Keculah v. ASI Lloyds et al
Filing
48
MEMORANDUM OPINION AND FINAL JUDGMENT. this matter is DISMISSED WITH PREJUDICE. The Court Further ORDERS that Plaintiff Henry Keculah's claims against Defendant ASI LloydS are DISMISSED. The Court further ORDERS that Keculah pay $127,026.88 IN attorney fees and costs to Defendant ASI Lloyds. The Court further ORDERS that Keculah MUST abide by all provisions of this order including the provisions pertaining to claim preclusion. Keculah is WARNED that failure to abide by the provisions of this order could result in him being cited for contempt or additional sanctions. THIS IS A FINAL JUDGMENT. Case terminated on 02/05/2024. (Signed by Judge David Hittner) Parties notified.(JosephWells, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HENRY KECULAH,
Plaintiff,
v.
ASI LLOYDS,
Defendant.
February 05, 2024
Nathan Ochsner, Clerk
§
§
§
§
§
Case No. 4:23-cv-03499
§
§
§
§
§
MEMORANDUM OPINION AND
FINAL JUDGMENT
On January 30, 2024, the Court held a hearing pursuant to an Order for
Plaintiff Henry Keculah ("Keculah") to appear and Show cause why this case should
not be dismissed. [Order, Doc. 34]. Counsel for Defendant ASI Lloyds ("ASI"),
LaDonna Schexnyder and Carin Marcussen, were also ordered to appear.
Ms. Schexnyder and Ms. Marcussen appeared along with Viki Miles, a
representative of ASL Keculah did not appear. Based upon the record and the
affidavits of Viki Miles and LaDonna Schexnyder submitted into evidence by ASI
at the show cause hearing, the Court makes the following findings and issues the
following order:
BACKGROUND
This lawsuit arises from a denial of a claim for insurance benefits submitted
by Keculah to ASI under Policy No. TXL 1078902 for a water loss that allegedly
occurred at the insured property located at 4703 Parma River Lane, Katy, Texas
77449 (the "Property") on or about March 26, 2023. [Plaintiff's Original Petition,
Doc. 1-3 at
,r,r 2,
13]. He alleges that, after he submitted the claim on March 28,
2023 , ASI sent out a water remediation company, D.P.S Contracting, Inc. ("DPS")
to mitigate the water damage to the Property. [Id. at ,r,r 16, 20]. Keculah signed an
"Authorization to Proceed with work and direction to Pay Contract" allowing DPS
to commence mitigation work at the Property. [Id. at ,I 24]. An adjuster for ASI
inspected the Property on April 3, 2023. [Id. at ,I 30]. ASI took a recorded statement
of Plaintiff during the course of its investigation, [id. at ,I 66], and later requested an
examination under oath ("EUO") of Plaintiff pursuant to the terms of the Policy. [Id.
at ,I 48]. Thereafter, ASI denied the claim . [Id. at ,r,r 59, 88. See also Exhibit B COR
Declination, Doc. 4-2]. Plaintiff filed suit against ASI in state court alleging ASI did
not conduct a reasonable investigation, unreasonably delayed and wrongfully denied
his claim for benefits under the Policy. [Doc. 1-3 at
,r,r
13-48]]. Plaintiff asserted
causes of action for (1) Tortious Interference with Existing Contract; (2) Tortious
Interference with Prospective Contracts; (3) Stalking; (4) Breach of Contract; (5)
Breach of the Duty of Good Faith and Fair Dealing; (6) Violation of the Deceptive
2
Trade Practices Act, Texas Business & Commercial Code § 17.41 et seq.; (7)
Violations of Texas Prompt Payment of Claims Act, Texas Insurance Code Chapter
542; (8) Unfair Settlement Practices in violation of Texas Insurance Code Chapter
541; (9) Fraud; and (10) Conspiracy. [Id. at
,r,r
49-82, 88-142]. This case 1 was
subsequently removed to federal court. [Notice of Removal, Doc. l].
DISCUSSION
A.
Keculah's Conduct Prior to the Show Cause Order
On September 19, 2023, the Court entered the Order for Conference and
Disclosure ofInterested Parties, [Doc. 3], which stated that "[a] person litigating pro
se is bound by the requirements imposed upon counsel in this Order." In accordance
1
Pursuant to Fed. R. Evid. 201 , the Court takes judicial notice of other lawsuits filed
by Keculah arising from the same water loss:
• Henry Keculah v. Catherine Sweetie Hayes , Cause No. 235200220673 in the Justice
of the Peace Court, Precinct 5, Place 2 of Harris County, Texas. Keculah filed suit
against Hayes, the mother of his child and a former resident of the insured property,
on June 13 , 2023 , alleging she caused damage to his personal property and the
insured property on March 26, 2023 ;
• Henry Keculah v. Catherine Sweetie Hayes , Cause No. 2023-38708 in the 333 rd
Judicial District of Harris County, Texas. Keculah filed suit against Hayes, the
mother of his child and a former resident of the insured property, on June 23 , 2023 ,
alleging she made defamatory statements about him and caused damaged to the
insured property on March 26, 2023;
• Henry Keculah v. DPS Contracting Inc. et al, Cause No. 2023-41519 in the 269 th
Judicial District of Harris County, Texas. Keculah filed suit against DPS, who
performed water mitigation work at the insured property after the water loss, on July
6, 2023 , alleging they did not perform the work properly. DPS countersued,
asserting its compulsory counterclaim for payment for the work it performed
pursuant to the contract signed by Keculah.
3
with Rules 16 and 26 of the Federal Rule of Civil Procedure, the Court set the matter
for an initial pretrial and scheduling conference on December 14, 2023 and ordered
the parties to confer as required by Rule 26(f) and submit a joint discovery/case
management plan ("JD/CMP") to the Court 10 days before the initial conference.
[Id.] The Order warned that "[f]ailure to comply with this Order may result in
sanctions, including dismissal of the action and assessment offees and costs" [Id.
(emphasis added)]
On November 20, 2023, counsel for ASI attempted to conduct the scheduled
initial conference with Keculah but he refused to discuss the topics required by Rule
16(c)(2) and Rule 26(f) or participate in preparation of the JD/CMP. [Defendant AS!
Lloyds' Advisory to the Court Regarding Attempted Rule 26 Conference and
Preparation of Joint Discovery/Case Management Plan, Doc. 23].
On December 1, 2023, ASI moved for an order of protection because although he was well aware of the fact ASI was represented by counsel - Keculah
continued communicating directly with ASI about the claim at issue and this lawsuit.
[Defendant AS! Lloyds Opposed Motion for Order Prohibiting Plaintiff from
Contacting Defendant and Its Employees, Agents and Contractors Regarding this
Claim, Doc. 21].
On December 4, 2023, ASI advised the Court of its counsel's attempt to
conduct the initial conference and inability to provide a Joint Discovery/Case
4
Management Plan as required by the Federal Rules and the September 19, 2023
Order [Doc. 3]. [Doc. 23] . Keculah filed no response to ASI's Advisory in this case.
On December 5, 2023, based on the representations made by ASI and the
emails that Keculah copied to court staff, the Court found that a protective order was
appropriate and ordered that Keculah "shall not communicate directly with [AS!]
regarding any matter related to the federal lawsuit", that Keculah "shall direct all
communications regarding any matter related to the federal lawsuit to LaDonna
Schexnyder or Carin Marcussen" , and that all communications be "professional and
appropriate in both tone and content" . [Order, Doc. 24 (emphasis added)].
On December 14, 2023, Keculah and counsel for ASI appeared for the Initial
Conference where Keculah claimed he had an attorney, but the attorney backed out
at the last second 2 ; Keculah was unprepared to proceed and requested a continuance.
[Transcript of Proceedings Held December 14, 2023, Doc. 31]. The Magistrate
Judge granted Keculah's request and re-set the Initial Conference to January 12,
2024.
On December 28, 2023, noting that Keculah had not responded to the Motion
for Protection, the Court found the need for protection remained and stated that "the
Courts December 5, 2023 order remains in effect". [Order, Doc. 29 (emphasis
added)].
2
No attorney has ever appeared for Keculah in this matter.
5
On January 3, 2024, counsel for ASI attempted, again, to conduct a conference
with Keculah as required by the Federal Rules and the Court's September 19, 2023
Order, [Doc. 3], but Keculah would not provide a clear statement about whether he
was, currently, represented by counsel and refused to turn on his camera for the
Zoom call or identify the persons he had listening in with him. [Supplement to
Defendant ASI Lloyds ' Advisory to the Court Regarding Attempted Rule 26
Conference and Preparation of Joint Discovery/Case Management Plan, Doc. 32;
Video, Doc. 38]. Keculah claimed, falsely, that one of ASI's attorneys of record,
Carin Marcussen, was a party to this case. [Doc. 38]. Because Keculah would not
participate in the conference in good faith, ASI's counsel ended the call. [Id.].
Keculah filed no response to ASI's Supplemental Advisory in this case.
Following the second attempted initial conference, Keculah began violating
the Court's December 5, 2023 Order, [Doc. 24] by communicating directly with ASI
and persons at defense counsel's firm - other than ASI's counsel of record - to
disparage defense counsel in an effort to have them removed from the defense of the
case. [Defendants Motion for Contempt Against Plaintifffor Violation ofthe Courts
December 5, 2023 Order and Request for Relief, Doc. 33; Affidavit of Viki Miles,
Doc. 45; Affidavit of LaDonna Schexnyder, Doc. 46]. Keculah sent one fax directly
to ASL [Doc. 45 at Exhibit 1]. Keculah sent 56 emails to persons other than Ms.
Schexnyder and Ms. Marcussen relating to this case. [Doc. 46 at Exhibits 1-14].
6
On January 9, 2024, ASI advised the Court of its counsel's second failed
attempt at an initial conference and moved the Court for "an order requiring Keculah
to show cause why the case should not be dismissed for failure to comply with the
Order [Doc. 3] and the Rules of Civil Procedure". [Supplement to Defendant AS/
Lloyds' Advisory to the Court Regarding Attempted Rule 26 Conference and
Preparation of Joint Discovery/Case Management Plan, Doc. 32].
On January 10, 2024, Keculah then began making threats to sue defense
counsel's law firm and attorneys who have had no involvement in the case if Ms.
Schexnyder and Ms. Marcussen were not removed from this case. [See, e.g. Doc.
33-13, 15, 16, 17]. Due to Keculah's repeated violation of the Order, [Doc. 24], ASI
moved the Court for an order requiring Keculah to personally appear before the
Court and "show cause why sanctions up to and including dismissal of the action
should not be imposed". Keculah was ordered to appear. [Doc. 33].
C.
The Show Cause Order
On January 11, 2024, the Court ordered a "SHOW CAUSE hearing as to why
Plaintiff Henry Keculah should not be held in CONTEMPT AND WHY THE
CASE SHOULD NOT BE DISMISSED set for Tuesday, January 30, 2024 at
2:00 pm at Courtroom 8A, United States District Court, 515 Rusk Street, Houston,
Texas 77002". [Doc. 34]. The Court "WARNS Plaintiff Henry Keculah that the
7
Court's protective order remains in effect, and he is to conduct himselfin accordance
with its provisions." [Id.]
B.
Keculah's Conduct After the Show Cause Order Was Entered
On January 12, 2024, Keculah and counsel for ASI appeared for the re-set
Initial Conference. [Transcript, Doc. 41]. Keculah was, once again, unprepared and,
once again, requested a continuance. [Id.]. The Magistrate Judge did not grant
Keculah's request for a continuance a second time but, instead, entered the Rule 16
Scheduling Order, [Doc. 36].
On January 17, 2024, ASI notified the Court that Keculah was continuing to
violate the December 5, 2023 Order, [Dec. 24]. After the Court entered the Show
Cause Order and prior to his attempted dismissal of the case, Keculah sent 70 emails
directly to ASI about this case, [Doc. 45 at Exhibits 2-71 ], and 75 emails to persons
at defense counsel's firm besides Ms. Schexnyder and Ms. Marcussen, [Doc. 46 at
Exhibits 15-51] .
On January 26, 2024, Keculah attempted to dismiss this case. [Notice of
Nonsuit Without Prejudice, Doc. 42].
On January 27, 2024, after counsel for ASI told Keculah that his "nonsuit"
was ineffective in federal court and they intended to proceed with the Show Cause
Hearing on January 30, 2024, as ordered by the Court, Keculah emailed ASI directly
8
42 times, [Doc. 45 at Exhibits 72-113] , and persons at defense counsel's firm other
than Ms. Schexnyder and Ms. Marcussen 42 times, [Doc. 46 at Exhibits 52-59].
On January 30, 2024, Keculah did not appear for the show cause hearing.
[Minute Entry, Doc. 44] .
C.
Standards Governing Dismissal and Awarding Fees and Costs
1.
Pursuant to Fed. R. Civ. P. 16
Rule l 6(f) allows a court to impose sanctions, including dismissal, if a party
or its attorney is substantially unprepared to participate-or does not participate in
good faith-in the final pretrial conference or fails to obey a scheduling order or
other pretrial order. Fed. R. Civ. P. 16(f)(l) (B) and (C). Involuntary dismissal under
Rule 16(f) is proper when ( 1) there is a clear record of delay or contumacious
conduct by the plaintiff and (2) either the district court has expressly determined that
a lesser sanction was not available or would be futile, or the record indicates that the
district court first employed lesser sanctions that proved to be futile. Rax Garbage
Disposal Serv., Inc. v. McNeilus Truck & Mfg. Co., 109 F.3d 767 (5th Cir. 1997)
(citing Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992)). "Instead
of or in addition to any other sanctions, the court must order the party ... to pay the
reasonable expenses- including attorney's fees-incurred
noncompliance with this rule." Fed. R. Civ. P. 16(f)(2).
9
because of any
2.
Pursuant to Fed. R. Civ. P. 37
Fed. R. Civ. P. 37(b) gives the Court broad power to impose sanctions for
failures to obey discovery orders. Bluitt v. Arco Chem. Co., a Div. of At!. Richfield
Co., 777 F.2d 188, 191 (5th Cir. 1985). "It is firmly established that a district court
is authorized under Fed. R. Civ. P. 37(b)(2)(C) to dismiss a complaint with prejudice
when a party refuses to obey a valid discovery order." Batson v. Neal Speice
Associates, Inc. , 765 F.2d 511, 514 (5th Cir. 1985) (citing Nat'! Hockey League v.
Metro. Hockey Club, Inc., 427 U.S. 639,640, 96 S. Ct. 2778, 2779, 49 L. Ed. 2d 747
(1976); Jones v. Louisiana State Bar Ass'n, 602 F.2d 94, 96 (5th Cir. 1979) (per
curiam)). Rule 37 dismissal is "available to the district court in appropriate cases,
not merely to penalize those whose conduct may be deemed to warrant such a
sanction, but to deter those who might be tempted to such conduct in the absence of
such a deterrent." National Hockey League, 427 U.S. at 643. When considering
whether to dismiss a case pursuant to Rule 37(b )(2)(C), the Court considers whether:
( 1) the "failure to comply with [a] court's order results from bad faith, and not from
the inability to comply," (2) "the deterrent value of Rule 37 cannot be substantially
achieved by the use of less drastic sanctions", (3) "the other party's preparation for
trial was substantially prejudiced," and (4) the "neglect is plainly attributable to an
attorney rather that a blameless client, or when a party's simple negligence is
grounded in confusion or sincere misunderstanding of the court's order." Bluitt, 777
F .2d at 190-191 . "If a party... fails to participate in good faith in developing and
submitting a proposed discovery plan as required by Rule 26(f), the court may, after
giving an opportunity to be heard, require that party ... to pay to any other party the
reasonable expenses, including attorney's fees, caused by the failure." Fed. R. Civ.
P. 37(f).
3.
Pursuant to Fed. R. Civ. P. 41(b)
Rule 4 l(b) of the Federal Rule of Civil Procedure provides that "[i]f the
plaintiff fails to prosecute or to comply with these rules or a court order, a defendant
may move to dismiss the action or any claim against it." Dismissal with prejudice
for failure to comply with a court order should be a last resort, and "[l]esser sanctions
such as fines or dismissal without prejudice are usually appropriate." Bryson v.
United States, 553 F.3d 402, 403 (5th Cir. 2008). Dismissal with prejudice under
Rule 41 (b) is appropriate only "where there is a 'clear record of delay or
contumacious conduct by the plaintiff ... and when lesser sanctions would not serve
the best interests of justice.' " Id. (quoting Callip v. Harris Cnty. Child Welfare
Dep't, 757 F.2d 1513, 1521 (5th Cir. 1985)). Typically, one of three aggravating
factors must be present: "( 1) delay caused by the plaintiff [herself] and not [her]
attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional
conduct." Campbell v. Wilkinson, 988 F.3d 798, 802 (5th Cir. 2021) (quoting Berry
v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992)).
11
4.
Pursuant to the Court's Inherent Authority
In 1991 , the United States Supreme Court held:
It has long been understood that certain implied powers must
necessarily result to our Courts of justice from the nature of their
institution, powers which cannot be dispensed with in a Court, because
they are necessary to the exercise of all others. For this reason, Courts
of justice are universally acknowledged to be vested, by their very
creation, with power to impose silence, respect, and decorum, in their
presence, and submission to their lawful mandates. These powers are
governed not by rule or statute but by the control necessarily vested in
courts to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.
***
In addition, it is firmly established that the power to punish for
contempt is inherent in all courts. This power reaches both conduct
before the court and that beyond the court' s confines, for the underlying
concern that gave rise to the contempt power was not merely the
disruption of court proceedings. Rather, it was disobedience to the
orders of the Judiciary, regardless of whether such disobedience
interfered with the conduct of trial.
Chambers v. NASCO, Inc., 501 U.S. 32, 43-44, 111 S. Ct. 2123, 115 L. Ed. 2d 27
( 1991) (internal quotations and citations omitted).
The Fifth Circuit has stated:
The federal courts are vested with the inherent power to manage their
own affairs so as to achieve the orderly and expeditious disposition of
cases. This power is necessarily incident to the judicial power granted
under Article III of the Constitution. This includes the power of the
court to control its docket by dismissing a case as a sanction for a party's
failure to obey court orders. However, when these inherent powers are
invoked, they must be exercised with restraint and discretion.
Dismissing a case with prejudice is a harsh sanction, but we will uphold
an involuntary dismissal unless the district court has abused its
12
discretion. This Court has held that such sanctions should be confined
to instances of bad faith or willful abuse of the judicial process.
Woodson v. Surgitek, Inc., 57 F.3d 1406, 1417 (5th Cir. 1995) (footnotes and internal
quotations omitted). In addition to the inherent power to dismiss a lawsuit outright,
the Court also has the power to award attorney's fees as a sanction for the "willful
disobedience of a court order". Id. at 45. The Court's discretion "permits the court
to impose as part of the fine attorney ' s fees representing the entire cost of the
litigation". Id. Fees may be assessed when a party "acted in bad faith, vexatiously,
wantonly, or for oppressive reasons". Id.
CONCLUSION
The Court finds that sanctions should be imposed against Keculah who has
repeatedly and intentionally violated the orders of this Court and attempted by such
defiance of the Court's orders and other "tactics of delay, oppression, harassment,
and massive expense" to reduce ASI to "exhausted compliance" with his demands.
Chambers v. NASCO, Inc., 501 U.S. 32, 41 (1991). The most severe sanctions of
dismissal with prejudice and award of attorney fees and costs are necessary for the
vindication of the authority of the Court.
Pursuant to Rule 16(f) of the Federal Rules of Civil Procedure, the Court finds
that Keculah was substantially unprepared and did not participate in good faith in
the initial conferences required by Rules 16 and 26 and the Court's September 19,
2023 Order, [Doc. 3].
13
Pursuant to Rules 16(f), 37(b)(2), and 26(f) of the Federal Rules of Civil
Procedure, the Court finds that Keculah non-compliance with Rules 16 and 26 and
the Court' s September 19, 2023 Order, [Doc. 3] , was willful and contumacious.
The Court finds that Keculah violated the December 5, 2023 Order, [Doc. 24]
by contacting ASI directly 113 times and that 112 of those violations occurred after
the Court entered the Show Cause Order, warning Keculah that the December 5,
2023 Order, [Doc. 24] was still in effect and he was to "conduct himself in
accordance with its provisions." [Doc. 34].
Keculah was warned that failure to comply with the Court's Order, could
result in dismissal and/or an award of fees and cost. [Doc. 3].
The Court finds that Keculah violated the December 5, 2023 Order, [Doc. 34],
by contacting persons at defense counsel's law firm other than ASI' s counsel of
record, LaDonna Schexnyder and Carin Marcussen, regarding this case 169 times,
and that 114 of those violations occurred after the Court entered the Show Cause
Order, warning Keculah that the December 5, 2023 Order, [Doc. 24] was still in
effect and he was to "conduct himself in accordance with its provisions." [Doc. 34].
The Court finds Keculah violated the December 5, 2023 Order, [Doc. 24] by
failing to keep his communications "professional and appropriate in both tone and
content" innumerable times. In his communications, Keculah accused defense
counsel of making "offensive comments" to him, being racist, discriminating against
14
him simply because defense did not do to whatever Keculah wanted. He also made
baseless accusations of ethical violations against counsel and made a bar complaint
against Ms. Marcussen in an effort to gain some leverage in this lawsuit. Such
communications were far from the "professional and appropriate" communications
the Court' s Order, [Doc. 24] required.3 " [W]hen a litigant disregards repeated rulings
of the Court and spews venomous accusations concerning all who cross his path,"
as Keculah has done, "the Court is obligated to end this unyielding obdurate assault
on the judicial process." Vasile v. Dean Witter Reynolds Inc., 20 F. Supp. 2d 465,
504 (E.D.N.Y. 1998), affd, 205 F.3d 1327 (2d Cir. 2000) (emphasis added) .
The Court finds that Keculah violated the Court's orders intentionally,
willfully, flagrantly and in bad faith.
The Court finds that that no lesser sanction than dismissal would be adequate
to protect the integrity of the court or the rights of ASI. See In re Liquid Carbonic
Truck Drivers Chem. Poisoning Litig. MD.L. Docket No. 252, 580 F.2d 819, 823
(5th Cir. 1978). Indeed, warning Keculah of the Court's Order and the possible
consequences of violation incited him to commit even more violations of the Court' s
Order.
3
Keculah is, apparently, an aspiring lawyer. Doc. 33-15. However, the behavior
displayed in this litigation is completely improper for any litigant but especially for
someone who hopes to become a member of the bar someday.
15
The Court finds that sanctions should be imposed upon Keculah, including
dismissal of this lawsuit with prejudice and sanctions in the amount equal to entire
cost of the litigation, $127.026.88, should be awarded against Keculah. 4
"A district court has jurisdiction to impose a pre-filing injunction to deter
vexatious, abusive, and harassing litigation." Baum v. Blue Moon Ventures, LLC,
513 F .3d 181, 187 ( 5th Cir. 2008). In determining whether it should impose a prefiling sanction, the Court considers: (1) the party's history of litigation, particular,
harassing or duplicative lawsuits; (2) whether the party had a good faith basis for
pursuing the litigation or simply intended to harass, (3) the extent of the burden on
the courts and other parties resulting from the party's filings, and (4) the adequacy
of alternative sanctions. Id. at 189. With regard to the first factor, the Court takes
judicial notice ofKeculah numerous other cases arises from the same water loss 5 and
the voluminous state court record in them, including a pending Motion to Declare
Plaintiff Henry Keculah a Vexatious Litigant, filed 1/24/24 in Cause No. 202341519, Keculah v. D.P.S. Contracting, Inc. in the 269th Judicial District of Harris
County. With regard to the second factor, the Court finds the extraordinary number
4
At the hearing, ASI Lloyd's counsel submitted into evidence an affidavit and
biographical summaries of the billing conducted in this case. The documents were
considered by the Court under seal due to the ongoing state litigation and the history of
behavior in this case. The Court find the filings to be adequate and the billed amounts
reasonable in light of the occurrences in this matter. See Defendant AS! Lloyds Attorney
Fees and Costs, Document No. 47 at 1-59 (filed under seal).
5
Supra note 1.
16
of communications sent by Keculah in violation of the Court's December 5, 2023
Order, [Doc. 24], to ASI and members of defense counsel's firm demonstrates his
intent to harass. With regard to the third factor, Keculah has not made a large volume
of filings in the federal court but the Court does believe an explanation of the effect
of this Memorandum and Order and a WARNING to Keculah about future filings
is warranted. See Vasile, 20 F. Supp. 2d at 506-507; Crear v. JPMorgan Chase
Bank, NA ., 491 F. Supp. 3d 207,219 (N.D. Tex. 2020).
Claim preclusion or res judicata bars the relitigation of claims that have been
litigated or should have been litigated in an earlier suit. Crear, 401 F .Supp.3d at 213.
A claim is precluded when (1) the parties are identical or in privity; (2) the judgment
in the prior action was rendered by a court of competent jurisdiction, (3) the prior
action was concluded by a final judgment on the merits, and (4) the same claim or
cause of action was involved in both actions. Id. In the Fifth Circuit, this means the
preclusive effect of the prior judgment extends to all rights of the Plaintiff with
respect to all or part of the transaction or series of connected transactions, out of
which the original transaction arose."
The entry of a dismissal with prejudice results in Keculah not being permitted
to sue ASI Lloyds again for anything arising from the water loss at the Property on
March 26, 2023. This preclusion also applies to any person in privity with ASI
Lloyds, including its attorney-in-fact, ASI Lloyds, Inc., and its employees or agents
17
whether mentioned by name in Plaintiff's Original Petition - Jakquese Mingo,
Jordan Gerron, Amir Ghasemi, Estephany Oliveros, and Carin Marcussen - or not.
Plaintiff is WARNED that additional sanctions, including a comprehensive prefiling injunction prohibiting Keculah from initiating any new lawsuits in the
Southern District of Texas, may be imposed if he persists in filing duplicative and
vexatious lawsuits. Accordingly, the Court herbys
ORDERS this matter be DISMISSED WITH PREJUDICE. The Court
Further
ORDERS that PlaintiffHenry Keculah's claims against Defendant ASI Lloyd
are DISMISSED. The Court further
ORDERS that Keculah pay $127,026.88 m attorney fees and costs to
Defendant ASI Lloyds. The Court further
ORDERS that Keculah MUST abide by all provisions of this order including
the provisions pertaining to claim preclusion. Keculah is WARNED that failure to
abide by the provisions of this order could result in him being cited for contempt or
additional sanctions.
THIS IS A FINAL JUDGMENT
SIGNED at Houston, Texas, on this _S_ day of February, 2024.
9D~{~
DAVID HITTNER
United States District Judge
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?