Davis v. Protect Controls Inc. Flexible Account Plan et al

Filing 43

MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ERIK DAVIS,
Plaintiff,
v.
PROTECT CONTROLS, INC.
FLEXIBLE ACCOUNT PLAN;
JOSEPH GALAGAZA;
JACKSON LEWIS LLP;
JACKSON LEWIS P.C.; and
PROTECT CONTROLS, INC.,
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§
§

March 07, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 4:17-02677

MEMORANDUM AND ORDER
Plaintiff Erik Davis, who proceeds pro se, brought suit in the 151st Judicial
District Court of Harris County, Texas, alleging violations of the Employee
Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq. (“ERISA”), and
other claims. On September 5, 2017, Defendants removed the suit from the 151st
Judicial District Court of Harris County, Texas. Notice of Removal [Doc. # 1]. The
Court held a pre-trial conference on December 4, 2017. Hearing Minutes and Order
[Doc. # 24]; Transcript [Doc. # 38].
After the conference, as instructed by the Court, Defendants filed their Motion
for More Definite Statement [Doc. # 27]. Plaintiff filed a Response [Doc. # 28],

P:\ORDERS\11-2016\2677ddl.wpd

180307.1002

among other filings.1 On February 23, 2018, Defendants Joseph Galagaza and
Jackson Lewis P.C. filed an “Opposed Motion to Strike Plaintiff’s Filings or, in the
Alternative, to Extend Deadlines, and Request for Status Conference” [Doc. # 40].
Defendants move to strike portions of the Response, in addition to multiple other postconference filings from Plaintiff. The Court addresses Plaintiff’s filings in turn.
Plaintiff’s Response.— Plaintiff’s Response [Doc. # 28] provides answers to
each of Defendants’ multi-part questions.2 Defendants request that the Court strike
pages 1-6 of the Response.
The Court declines to strike specific portions of the Response. Defendants
previously have indicated their intention to file dispositive motions based on res
judicata and other grounds. Portions of Plaintiff’s Response specifically address

1

See “Plaintiff[’]s Motion for Judgment on the Pleadings, Plaintiff[’]s Motion for a
More Definite Statement and Plaintiff[’]s Motion to Strike” [Doc. # 29]; Plaintiff’s
“Motion for Leave for 90 Day Extension for Service of Citation with Plaintiff[’]s First
Amended Petition” [Doc. # 30]; “Plaintiff[’]s Motion for Judgment on the Pleadings,
Plaintiff[’]s Motion for a More Definite Statement and Plaintiff[’]s Motion to Strike”
[Doc. # 31]; a second Response [Doc. # 32] to Defendant’s request for a more definite
statement; Plaintiff’s proposed “Joint Discovery and Case Management Plan” [Doc.
# 33]; Plaintiff’s “Motion for Leave to File Plaintiff’s First Amended Petition” [Doc.
# 34]; Plaintiff’s “Proposed Joint Discovery and Notice of Request for Production of
Documentation” [Doc. # 35]; Plaintiff’s Affidavit [Doc. # 36].

2

Plaintiff also filed a second Response [Doc. # 32] that appears to be identical to the
Response. Plaintiff has not notified the Court of any difference between the
documents or a basis for a supplemental filing. This filing is stricken from the
Court’s record as duplicative.

P:\ORDERS\11-2016\2677ddl.wpd

180307.1002

2

matters responsive to Defendants’ questions. As stated at the conference, Plaintiff’s
responses are deemed part of the pleadings for purposes of dispositive motions.
Transcript [Doc. # 38], at 40.
The Court previously stated that dispositive motions would be permitted within
thirty days of Plaintiff’s last response. Id. at 45. Given the multiple filings by
Plaintiff in the last thirty days, as well as the time that elapsed while the Court
entertained Defendants’ current motion, the Court now orders that Defendants’
dispositive motions may be filed on or before April 6, 2018.
Plaintiff’s Motion for Judgment.— Plaintiff has filed “Plaintiff[’]s Motion
for Judgment on the Pleadings, Plaintiff[’]s Motion for a More Definite Statement and
Plaintiff[’]s Motion to Strike” [Doc. # 29].3
Rule 12(c) provides, “After the pleadings are closed—but early enough not to
delay trial—a party may move for judgment on the pleadings.” FED. R. CIV. P. 12(c).
The legal standards governing a motion under Rule 12(c) are the same as those
governing a motion under Rule 12(b)(6). Chauvin v. State Farm Fire & Cas. Co., 495
F.3d 232, 237 (5th Cir. 2007). “A motion brought pursuant to [Rule] 12(c) is
designed to dispose of cases where the material facts are not in dispute and a judgment
on the merits can be rendered by looking to the substance of the pleadings and any
3

Four days later, Plaintiff filed a second motion [Doc. # 31] that appears to be
identical; this filing is stricken from the Court’s record as duplicative.

P:\ORDERS\11-2016\2677ddl.wpd

180307.1002

3

judicially noticed facts.” Great Plains Trust Co. v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 312 (5th Cir. 2002) (internal citation and quotation marks omitted).
Because Plaintiff’s Motion does not address Rule 12(c) and fails to make a showing
that no material facts are in dispute, the motion for judgment on the pleadings is
denied.
Plaintiff’s Motion also seeks a more definite statement from Defendants. This
request is denied without prejudice. If warranted at a later stage of the proceedings,
the Court will revisit the issue on its own initiative.
Finally, Plaintiff’s Motion requests the Court to strike numerous filings on the
docket, including the Notice of Removal [Doc. # 1] and the order for an initial pretrial
conference [Doc. # 2]. Because Plaintiff has not demonstrated under Federal Rule of
Civil Procedure 12(f) that these filings are redundant, immaterial, impertinent, or
scandalous, his request is denied.
Additional Service of Process.— Plaintiff filed a “Motion for Leave for 90
Day Extension for Service of Citation with Plaintiff[’]s First Amended Petition” [Doc.
# 30], seeking a ninety day extension for service of process. He further requests
permission to serve Jackson Lewis LLP, Jackson Lewis, P.C., John Sekamude,
Protect Controls, Inc., and “Protect Controls, Inc. Flexible Spending Account Plan”
by service on the Texas Secretary of State or by the United States Marshal.
P:\ORDERS\11-2016\2677ddl.wpd

180307.1002

4

Protect Controls, Inc. has appeared in this lawsuit. Jackson Lewis LLP is the
former name of Jackson Lewis, P.C., and counsel for Jackson Lewis, P.C., has
appeared for both entities. No additional service of process on these parties is
necessary.
As Plaintiff states in his motion, he has been informed by Defendants’ counsel
that “Protect Controls, Inc. Flexible Spending Account Plan” is not an individual or
entity that may be sued. Plaintiff has presented no evidence to the contrary and has
made no showing that service on “Protect Controls, Inc. Flexible Spending Account
Plan” is possible or necessary.
Regarding John Sekamude, Plaintiff’s prior attorney, the parties informed the
Court at the conference that Sekamude has left the United States and that Plaintiff
obtained a default judgment against Sekamude for approximately $1,500,000.
Plaintiff apparently sued Sekamude for malpractice after Sekamude kept settlement
funds intended for Plaintiff, and Sekamude did not appear to defend against the
malpractice suit. Plaintiff’s amended pleadings state that Sekumade “owes Plaintiff
over 2 million dollars for his overt acts or overt act in reference to the conspiracy for
which all the defendants should be held liable.” See Doc. # 18, at 5.
The Court has no documentation of a default judgment against Sekamude and,
on this record, the basis for this Court’s jurisdiction over an attempt to collect any

P:\ORDERS\11-2016\2677ddl.wpd

180307.1002

5

such judgment is not apparent. Moreover, Plaintiff has not provided an address for
Sekumade. The Court therefore declines to order service by the United States
Marshal. To the extent Plaintiff seeks the Court’s assistance in making service on the
Texas Secretary of State, Plaintiff provides no authority for such action by the Court
and the request is denied.
Plaintiff’s Motion for Leave to Amend.— Plaintiff has filed a “Motion for
Leave to File Plaintiff’s First Amended Petition” [Doc. # 34] relying on Federal Rule
of Civil Procedure 15.
Rule 15(a) provides that a court “should freely give leave [to amend] when
justice so requires.” FED. R. CIV. P. 15(a)(2). See Stem v. Gomez, 813 F.3d 205, 215
(5th Cir. 2016). A court must have a “substantial reason” to deny a request for leave
to amend. Stem, 813 F.3d at 215. Leave to amend is not automatic, and the decision
to grant or deny leave to amend “is entrusted to the sound discretion of the district
court.” Pervasive Software Inc. v. Lexware GmbH & Co., 688 F.3d 214, 232 (5th Cir.
2012) (internal citation and quotation marks omitted). A district court “should
consider factors such as ‘undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party, and futility of amendment.’” In re Am. Intern.
Refinery, Inc., 676 F.3d 455, 466-67 (5th Cir. 2012) (quoting In re Southmark, 88

P:\ORDERS\11-2016\2677ddl.wpd

180307.1002

6

F.3d 311, 315 (5th Cir. 1996)).
The Court previously granted Plaintiff leave to amend his pleadings, see
Hearing Minutes and Order [Doc. # 24], and explained at the time that no further
amendments would be permitted. Transcript, at 38. Plaintiff’s current motion does
not explain which claims he seeks to add or amend, but merely states, “Plaintiff
requests leave to file his amended petition in good faith so that this case is judged on
the merits and to hold wrongdoers liable.” Motion [Doc. # 34], at 5. Plaintiff does
not explain how his proposed amended pleadings would further his stated goal. The
Court carefully has examined his filings and the proposed amendment and, in its
discretion, finds that granting leave to file the proposed amendment would not further
the interests of justice in this case. Plaintiff’s motion for leave to amend is denied.
Plaintiff’s Discovery Filings.— Plaintiff has filed an additional proposed
“Joint Discovery and Case Management Plan” [Doc. # 33]. Plaintiff previously filed
a Plan [Doc. # 23] on November 29, 2017. See also Defendants’ Plan [Doc. # 21].
Because Plaintiff did not seek leave to file the additional Plan and does not explain
why an amended plan is necessary, this document is stricken from the Court’s docket
as duplicative.
Plaintiff also filed a “Proposed Joint Discovery and Notice of Request for
Production of Documentation” [Doc. # 35].
P:\ORDERS\11-2016\2677ddl.wpd

180307.1002

7

Because the Court stated at the

conference on December 4, 2017, that no discovery is permitted at this stage of the
litigation, see Transcript [Doc. # 38], at 45-46, this document is stricken from the
Court’s record.
CONCLUSION AND ORDER
For all of the foregoing reasons, it is hereby
ORDERED that Defendants’ “Opposed Motion to Strike Plaintiff’s Filings or,
in the Alternative, to Extend Deadlines, and Request for Status Conference” [Doc.
# 40] is GRANTED in part and DENIED in part as stated herein. It is further
ORDERED that “Plaintiff[’]s Motion for Judgment on the Pleadings,
Plaintiff[’]s Motion for a More Definite Statement and Plaintiff[’]s Motion to Strike”
[Doc. # 29] is DENIED. It is further
ORDERED that Plaintiff’s “Motion for Leave for 90 Day Extension for
Service of Citation with Plaintiff[’]s First Amended Petition” [Doc. # 30] is DENIED.
It is further
ORDERED that Docket Entries No. 31 and 32 are duplicative and are
STRICKEN from the Court’s record. It is further
ORDERED that Plaintiff’s “Motion for Leave to File Plaintiff’s First Amended
Petition” [Doc. # 34] is DENIED. It is further
ORDERED that Plaintiff’s proposed “Joint Discovery and Case Management
P:\ORDERS\11-2016\2677ddl.wpd

180307.1002

8

Plan” [Doc. # 33] and Plaintiff’s “Proposed Joint Discovery and Notice of Request for
Production of Documentation” [Doc. # 35] are STRICKEN from the Court’s record.
It is finally
ORDERED that Defendants must file their dispositive motion(s) on or before
April 6, 2018.
SIGNED at Houston, Texas, this 7th day of March, 2018.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

P:\ORDERS\11-2016\2677ddl.wpd

180307.1002

9