ENSLIN v. THE COCA-COLA COMPANY et al

Filing 210

OPINION/ORDER THAT PLAINTIFF'S MOTION FOR RECONSIDERATION OF SUMMARY JUDGMENT, ECF NO. 194, IS DENIED. IF PLAINTIFF WISHES TO MOVE FOR A DEFAULT JUDGMENT AGAINST THOMAS WILLIAM ROGERS, III, HE SHALL DO SO NO LATER THAN SEPTEMBER 29, 2017. IF N O MOTION IS FILED BY THAT DATE, HIS CLAIMS AGAINST ROGERS WILL BE DISMISSED FOR LACK OF PROSECUTION. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 8/29/17. (Attachments: # 1 Supplement) 8/30/17 ENTERED AND COPIES MAILED TO UNREP AND E-MAILED. (ky, )

HAVIIAND
HUGHES
WWW.HAVILANDHUGHES.COM

April 17, 2017

VIA ELECTRONIC MAIL
Hon. Joseph F. Leeson, Jr.
Edward N. Cahn Federal Courthouse
504 West Hamilton Street
Suite 2401
Allentown, PA 18101

Re:

FILED
AUG 30 2017

Shane K. Enslin v. The Coca-Cola Company, et al.
No. 2:14-cv-06476-JFL

KATE BARKMAN Clerk
By
Dep. Clerk

Dear Judge Leeson:
Pursuant to your March 31, 2017 Order (the "Order'), Plaintiff submits this letter as a
Status Report concerning the effect that the Order has on Plaintiffs claims against William
Rogers, III ("Rogers'). Plaintiff and the Class respectfully submit that the Order has no effect
on their claims against Rogers and seek leave to proceed with the litigation in the manner
addressed herein.
As you may recall, Plaintiff initiated the above-referenced lawsuit on November 12,
2014. Rogers was served on December 2, 2014. On February 6, 2015, Plaintiff filed a Notice of
Default by Rogers, which was opposed by the Coca-Cola Defendants via letter dated February
12, 2017. Essentially, the Coca-Cola Defendants argued that an entry of default against Rogers
was premature at that time and that it was unjust given that the Complaint asserted claims of
conspiracy between Rogers and the Coca-Cola Defendants as well as joint and several liability
against and among Rogers and the Coca-Cola Defendants. Your Honor held a telephone
conference on March 12, 2015 where Rogers' default status was discussed amongst Your Honor
and all represented parties. During that teleconference, Plaintiff and the Coca-Cola Defendants
were asked to provide letters to again address Rogers' default, which both did on March 17,
2015. Again, the Coca-Cola Defendants argued against the entry of a default judgment because
Plaintiff sought to hold Rogers and the Coca-Cola Defendants jointly and severally liable.
On November 11, 2015, this Court entered an Order pursuant to Federal Rule of Civil
Procedure 55(a) and directed the Clerk to enter default against Rogers.
The Order here has no effect on the Court's prior Order of Default for Plaintiff's pending
claims against Rogers. The Order does not eliminate the joint and several liability aspect of the
case against both Rogers and the Coca-Cola Defendants and, in fact, the Coca-Cola Defendants
are liable for Rogers' actions within the scope of his employment.

HAVILAND HUGHES
201 SOUTH MAPLE AVENUE. SUlTE 110 ·AMBLER, PA 19002. · P: 215-609-4661 · F. 215-392-4400

Hon. Joseph F. Leeson, Jr.
'April 17, 2017
Page 2 of3

Accordingly, Plaintiff respectfully requests that this Court:

1.

Enter a Default Judgment pursuant to Federal Rule of Civil Procedure
55(b);

2.

Allow Plaintiff to submit a Brief on the effect that the Final Default
Judgment has on the Coca-Cola Defendants, and

3.

Allow Plaintiff to submit a Brief respecting certification of the Class
claims against Rogers.

Plaintiff Is Entitled To A Default Judgment Against Rogers
Default was entered against Rogers for his failme to appear, plead or otherwise defend on
November 17, 2015. Now, it is appropriate for a Default Judgment to be entered. Since Rogers
and the Coca-Cola Defendants should be held jointly and severally liable, Plaintiff intends to
execute the Judgment against them; however, if this Court deems it appropriate, Plaintiff will
brief how a default judgment impacts the Coca-Cola Defendants despite the Order.

Plaintiff Is Entitled to Brief the Issue of Joint and Several Liability and Respondeat_
SuperiorNicarious Liability Against the Coca-Cola Defendants
As stated in the Complaint, Rogers and the Coca-Cola Defendants should be held jointly
and severally liable for the harms suffered by Plaintiff and the Class. The Coca-Cola Defendants
have not challenged such liability and, in fact, acknowledged the risk of such liability when
opposing default against Rogers. Entry of a Default Judgment is no longer "premature" under
the Coca-Cola Defendants' own theory and an assessment is appropriate at this time.

Plaintiff Is Entitled to Brief the Unresolved Class Certification Request In Light of the_
Order and Rogers' Default
Although the Order determined that the Class Certification portion of this case is moot, it
is not. Plaintiff and the Class request an opportunity to supplement their request for class
certification in light of the current posture of this case. Given that the Coca-Cola Defendants'
liability is not extinguished by the Court's entry of final judgment in favor of the Coca-Cola
Defendants, should the Court to so rule after considering Plaintiffs Motion for Reconsideration
filed last week, the entry of default judgment against Rogers then requires the Court to address
the remaining issues related to Plaintiff's unresolved request for class certification.

Hon. Joseph F. Leeson, Jr.
..April 17, 2017
Page 3 of3

Plaintiff appreciates the Court's timely consideration of these outstanding issues.

Respectfully submitted,

HAVILAND HUGHES
sf Donald E. Haviland Jr.
Donald E. Haviland, Jr. (PA 66615)
[e-mail]
William H. Platt II (PA 83585)
[e-mail]
Jay W. Chamberlin (PA 317191)
[e-mail]
201 South Maple Avenue
Suite 110
Ambler, PellllSylvania 19002
Phone: [phone]
Fax: [phone]

Counsel for Plaintiff,
Shane Ens/in, and the Class

cc:

All Counsel of Record (via Electronic Mail)

"

ReedSmith
Nipun J. Patel
Direct Phone: [phone]
Email: [e-mail]

Reed Smith LLP
Three Logan Square
1717 Arch St. - Suite 3100
Philadelphia, PA 19103
Tel [phone]
Fax [phone]
reedsmith.com

April 27, 2017

VIA ELECTRONIC MAIL
Honorable Joseph F. Leeson, Jr.
United States District Court
for the Eastern District "of Pennsylvania
Edward N. Cahn Courthouse
504 West Hamilton Street
Allentown, PA 18101
Re:

Shane Ens/in v. The Coca-Cola Company, et al.,
U.S.D.C. for the Eastern District of Pennsylvania, Case No.14-CV-06476

Dear Judge Leeson:
I write on behalf of the Coca-Cola Defendants in response to Plaintiffs letter of April 17, 2017
("PL Ltr."). In this letter, Plaintiff demands an entry of Default Judgment against Defendant William
Rogers, III ("Rogers") pursuant to Federal Rule of Civil Procedure 55(b). Plaintiff further demands that
he be allowed to brief the effect of such a Final Default Judgment against Rogers on the Coca-Cola
Defendants:
As stated in the Complaint, Rogers and the Coca-Cola Defendants should
be held jointly and severally liable for the harms suffered by Plaintiff and
the Class. The Coca-Cola Defendants have not challenged such liability
and, in fact, acknowledged the risk of such liability when opposing default
against Rogers. Entry of a Default Judgment is no longer "premature"
under the Coca-Cola Defendants' own theory and an assessment is
appropriate at this time.
(Pl. Ltr. at 2.) Plaintiff further demands that "Plaintiff Is Entitled to Brief the Unresolved Class
Certification Request In Light of the Order and Rogers' Default." (Id.) Plaintiff does not purport to
meet any reconsideration standard, but, in essence, asserts all of the relief demanded is his due given that
Rogers did not appear. As set forth below, Plaintiff is now demanding relief on a theory he did not
pursue through two years of active litigation, discovery, briefing, and case management. Plaintiff is
demanding a do-over after having tried, and failed, to prove any legal claim against the Coca-Cola
Defendants. See Ens/in v. The Coca-Cola Company, 136 F. Supp. 3d 654 (E.D. Pa. 2015); accord,
Ens/in v. Coca-Cola Company, No. 14-cv-06476, 2017 WL 1190979, at *l (E.D. Pa. 2017).

NEW YORK• LONDON• MONG KONG• CHICAGO• WASHINGTON, D.C. •BEIJING •PARIS• LOS ANGEL.ES• SAN FRANCISCO• PHILADELPlllA • SllANGlll\I •PITTSBURGH• HOUSTON
SINGAPORE• MUN\ CH• ABU DHABI •PRINCETON• NORlllERNVlRGIN\A • Wll.MlNGTON •SILICON Vl\LLEY • DUBl\J •CENTURY CITY• RICl-lMONO •ATHENS• KA.ll\KHSTAN

mane Be\hoo .omce Adm·1ri1stratNe Partner • A Um1ted L'1ab'1r1tv Partnersh'1p formed in the State o! Delaware

"

ReedSmith
April27,2017
Page2

While the Coca-Cola Defendants take no position as to whether Plaintiff should be granted a
Default Judgment against Rogers, the Court should deny ·Plaintiff the leave for the additional briefing he
requests. We ask that the Court make clear to Plaintiff that a Default Judgment against Rogers, if
granted, does not provide any basis to attack the Court's existing Orders, including judgment as a matter
of law for the Coca-Cola Defendants on all counts.

The Complaint Never Alleged A Viable Legal Basis To Impose Liability On The Coca-Cola Companies
For The Acts Of Rogers. And Plaintiff Never Tried To Prove One
Now, more than two years into this action, Plaintiff claims that "Plaintiff Is Entitled to Brief the
Issue of Joint and Several Liability and Respondeat SuperiorNicarious Liability Against the Coca-Cola
Defendants." (Pl. Ltr. at 2.) But in his 38-page, 9-count Complaint, Plaintiff never once alleged that the
Coca-Cola Defendants were vicariously liable for the actions of Rogers, or liable under a theory of
respondeat superior. (Dkt. No. 1.)
Plaintiff only mentions "joint and several liability" once in the Complaint, in connection with
solely one count - COUNT IX - CONSPIRACY/ CONCERT OF ACTION. The Court dismissed
Count IX as to the Coca-Cola Defendants. See Enslin, 136 F. Supp. 3d at 679-80. First, the Court found
that Plaintiff did not meet pleading standards as to any underlying fraud, making "only vague and
general allegations." Id. at 674. Second, the Court found as a matter of law that Plaintiffs conspiracy
claims failed, because Plaintiff did not plausibly allege "that the sole purpose of the alleged conspiracy
was to maliciously harm him." Id. at 679. In fact, fatal to his conspiracy claims, "Plaintiff freely admits
that the motivations behind the alleged conspiracy are unknown to Plaintiff." Id. at 680 (quotation marks
omitted). 1 The Court dismissed Plaintiff's claims of conspiracy, the sole claims demanding joint and
several liability, with prejudice. Id.
When Plaintiff later sought leave to file an Amended Class Action Complaint, even that
proposed Amended Complaint contained no allegations of vicarious liability, respondeat superior, or
joint and several liability. (Dkt. No. 127-2.) The proposed Amended Complaint also did not seek to
reinstate the dismissed claim for civil conspiracy. In any event, the Court found that even the
amendments that Plaintiff did propose were barred as untimely. Ens/in, 2017 WL 1190979, at *15-16.
In the Rule 26(f) Report submitted to the Court, including Plaintiff's Summary of Claims,
Defenses, and Relevant Issues, Plaintiff never stated any intention to raise or prove any theory by which
the Coca-Cola Defendants would be liable for the acts of Rogers. (Dkt. No. 33.) Plaintiff never asked
the Court to schedule any proceedings on those issues.

1

While the Court's decision was in response to a Motion to Dismiss by the Coca-Cola Defendants, the
same logic would compel dismissal of claims against Rogers. Since, as a matter of law, Plaintiff failed
to state an actionable conspiracy at all, it follows inescapably that Plaintiff failed to state an actionable
conspiracy among the Coca-Cola Defendants and Rogers. See, e.g., Frow v. De La Vega, 82 U.S. (15
Wall.) 552, 554 (1872) (finding it "unseemly and absurd, as well as unauthorized by law" for there to be
"one decree of the court sustaining the charge of joint fraud committed by the defendants; and another
decree disaffirming the said charge").

ReedSmith
April 27, 2017
Page 3

In June 29, 2016, the Court set a Scheduling Order requiring that "Plaintiff shall file any motion
for class certification no later than July 26, 2016." (Dkt. No. 122 at 3.) In his Motion for Class
Certification, brought against solely the Coca-Cola Defendants, Plaintiff cited to more than a dozen
allegedly common issues of law and fact to be litigated. (Dkt. No. 125-1 at 37-38.) None involved
vicarious liability, respondeat superior, or joint and several liability. Despite the entry of a default
against Rogers since November 11, 2015, Plaintiff made no argument that this default had any
consequence as to class certification.
Likewise, the Court ordered that "[a]ll dispositive motions shall be filed no later than December
21, 2016." (Dkt. No. 122 at 3.) Plaintiffs Motion for Partial Summary Judgment did not propose to
establish any vicarious liability, respondeat superior, or joint and several liability of the Coca-Cola
Defendants for the acts of Rogers. (Dkt. No. 168.) Plaintiff did not file any motion claiming that as a
matter of law the Coca-Cola Defendants were liable for Rogers. "When the Coca-Cola Defendants
moved for judgment as a matter of law on all counts, Plaintiff did not oppose on the basis of any alleged
vicarious liability. The same default that exists now against Rogers existed then.
This Court has provided Plaintiff ample opportunity to make his case. All of the relevant
deadlines have passed. As a matter of law, after two years of litigation, this Court found that Plaintiff
stated no case against the Coca-Cola Defendants. Plaintiff cannot be allowed to pretend that all of his
choices (and decisive losses) to date never happened.
Plaintiff's Suggestion That The Coca-Cola Defendants Have Admitted To Joint And Several Liability Is
False
This Court knows the truth of the matter, but the Coca-Cola Defendants restate it for the record.
Plaintiff asked the clerk to enter default against Rogers "for failure to pled [sic] or otherwise defend in
accordance with Fed. R.C.P 55(a)." (Dkt. No. 13.)
The Coca-Cola Defendants asked that the Court decline to enter that default as: "Plaintiff alleges
that both the Coca-Cola Defendants and Defendant Roger;:; 'conspired' together to 'defraud' Plaintiff.
Based on these accusations, Plaintiff alleges that the Coca-Cola Defendants and Defendant Rogers
should be held jointly and severally liable for their alleged conspiracy." (Dkt. No. 22 at 2.)
As noted above, the Court subsequently dismissed the relevant conspiracy claim - the only claim
demanding joint and several liability - with prejudice. The dismissal with prejudice of the conspiracy
claim mooted the stated concern of the Coca-Cola Defendants. And, as detailed above, Plaintiff never
even tried to resurrect this claim.
Following the Coca-Cola Defendants' letter concerning the entry of default, the Court did enter
default under Rule 55(a) against Rogers. (Dkt. No. 37.) In so doing, the Court further, meticulously,
addressed the concerns of the Coca-Cola Defendants:
The Coca-Cola Defendants oppose the entry of a default against
Defendant [Rogers] because Plaintiff's counsel "may believe he can use
the entry of default against Defendant Rogers to estop the Coca-Cola

••

ReedSmith
April 27, 2017
Page4

Defendants from contesting an issue of law or fact or that entry of
default would be admissible evidence against the Coca-Cola
Defendants at a future date." See Letter from Coca-Cola Defendants, at
3, Mar. 17, 2015, ECF No. 22. However, an entry of default cannot be
used in that manner, and the Coca-Cola Defendants' fear that Plaintiffs
counsel may believe otherwise does not warrant denying Plaintiff's
request to enter a default against Defendant Rogers.
(Dkt. No. 37 at 1, n.4 (emphasis added).)

Plaintiff has done literally nothing since entry of that decision to prove, or even argue, that the
Coca-Cola Defendants are liable for the acts of Rogers. The Third Circuit Court of Appeals has refused
to impose liability on a theory respondeat superior on the basis of employee defaults. See, e.g., Boyd v.
NJ. Dept of Corrections, 583 F. App'x. 30, 32 (3d Cir. 2014), cert. denied, 135 S.Ct. 2374 (2015) (nonprecedential). In Boyd, plaintiffs brought a sexual harassment and discrimination suit against their
former employer and multiple co-workers. One such co-worker did not respond, and the District Court
entered a default judgment against him. The District Court then dismissed all claims against the
employer, Department of Corrections, on the pleadings. On appeal, plaintiffs argued that the employer:
should be liable under a theory of respondeat superior for [the coworker's] default judgment. She contends that an employer is subject to
liability for torts committed by employees acting within the scope of their
employment ...

Id. at 32. The Third Circuit rejected this application of respondeat superior, finding that plaintiffs cited
"no authority for the separate proposition that an employer is liable for a default iudgment
against an employee." Id. (emphasis added). The Third Circuit affirmed the dismissal of the defendant
employer despite the default judgment against the co-defendant employee.
The Coca-Cola Defendants trust this Court's assurances that Plaintiff will not be able to use the
default of Rogers to prejudice the Coca-Cola Defendants, who have completely prevailed in this matter
and, as a matter of law, should be accorded the benefit of finality. Plaintiffs demands should be denied.

·-----

Respectfully submitted,

.//

"

"

"

Nipnn J. Patel

cc:

All counsel of record (via email)