Gann et al v. Kolfage et al
REPORT AND RECOMMENDATION: The undersigned Magistrate Judge respectfully RECOMMENDS that the motion to reconsider (Docket Entry No. 120) of Defendants Logan Elia, Ashley Kolfage, Brian G. Kolfage, Jr., and Brian G. Kolfage, Sr., be DENIED. The unde rsigned Magistrate Judge further respectfully RECOMMENDS that the motion to dismiss (Docket Entry No. 142) of Defendants Logan Elia, Ashley Kolfage, Brian G. Kolfage, Jr., and Brian G. Kolfage, Sr., be: 1) GRANTED as to the claims brought against D efendant Logan Elia and these claims be DISMISSED WITH PREJUDICE; 2) GRANTED as to the claims of Plaintiff Darren Remington against Defendants Ashley Kolfage and Brian G. Kolfage, Jr., and these claims be DISMISSED WITH PREJUDICE; and 3) DENIED in all other respects. Signed by Magistrate Judge Barbara D. Holmes on 1/30/2017. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
and DARREN REMINGTON
BRIAN G. KOLFAGE, SR., et al.
Honorable Waverly D. Crenshaw, Jr., District Judge
REPORT AND RECOMMENDATION
By Order entered January 20, 2016 (Docket Entry No. 162), the Court referred the above
captioned pro se action to the Magistrate Judge for pretrial proceedings under 28 U.S.C.
§§ 636(b)(1)(A) and (B) and Rule 72 of the Federal Rules of Civil Procedure.
Presently pending before the Court are two motions filed by Defendants Logan Elia, Ashley
Kolfage, Brian G. Kolfage, Jr., and Brian G. Kolfage: 1) a motion to reconsider (Docket Entry
No. 120) a prior Order of the Court in the case, and, 2) a motion to dismiss (Docket Entry No. 142).
For the reasons set out below, the undersigned Magistrate Judge respectfully RECOMMENDS that
the motion to reconsider (Docket Entry No. 120) of Defendants Logan Elia, Ashley Kolfage, Brian
G. Kolfage, Jr., and Brian G. Kolfage, Sr., be DENIED and the motion to dismiss (Docket Entry
No. 142) of Defendants Logan Elia, Ashley Kolfage, Brian G. Kolfage, Jr., and Brian G. Kolfage,
Sr., be GRANTED IN PART AND DENIED IN PART.1
As to the claims brought against Defendant Logan Elia, the undersigned Magistrate Judge
respectfully recommends that the motion to dismiss be GRANTED and these claims be DISMISSED
WITH PREJUDICE. As to the claims of Plaintiff Darren Remington against Defendants Ashley
Kolfage and Brian G. Kolfage, Jr., recommendation is respectfully made that the motion to dismiss
I. FACTUAL BACKGROUND
Susanne Gann (“Gann”) and Darren Remington (“Remington”) (hereinafter referred to
collectively as “Plaintiffs”) are Tennessee citizens who reside together. They filed this pro se
lawsuit on August 7, 2014, see Docket Entry No. 1, and subsequently filed an amended complaint
on September 12, 2014. See Docket Entry No. 13. Seeking millions of dollars in damages, Plaintiffs
allege that they have been harassed, intimidated, threatened, and legally wronged by Brian G.
Kolfage, Sr. (“Kolfage Sr.”), Brian G. Kolfage, Jr. (“Kolfage Jr.”), Ashley Kolfage (“A. Kolfage”),
Scott Kuhnen (“Kuhnen”), and Logan Elia (“Elia”), all of whom are named as defendants and none
of whom reside in Tennessee.2 Kolfage, Jr., and A. Kolfage are husband and wife, and Kolfage, Sr.,
is the father of Kolfage, Jr.3
Plaintiffs asserts that Remington and Kolfage, Jr., are both veterans of the United States
military. Kolfage, Jr., is a triple amputee who was injured in combat and whose story has garnered
national media attention. Plaintiffs allege that both men also have an active presence on the internet
through involvement with web sites, Facebook, other social media, and internet communities. See
Amended Complaint at ¶¶ 15-46. Remington disagrees with many of the things Kolfage, Jr., posts
on the internet, particularly on issues related to the military, politics, Kolfage, Jr.’s own personal
be GRANTED and these claims be DISMISSED WITH PREJUDICE. Finally, recommendation
is respectfully made that the motion to dismiss be DENIED in all other respects. If this Report and
Recommendation is adopted, the claims remaining in the action would consist of Plaintiff
Remington’s claims against Defendant Kolfage, Sr., and Plaintiff Gann’s claims against the Kolfage
It appears that Defendant Kuhnen is a resident of North Carolina, Defendant Kolfage, Sr.,
is a resident of Michigan, and Mr. and Mrs. Kolfage are residents of Arizona.
The Court shall refer to the five defendants collectively as “Defendants” and to Defendants
A. Kolfage, Kolfage, Jr., and Kolfage, Sr., as the “Kolfage Defendants.”
history, and Kolfage, Jr.’s present day activities, believing them to be false, deceptive, seditious, and
generally unbefitting of a military veteran. Id. Plaintiffs assert that, in early 2014, Remington posted
a comment to the Facebook page of Kolfage, Jr., and also sent an e-mail intended for Kolfage, Sr.,
in which Remington suggested that Kolfage, Sr., and others cease harassment and bullying of another
individual. Id. at ¶¶ 69-73. Plaintiffs allege that, after these two internet interactions, they began
to experience a campaign of internet harassment conducted and orchestrated by the Kolfage
Defendants. Id. at ¶ 75. Examples of this alleged harassment include: defaming and threatening
internet posts; encouraging others to harass Plaintiffs; the creation of fake pages or accounts on
Facebook and LinkedIn that were used to either impersonate Plaintiffs, disparage or defame them,
or make harassing Facebook posts against them; hacking Plaintiffs’ Facebook accounts; publically
posting on the internet Plaintiffs’ home address, telephone numbers, full legal names, pictures, and
other “personal, sensitive information;” and attempting to have Remington fired from his
employment through the use of the wrongfully obtained information and through incendiary internet
posts falsely attributed to Remington. Id. at ¶¶ 46, 50, 52-54, 56-61, and 74.4 Plaintiffs assert that
this campaign of harassment caused them to file a criminal complaint against the Kolfage Defendants
with the Davidson County, Tennessee police department. Id. at ¶ 81. The Amended Complaint does
not aver the outcome of the criminal complaint.
The instant lawsuit was not the only lawsuit filed about the vitriolic internet interactions
between the Kolfage family, Plaintiffs, and other individuals. Prior to the instant lawsuit being filed,
Kolfage, Jr., and A. Kolfage themselves had filed a state court lawsuit in Arizona on June 13, 2014
Plaintiffs allege that other individuals were also the victims of harassment at the hands of
the Kolfage Defendants. See Amended Complaint at ¶¶ 62-66. The motions of two of these
individuals to intervene in this action were denied. See Docket Entry Nos. 87 and 197.
(“Arizona Case”) against Remington and six other individuals. In the lawsuit, which was later
removed to the United States District Court for the District of Arizona, Kolfage, Jr., and A. Kolfage
alleged that Remington and the other individuals had engaged in internet harassment against them
that was similar in kind to the harassment alleged by Plaintiffs in the instant action. See Kolfage,
et al. v. Caponecchia, et al., 2:14-1638 (D. Az. 2014).5 The Arizona Case involved claims of
defamation, intentional infliction of emotional distress, false light, and tortious interference against
Remington and the six other defendants. Ultimately, the Arizona Case was resolved via settlement
agreements, orders granting motions to dismiss, and the voluntary dismissal of certain defendants.
The Arizona Case was filed by Defendant Elia, an attorney licensed to practice in Arizona.
Plaintiffs Remington and Gann assert that Elia furthered and facilitated the campaign of harassment
against them by filing the Arizona Case and also attempted to “try the [Arizona case] in the media
instead of in court” by discussing the Arizona Case on multiple internet news and other sites and by
providing a copy of the complaint to the Arizona new media. See Amended Complaint at ¶¶ 79 and
II. PROCEDURAL BACKGROUND
In this lawsuit, Plaintiffs bring eleven causes of action: 1) civil conspiracy; 2) false light;
3) defamation; 4) tortious interference with a business relationship; 5) harassment; 6) intentional
infliction of emotional distress; 7) misuse of private information; 8) impersonation; 9) copyright;
10) abuse of process; and 11) unauthorized access to computer systems. See Amended Complaint
at ¶¶ 89-151.
Kolfage, Sr., was not a plaintiff in the Arizona Case.
A flurry of early motions were filed, including motions by Defendants to dismiss the action
because of the absence of personal jurisdiction over them. See Docket Entry Nos. 3, 35, and 38. By
Order entered July 20, 2015 (Docket Entry No. 97) (“July 20, 2015 Order”), the Court denied the
motions to dismiss to the extent that they were based on the defense of lack of personal jurisdiction.
Defendant Elia’s alternative argument for dismissal based on absolute privilege was denied without
prejudice. In accordance with the first-to-file doctrine, the Court also granted Plaintiffs’ motion to
stay and administratively closed the action in light of the Arizona Case, which was still ongoing at
the time. Id. at 4. All other motions that were pending at the time the stay was entered were denied
without prejudice. Id.
By Order entered November 23, 2015 (Docket Entry No. 104), the Court granted Plaintiffs’
motion to reopen because the Arizona Case had concluded. Subsequent to the reopening of the case,
another flurry of motion filing occurred. See Orders entered August 31, 2016 (Docket Entry
Nos. 195-198). Included in these motions was the motion of Defendant Kuhnen for summary
judgment as to the claims against him, which the Court granted by Order entered October 20, 2016
(Docket Entry No. 202). All motions have been addressed except for the pending motion to
reconsider and the pending motion to dismiss.
III. MOTION TO RECONSIDER
Defendants seek reconsideration of the July 20, 2015 Order to the extent that the Court found
that personal jurisdiction over them existed and denied their previous motion to dismiss that raised
this defense. In their motion, Defendants merely reargue the merits of the underlying issue of
whether personal jurisdiction exists and request dismissal of the case on this ground. See Docket
Entry No. 120. Plaintiffs respond in opposition, arguing that the motion is untimely and is also
defective because of misstatements contained in the motion. See Docket Entry No. 140. Plaintiffs
further argue that Defendants have not shown a basis for reconsideration of the Court’s prior
decision on the issue of personal jurisdiction. See Docket Entry No. 140. Defendants reply by
disputing that their motion is untimely or defective. See Docket Entry No. 154. They also reassert
their contention that Plaintiffs failed to carry their burden of showing that the Court has personal
jurisdiction over Defendants and argue that reconsideration of the issue is warranted because the
Court, in the July 20, 2015 Order, “did not articulate the legal or factual bases upon which it
determined that any of the named Defendants in this matter had sufficient contacts for the Court to
assert personal jurisdiction over them.” Id. at 9.
While the Federal Rules of Civil Procedure do not explicitly address motions to reconsider
interlocutory orders, “[d]istrict courts have authority both under common law and Rule 54(b) to
reconsider interlocutory orders and to reopen any part of a case before entry of final judgment.”
Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 Fed.App’x. 949, 959 (6th Cir. 2004) (citing
Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)); accord In re Life Investors Ins. Co. of Am.,
589 F.3d 319, 326 n.6 (6th Cir. 2009). Thus, district courts may “afford such relief from
interlocutory orders as justice requires.” Rodriguez, 89 Fed.App’x. at 959 (internal quotation marks
and brackets omitted). “Courts traditionally will find justification for reconsidering interlocutory
orders when there is (1) an intervening change of controlling law; (2) new evidence available; or
(3) a need to correct a clear error of law or prevent manifest injustice.” Louisville/Jefferson Cnty.,
Metro. Gov't v. Hotels.com, L.P., 590 F.3d 381, 389 (6th Cir. 2009) (citing Rodriguez, 89 Fed.App’x.
at 959). A motion to reconsider, however, does not permit a party to simply “reargue its prior
position in the hope that the court will change its mind.” Al–Sadoon v. FISI*Madison Fin. Corp.,
188 F.Supp.2d 899, 902 (M.D. Tenn. 2002). See Grogg v. Clark, No. 2:15-298, 2016 WL 1394534
at *1 (E.D. Tenn. Apr. 7, 2016); Mott v. Lucas, Nos. 1:10-0164 and 1:10-2752, 2011 WL 3705131
at *2 (N.D. Ohio Aug. 23, 2011).
After review of the parties’ filings on the motion to reconsider, the Court finds that
Defendants have not shown a basis that justifies reconsideration of the July 20, 2015 Order.
Defendants do not argue that an intervening change of controlling law has occurred or that the
existence of new evidence requires reconsideration of the July 20, 2015 Order. Nor have Defendants
shown that a clear error of law was made by the Court in the July 20, 2015 Order. Although
Defendants contend that “justice requires such reconsideration,” see Docket Entry No. 154 at 9, their
contention is essentially based upon their disagreement with the legal conclusions reached by the
Court on the personal jurisdiction issue and their belief that the Court’s analysis was insufficient.
Id. However, reconsideration of an order is not justified merely because a party disagrees with a
decision of the Court or believes that the decision was based on insufficient legal analysis. See
Starlink Logistics, Inc. v. ACC, LLC, No. 1:12-0011, 2013 WL 2177908 at *8 (M.D. Tenn. May 20,
2013) (Trauger, J.) (“While the plaintiff may disagree with the court's decision, that disagreement
alone is insufficient to warrant reconsideration.”).6 To the extent that Defendants contend that the
Court did not articulate the legal or factual bases supporting its conclusion in the July 20, 2015
Order, the Court disagrees. The July 20, 2015 Order clearly contained the Court’s legal and factual
analysis of the personal jurisdiction defense at issue and the analysis upon which the Court based its
Because the Court finds that the motion to reconsider warrants denial on its merits, it is
unnecessary to address Plaintiffs’ timeliness or “defects” arguments against the motion.
ultimate conclusion. While the Court did not issue a lengthy order on the issue, its analysis was
certainly not perfunctory or so lacking as to be meaningless.
IV. MOTION TO DISMISS
The Kolfage Defendants argue that Plaintiffs’ claims are barred by res judicata in light of
the dismissal on the merits in the Arizona Case. See Memorandum in Support (Docket Entry
No. 143) at 6-10. They further argue that Plaintiffs have waived their right to pursue their claims
in the instant action because the claims were compulsory counterclaims that should have been raised
and litigated in the Arizona Case. Id. at 11-14. Defendant Elia argues that he is entitled to an
absolute privilege from liability on the claims against him because the factual basis for the claims
are actions that he took as the attorney representing Kolfage, Jr., and A. Kolfage in the Arizona Case.
Id. at 14-16.
Plaintiffs oppose the motion to dismiss, arguing that Defendants are not permitted by
Rule 12(g)(2) of the Federal Rules of Civil Procedure to file a second motion to dismiss because they
filed a motion for reconsideration of their previously denied motion to dismiss. See Response in
Opposition (Docket Entry No. 163) at 1-2. They also argue that res judicata does not apply and that,
regardless, res judicata would not bar Plaintiff Gann from pursuing her claims because she was not
a party in the Arizona Case. Id. at 2-6.
As an initial matter, the Court finds no procedural irregularity with Defendants’ motion to
dismiss. The Court specifically denied Defendant Elia’s prior motion to dismiss without prejudice
to the absolute privilege defense and, thus, preserved Defendant Elia’s right to raise this defense in
a subsequent motion. Additionally, the defenses raised by the Kolfage Defendants in the instant
motion to dismiss were not available at the time they filed their previous motion to dismiss, and
Plaintiffs have not set forth any persuasive support for their contention that Rule 12(g)(2) bars the
instant motion because Defendants have filed a motion to reconsider the denial of their prior motions
For purposes of a motion to dismiss brought under Rule 12(b)(6), the Court must take all the
factual allegations in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim for relief that is plausible on its face. Id. A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. Id. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. When
there are well-pleaded factual allegations, the Court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief. Id. at 679. A legal conclusion couched
as a factual allegation need not be accepted as true on a motion to dismiss, nor are recitations of the
elements of a cause of action sufficient. Fritz v. Charter Township of Comstock, 592 F.3d 718, 722
(6th Cir. 2010).
In reviewing the motion to dismiss, the Court can consider the orders and docket entries in
the Arizona Case without converting the motion to a motion for summary judgment. See Jackson
v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999), overruled on other grounds by Swierkiewicz
v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (in ruling on a Rule 12(b)(6)
motion, the court may “consider public records, matters of which a court may take judicial notice,
and letter decisions of governmental agencies”); Vaughn v. Metro. Gov't of Nashville & Davidson
Cty., No. 3:12-01320, 2014 WL 234200, at *3 (M.D. Tenn. Jan. 22, 2014) (Trauger, J.); Lee v. Dell
Products, L.P., 236 F.R.D. 358, 361 (M.D. Tenn. 2006).
A. Defendant Elia
The motion to dismiss should be granted as to Defendant Elia. Defendant Elia has set out
a legally compelling argument for dismissal of the claims brought against him based on absolute
privilege. See Simpson Strong-Tie Co., Inc. v. Stewart, Estes & Donnell, 232 S.W.3d 18, 27 (Tenn.
2007). Other than raising the Rule 12(g)(2) argument against the filing of the motion to dismiss,
which the Court has found to be unpersuasive, Plaintiffs have not responded to Defendant Elia’s
argument, see Docket Entry No. 163, and have, thus, waived any rebuttal to his legal argument for
dismissal. Scott v. State of Tennessee, 878 F.2d 382, 1989 WL 72470, *2 (6th Cir.1989)
(unpublished table decision). In the absence of a responsive argument from Plaintiffs showing why
their claims against Defendant Elia should not be dismissed, it is not the duty of the Court to find
grounds to defeat the motion to dismiss as it pertains to Defendant Elia. See Guarino v. Brookfield
Township Trustees, 980 F.2d 399, 406 (6th Cir. 1992).
B. Kolfage Defendants
Plaintiff Remington’s claims against Kolfage, Jr., and A. Kolfage are waived because
Remington failed to assert the claims as counterclaims in the Arizona Case. Rule 13(a) of the
Federal Rules of Civil Procedure provides:
A pleading must state as a counterclaim any claim that—at the time of its
service—the pleader has against an opposing party if the claim: (A) arises out of the
transaction or occurrence that is the subject matter of the opposing party's claim; and
(B) does not require adding another party over whom the court cannot acquire
Fed.R.Civ.P. 13(a)(1). A “party's failure to plead a compulsory counterclaim forever bars that party
from raising the claim in another action.” Sanders v. First Nat'l Bank & Trust Co. in Great Bend,
936 F.2d 273, 277 (6th Cir. 1991) (citing Baker v. Gold Seal Liquors, Inc., 417 U.S. 467, 469 n. 1,
94 S.Ct. 2504, 41 L.Ed.2d 243 (1974)). See also Bluegrass Hosiery, Inc. v. Speizman Indus., Inc.,
214 F.3d 770, 772 (6th Cir. 2000).
After review of the filings in the Arizona Case and Plaintiffs’ pleadings in this action, the
Court finds that all claims sought to be advanced by Remington against Defendants Kolfage, Jr., and
A. Kolfage in this action constitute counterclaims that existed at the time he filed his answer in the
Arizona Case.7 The issues of law and fact raised by Remington’s claims are largely the same as
those involved in the Arizona Case. Remington’s claims clearly have enough of a logical
relationship to the transactions and occurrences that were at issue in the Arizona Case to render the
claims compulsory counterclaims that should have been raised in the Arizona Case and, thus, are
now barred from being heard. See Bauman v. Bank of Am., N.A., 808 F.3d 1097, 1101 (6th Cir.
2015); Sanders, 936 F.2d at 277. Rule 13(a) was designed to encourage judicial efficiency, prevent
multiple actions, and resolve in a single lawsuit all disputes arising from a common fact pattern, and
is particularly aimed at prohibiting a litigant from pursuing a second action against another party
when the litigant could have asserted his claims as counterclaims in the first action. Southern
Constr. Co. v. Pickard, 371 U.S. 57, 83 S.Ct. 108, 9 L.Ed.2d 31 (1962); Bluegrass Hosiery, 214 F.3d
Remington filed his answer in the Arizona Case on August 18, 2014, 11 days after filing
the instant lawsuit. See Docket Entry No. 11 Kolfage, et al. v. Caponecchia, et al.. A large part of
his answer is a verbatim copy of parts of his pleadings in the instant lawsuit.
at 772. These concerns are directly on point with respect to Plaintiff Remington and bar him from
proceeding on his claims against Defendants Kolfage, Jr., and A. Kolfage in this case.
However, the language of Rule 13(a) restricts its application to parties who were involved
in both lawsuits at issue. Accordingly, because Defendant Kolfage, Sr., was not a party plaintiff in
the Arizona Case and was, thus, not an “opposing party” to Remington in the Arizona Case,
Remington’s claims against Kolfage, Sr., are not waived under Rule 13(a). Similarly, because
Plaintiff Gann was not a party in the Arizona Case who filed a pleading, she cannot be said to have
waived any claims in the instant action under Rule 13(a).
Plaintiff Gann’s status as a non-party in the Arizona Case is also determinative of the res
judicata defense raised by the Kolfage Defendants against her claims. The doctrine of res judicata
provides that a final judgment on the merits of an action precludes the “parties or their privies from
relitigating issues that were or could have been raised” in a prior action. Kane v. Magna Mixer Co.,
71 F.3d 555, 560 (6th Cir. 1995) (citing Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398,
101 S.Ct. 2424, 2428, 69 L.Ed.2d 103 (1981)). Claim preclusion, which is the aspect of res judicata
raised by the Kolfage Defendants, requires a showing of the following four elements: (1) a final
decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same
parties or their privies; (3) an issue in the subsequent action which was litigated or which should
have been litigated in the prior action; and (4) an identity of the causes of action. Kane, 71 F.3d at
The preclusive effect of a federal-court judgment is determined by federal common law.
Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Stryker Corp. v. Nat'l
Union Fire Ins. Co. of Pittsburgh, PA, 681 F.3d 819, 824 (6th Cir. 2012).
There is no question that Plaintiff Gann was not a party in the Arizona case. Generally, one
is not bound by a judgment entered in a case in which he or she was not a party. Taylor v. Sturgell,
553 U.S. 880, 884, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). Although a non-party to a prior case
may, in some specific situations, be barred by res judicata from pursuing claims in the same manner
as a party to the prior case, id. at 893-95, the Kolfage Defendants do not show that any recognized
exception to the general rule applies to Plaintiff Gann based upon the facts of this action or that Gann
is in legal privity with Remington. The Kolfage Defendants’ rely on two cases9 from outside the
Sixth Circuit as support for the contention that Gann either should have intervened in the Arizona
Case or that Remington sufficiently represented Gann in the Arizona case and, thus, res judicata
should apply to her claims. See Defendants’ Brief in Support (Docket Entry No. 143) at 7-8.
However, the Kolfage Defendants have not shown how the legal propositions in those cases apply
to the facts of this action and, further, have not shown how the facts of this action support applying
res judicata to a nonparty such as Gann under the prevailing precedent within this Circuit. See
generally Becherer v. Merrill Lynch, Pierce, Fenner, and Smith, Inc., 193 F.3d 415 (6th Cir. 1999)
(a nonparty may be bound by a prior judgment if the nonparty is a successor in interest to a party,
if the nonparty controlled the original suit, or if the nonparty is adequately represented by a precluded
party). Their reasons for why res judicata should apply to Plaintiff Gann are essentially akin to the
arguments for “virtual representation” that were rejected in Taylor.
The Kolfage Defendants further argue that, 1) the motion filed by Plaintiffs to stay this action
pending resolution of the Arizona case indicates Plaintiff Gann’s intention to be bound by the
Lynch v. Merrell-Nat'l Labs. Div. of Richardson-Merrell, Inc., 646 F. Supp. 856, 865 (D.
Mass. 1986) aff'd sub nom. Lynch v. Merrell-Nat'l Labs., Div. of Richardson-Merrell, Inc., 830 F.2d
1190 (1st Cir. 1987), and Nat’l Wildlife Fed’n v. Gorsuch, 744 F.2d 963, 791 (3rd Cir. 1984).
process and decision of the Arizona court, and, 2) the Court, in granting the motion to stay, indicated
that it was “inclined” to agree that Plaintiff Gann’s interests were properly represented and at stake
in the Arizona Case. See Defendants’ Reply (Docket Entry No. 200) at 4. This argument fails. The
motion to stay (Docket Entry No. 64) did not indicate an intention, either explicitly or implicitly, on
the part of Plaintiff Gann to be bound by the decision in the Arizona Case, and the Court, in granting
the stay, did not express any opinion on the preclusive effect of a decision in the Arizona Case. See
Order entered July 20, 2015 (Docket Entry No. 97) at 4. The Kolfage Defendants’ interpretation of
these two filings is simply unsupported by the filings themselves. To be sure, Plaintiffs Gann and
Remington advance similar claims and have jointly litigated this lawsuit as co-plaintiffs and they
have overlapping interests. However, these factors are not themselves sufficient to support claim
preclusion against Plaintiff Gann based on the Arizona Case. See Northeast Ohio Coalition for the
Homeless v. Husted, 837 F.3d 612, 623 (6th Cir. 2016) (nonparties to a prior suit were not bound by
the judgment in the prior suit even though they were coparties in a subsequent suit with a party to
whom the judgment may have preclusive effect).
The Court acknowledges that the instant lawsuit, when viewed alongside the Arizona Case
and the manner in which it proceeded, presents somewhat of a convoluted mess. The Court also
wonders why, in light of the instant action, the resolution of the Arizona Case was not structured in
a way that made it undisputedly clear that the instant Plaintiffs and the Kolfage Defendants intended
to make the resolution of the Arizona Case the full and final resolution of all claims between these
parties. Nonetheless, while the Court finds that Rule 13(a) clearly bars some of the claims brought
by Plaintiff Remington, the Court does not find that the arguments raised by the Kolfage Defendants
in their motion suffice to meet their burden of showing that the affirmative defense of res judicata
requires the dismissal of all of the claims brought in this action.
Based on the foregoing, the undersigned Magistrate Judge respectfully RECOMMENDS that
the motion to reconsider (Docket Entry No. 120) of Defendants Logan Elia, Ashley Kolfage, Brian
G. Kolfage, Jr., and Brian G. Kolfage, Sr., be DENIED.
The undersigned Magistrate Judge further respectfully RECOMMENDS that the motion to
dismiss (Docket Entry No. 142) of Defendants Logan Elia, Ashley Kolfage, Brian G. Kolfage, Jr.,
and Brian G. Kolfage, Sr., be:
1) GRANTED as to the claims brought against Defendant Logan Elia and these claims be
DISMISSED WITH PREJUDICE;
2) GRANTED as to the claims of Plaintiff Darren Remington against Defendants Ashley
Kolfage and Brian G. Kolfage, Jr., and these claims be DISMISSED WITH PREJUDICE; and
3) DENIED in all other respects.10
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of the Report and Recommendation upon the party and
must state with particularity the specific portions of this Report and Recommendation to which
objection is made. Failure to file written objections within the specified time can be deemed a
waiver of the right to appeal the District Court's Order regarding the Report and Recommendation.
If this Report and Recommendation is adopted, the claims remaining in the action would
consist of Plaintiff Remington’s claims against Defendant Kolfage, Sr., and Plaintiff Gann’s claims
against the Kolfage Defendants.
See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters,
638 F.2d 947 (6th Cir. 1981).
BARBARA D. HOLMES
United States Magistrate Judge
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