Cunningham v. Shoutpoint, Inc. et al

Filing 135

REPORT AND RECOMMENDATION re 120 MOTION to Dismiss and MOTION to Strike 113 Amended Complaint filed by Amy Louise Montes. The undersigned recommends that the Plaintiff's Motion to Dismiss with prejudice as to Defendants Michael Montes, Amy Montes and Tollfreezone.com, Inc. (Docket No. 134) should be GRANTED. As a result of the recommendation that the Motion to Dismiss with prejudice be GRANTED, the undersigned further recommends that the Motions to Dismiss (Docket No. 1 20, 123) as well as the Motion for Summary Judgment (Docket No. 129) filed by these Defendants be DENIED as moot. Signed by Magistrate Judge Jeffery S. Frensley on 3/9/2018. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CRAIG CUNNINGHAM
Plaintiff,
v.
SHOUTPOINT, INC., et al.
Defendants.

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Civil No. 3:16-cv-222
Judge Trauger
Magistrate Judge Frensley

REPORT AND RECOMMENDATION
Pending before the court is Defendant Amy Montes’s Motion to Dismiss and Motion to
Strike Plaintiff’s Third Amended Complaint (Docket No. 120) and supporting memorandum of
law (Docket No. 121); Defendant Michael Montes’s Motion to Dismiss Third Amended
Complaint (Docket No. 123) and supporting memorandum of law (Docket No. 124); Defendants
and Tollfreezone.com, Inc.’s, Michael Montes and Amy Montes Motion for Summary Judgment
(Docket No. 129) and supporting memorandum (Docket No. 130). While the Plaintiff has not
responded to these dispositive motions, also pending is the Plaintiff’s Motion to Dismiss with
Prejudice all claims against Michael Montes, Amy Montes and Tollfreezone.com, Inc. Docket
No. 134. For the reasons set forth herein, the undersigned recommends that the court grant the
Plaintiff’s Motion to Dismiss Defendants Michael Montes, Amy Montes and Tollfreezone.com,
Inc. with prejudice and deny the Motions to Dismiss and Motion for Summary Judgment as
moot. The undersigned further recommends that the court dismiss the remaining Defendants, Jeff
Brian Zink, Mydataguys.com, LLC, PODmusicgear.com, Inc. and emailmyvmail.com, Inc. for
failure to prosecute.

Plaintiff filed his initial Complaint in this matter on February 16, 2016. Docket No. 1.
That Complaint named Defendants, Michael Montes, Tollfreezone.com, Inc. and Jeff Brian Zink
as Defendants, among others. Id. On August 15, 2016, Plaintiff filed his First Amended
Complaint adding as Defendants, Mydataguys.com, LLC, PODmusicgear.com, Inc. and
emailmyvmail.com, Inc. Docket No. 43.
On October 23, 2017, Plaintiff filed another Amended Complaint striking several
previously dismissed Defendants and adding Amy Louise Montes as a Defendant. Docket No.
113. Defendants Amy Montes, Michael Montes and Tollfreezone.com, Inc. filed the pending
Motions to Dismiss and Motion for Summary Judgement. Docket Nos. 120 and 129. While those
motions were pending, the Plaintiff filed the instant Motion to Dismiss those Defendants with
prejudice. Docket No. 134.
The undersigned recommends that the Plaintiff’s Motion to Dismiss with prejudice as to
Defendants Michael Montes, Amy Montes and Tollfreezone.com, Inc. (Docket No. 134) should
be GRANTED. As a result of the recommendation that the Motion to Dismiss with prejudice be
GRANTED, the undersigned further recommends that the Motions to Dismiss (Docket No. 120,
123) as well as the Motion for Summary Judgment (Docket No. 129) filed by these Defendants
be DENIED as moot.
This matter is set for bench trial on July 17, 2018. Docket No. 109. Defendant Jeff Brian
Zink was named in the original Complaint in this matter filed on February 16, 2016. Docket No.
1. Plaintiff sought entry of default as to Defendant Zink which was denied by the clerk on
October 31, 2016. Docket No. 64. In the denial of the entry of default the clerk found that
Plaintiff had failed to perfect service on Mr. Zink. Id. Despite this finding, it does not appear that
Plaintiff ever effectuated service on Mr. Zink. Defendants Mydataguys.com, LLC,
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PODmusicgear.com, Inc. and emailmyvmail.com, Inc. were named in the Amended Complaint
filed on August 15, 2016. Docket No. 43. It does not appear that Plaintiff has effected service as
to these Defendants either. Plaintiff is not an unsophisticated litigant and is aware of the
necessity of securing service on Defendants. Nonetheless, he has failed to do so in the time
required pursuant to Federal Rules of Civil Procedure 4(m). For these reasons, the undersigned
recommends that the remaining Defendants in this action who have not previously been
dismissed and for whom Plaintiff has not obtained service despite having named them in his
Complaint almost two years ago should be dismissed for failure to prosecute.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

JEFFERY S. FRENSLEY
U. S. Magistrate Judge

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