitration issue. (Doc. 71). Defendant
filed several motions to extend the Court’s briefing schedule. (Docs. 72, 75, 76, 81, 90). On April
8, 2011, Magistrate Judge Ovington issued a new briefing schedule. (Doc. 130). The Scheduling
Order established May 9, 2011 as the cut-off date for the parties to file “their respective Memoranda
concerning the arbitration provision and addressing the pertinent issues identified by the Court of
Appeals’ decision,” and set June 9, 2011 as the cut-off date for the parties to file a reply to the
opposing party’s memorandum. (Id.).
Plaintiff’s “Memorandum Concerning Arbitration” was filed on May 9, 2011. (Doc. 143).
Defendant’s memorandum on the issue of arbitration, captioned as a “Motion to Dismiss, and, in the
Alternative, Stay, For Lack of Subject Matter Jurisdiction,” was filed on May 16, 2011. (Doc. 145).
Pursuant to the Scheduling Order, Plaintiff filed a responsive brief on June 9, 2011 (doc. 148);
Defendant’s responsive brief was not filed until August 10, 2011.(Doc. 174). On August 24, 2011,

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Plaintiff filed a motion to strike Defendant’s 68-page responsive filing.3 (Doc. 175). In support of
his motion, Plaintiff cites Rule 7.2(a)(3) of the Southern District’s Local Rules, which states:
Memoranda in support of or in opposition to any motion or application to the Court
should not exceed twenty (20) pages. In all cases in which memoranda exceed
twenty (20) pages, counsel must include a combined table of contents and a succinct,
clear and accurate summary, not to exceed five (5) pages, indicating the main
sections of the memorandum, the principal arguments and citations to primary
authority made in each section, as well as the pages on which each section and any
sub-sections may be found.
S. D. Ohio Civ. R. 7.2(a)(3).
Because Defendant’s memorandum on the issue of arbitration is captioned as a “motion to
dismiss” -- a dispositive motion -- it is ripe for Report and Recommendation.
At the outset, the Court notes that on November 18, 2011, Plaintiff filed a motion for
summary judgment. (Doc. 177). The Court further notes that because of the Sixth Circuit’s
independent directive to the Court to consider the overarching issue of arbitration in this case, if, in
conducting its review, the Court determines that some or all of Plaintiff’s claims are to be
adjudicated by an arbitrator, the Court would be required to stay these proceedings pending
arbitration independent of Defendant’s pending “Motion to Dismiss” (doc. 145).
Furthermore, in order to comply with the Sixth Circuit’s directive, the Court must engage
in an in-depth review of the facts of this case, the hundreds of pages of briefings and exhibits that

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Defendant’s responsive filing was not received by the Clerk of Courts until August 10,
2011. The Court notes that although the Certificate of Service attached to Defendant’s submission
is dated June 9, 2011 -- the due date -- the document took more than two months to reach the Clerk.
Moreover, Plaintiff’s motion to strike only references the page length -- not the timeliness. While
the Court is suspicious of the length of time it took for Defendant’s brief to reach the Clerk and
could strike the brief as untimely and non-compliant with the Court’s Local Rules, the Court, as
discussed infra and out of an abundance of caution, will consider the arguments contained therein
when it addresses the merits of the arbitration issue in its Report & Recommendation on Plaintiff’s
motion for summary judgment.
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the parties have submitted on the issue of arbitration throughout these proceedings, and a discussion
of the applicable law. Much of the Court’s analysis regarding the facts, parties’ positions, and the
law will overlap with the necessary analysis the Court will conduct in issuing its Report and
Recommendation on Plaintiff’s motion for summary judgment.
Based on the Sixth Circuit’s directive, the Court’s omnipresent duty to consider sua sponte
issues regarding subject matter jurisdiction, see Answers in Genesis of Ky., Inc. v. Creation
Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009), and the overlap of the facts, arguments, and
law that the Court must address in its Report and Recommendation on Plaintiff’s summary judgment
motion, the Court RECOMMENDS that Defendant’s motion to dismiss (doc. 145) be DENIED
WITHOUT PREJUDICE to the arguments raised therein. Given its interest in judicial efficiency,
the Court will fully consider and address both parties’ arguments on the issue of arbitration -including Defendant’s responsive filing (doc. 174) in its entirety -- and will conduct its analysis
regarding the issue, as directed by the Sixth Circuit, in its forthcoming Report and Recommendation
on Plaintiff’s summary judgment motion. As such, Plaintiff’s motion to strike (doc. 175) is
DENIED.
V.
Based upon the foregoing, the Court therefore RECOMMENDS as follows:
1.

Defendant Svete’s Motion to Dismiss (Doc. 145) be DENIED WITHOUT
PREJUDICE for the reasons set forth above;

2.

Recognizing that Defendant has attempted to appeal a number of non-dispositive
orders in this case, the Court notes that this Order/Report & Recommendation does
not concern the entry of final judgment of any matter. The Court further finds that
any appeal of this Order/Report & Recommendation would not be taken in good
faith, and therefore RECOMMENDS that if Defendant does attempt to appeal he
be denied leave to proceed in forma pauperis on appeal.

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In addition, based upon the foregoing, the Court therefore ORDERS as follows:
1.

Doc. 160 is DENIED AS MOOT for the reasons set forth above; and

2.

Docs. 154, 156, 161, 170, and 175 are DENIED for the reasons set forth above.

3.

The Clerk is ORDERED serve a copy of this Order/Report & Recommendation to
Defendant at his prison address.
s/Michael J. Newman
United States Magistrate Judge

February 16, 2012

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(e), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ. P.
5(b)(2)(B)(C), or (D) and may be extended further by the Court on timely motion for an extension.
Such objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendations are based in
whole or in part upon matters occurring of record at an oral hearing, the objecting party shall
promptly arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs.
A party may respond to another party’s objections within fourteen days after being served with a
copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140
(1985).

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