Mey et al v. Honeywell International, Inc. et al

Filing 118

MEMORANDUM OPINION AND ORDER denying as moot 90 JOINT MOTION for Extension of Time to Complete Discovery; granting 98 MOTION to Amend Complaint; granting plaintiff's 98 MOTION to Modify Scheduling Order; granting in part and denying in par t plaintiff's 113 MOTION to Modify Scheduling Order; Discovery due01/02/2014; Dispositive motions due 02/03/2014; Class certification motions due04/02/2014. Signed by Judge John T. Copenhaver, Jr. on 9/13/2013. (cc: attys; any unrepresented party) (tmr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

DIANA MEY, individually and on
behalf of a class of all persons
and entities similarly situated,
Plaintiff,
Civil Action No. 2:12-1721

v.
HONEYWELL INTERNATIONAL, INC. and
ISI ALARMS NC, INC.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending are (1) the joint motion by plaintiff Diana
Mey and Honeywell International, Inc., (“Honeywell”) to extend
deadlines by 30 Days, filed July 26, 2013, (2) Ms. Mey’s motion
to amend the complaint, filed August 1, 2013, (3) Ms. Mey’s
motion to modify the scheduling order, filed August 1, 2013, and
(4) Ms. Mey’s motion to file under seal exhibit 1 to her reply
in support of her motion for leave to file an amended complaint,
filed August 28, 2013.1

1

The motion to seal aims to shield from public view
portions of a deposition taken July 31, 2013. Pursuant to a

On April 25, 2013, the court entered the parties’
agreed scheduling order setting the following deadlines for case
events:
Discovery
Amendment of pleadings and joinder of parties
Dispositive motions
Class certification motions

08/01/2013
08/01/2013
08/15/2013
11/01/2013

The agreed order additionally provided that, in the event that
Ms. Mey amended the complaint to add an additional named class
representative, she could request a modification of the
schedule.

It also provided a window within which Ms. Mey could

seek call records, namely, for the period from March 7 to May 8,
2012.
In now seeking to amend the complaint, Ms. Mey
proposes adding an additional class representative, Philip
Charvat.

She seeks an extension of the discovery deadline to

protective order entered in this action, Honeywell designated
portions of the deposition as confidential. Ms. Mey asserts
that “it would be impossible to redact the exhibits [sic] in a
meaningful way to protect the proprietary information.” (Memo.
in Supp. at 1). The court has reviewed portions of the
materials submitted for sealing. It appears clear that
redaction may alleviate the concerns expressed. The parties
are, accordingly, ORDERED to meet and confer on or before
October 10, 2013, in an effort to propose suitable redactions to
the materials offered for sealing and present to the court no
later than October 17, 2013, a revised sealing motion, if
necessary, containing a more tailored request consistent with
binding precedent and the Local Rules of Civil Procedure. It is
further ORDERED that the motion to seal be, and hereby is,
denied without prejudice.
2

February 1, 2014, and extension of the remaining deadlines by
six months.

The proposed amended complaint additionally seeks

to add Monitronics, Kevin Klink, and Jayson Waller as additional
defendants.

Other technical amendments are mentioned by Ms. Mey

as well.
Ms. Mey asserts the requested discovery extension to
February 1, 2014, would aid her in (1) scheduling necessary
witness depositions, (2) conducting the discovery necessary
respecting Mr. Charvat’s putative representative claims, and (3)
further investigating the relationship between Monitronics and
current defendant ISI Alarms NC, Inc.
Honeywell responds, inter alia, that Ms. Mey unduly
delayed in moving to amend the complaint.

For example, it

assert that Mr. Charvat is a “professional plaintiff”2 bent on

2

In her reply brief, Ms. Mey offers the following
explanation:
Honeywell calls Mr. Charvat a “professional plaintiff”
six different times in its brief. Referring to Mr.
Charvat repeatedly as a professional plaintiff is
insulting and unprofessional. Mr. Charvat is a
nationally known telemarketing activist who has
successfully prosecuted telemarketing cases in the
Ohio Supreme Court and the Sixth Circuit Court of
Appeals. Mr. Charvat has litigated, and won, many
claims against practitioners of unlawful
telemarketing. Many of Mr. Charvat’s reported
decisions have clarified and advanced telemarketing
law in favor of consumers, to the chagrin of the
3

pursuing telemarketers who has been a client of Ms. Mey’s
lawyers since at least January 2011.

Honeywell points out that

Ms. Mey, in her Rule 26(a)(1) disclosures served September 7,
2012, identified Mr. Charvat as a person having knowledge of
allegedly illegal telemarketing calls made by Honeywell and ISI.
Honeywell further asserts that Ms. Mey was armed months ago with
the factual predicate for her new claims against Monitronics,
Klink and Waller.

It asserts that Ms. Mey has unduly delayed

and engaged in bad faith to Honeywell’s and ISI’s prejudice
without good cause.

telemarketing industry and companies like Honeywell
that benefit from illegal telemarketing. See Dish
Network, LLC, 28 F.C.C.Rcd.6574 (May 9, 2013)
(establishing the operative legal standard for
vicarious liability under the TCPA); Charvat v. GVN
Mich., Inc., 561 F.3d 623 (6th Cir. 2009) (clarifying
damages a consumer may pursue under the TCPA); Charvat
v. Farmers Ins. Columbus, Inc., 178 Ohio App. 3d 118,
(Ohio Ct. App. 2008) (trial court decision reversed
relating to treble damages); Charvat v. Ryan, 116 Ohio
St. 3d 394 (Ohio 2007) (reversing trial court decision
against Mr. Charvat as to the evidentiary basis to
obtain treble damages under the TCPA); finally See
State ex rel. Charvat v. Frye, 114 Ohio St. 3d 76
(Ohio 2007) (Ohio Supreme Court recognizes that
although “. . . Mr. Charvat has filed numerous
lawsuits under the TCPA in recent years, there is no
evidence that any of these cases have been frivolous.
In fact, the evidence establishes that Charvat has
been successful in all but one of nearly 60 lawsuits
filed in the Franklin County Municipal and Common
Pleas Courts”).
(Reply at 9).
4

Ms. Mey replies that (1) the scheduling order
contemplated that another putative class representative could be
joined, (2) Mr. Charvat was not added earlier inasmuch as he had
not authorized counsel to join him, (3) Ms. Mey learned only
recently certain critical details regarding Honeywell’s and
ISI’s close working relationship with Monitronics, which she
discusses in significant detail in her reply, and (4) the
joinder of Klink and Waller, while not originally contemplated,
is now necessary inasmuch as they are the principals of ISI,
which has failed to comply with its discovery obligations and is
no longer in business.3

3

In her reply brief, Ms. Mey includes the following
explanatory excerpt respecting ISI’s status:
[P]laintiff’s counsel was provided with a recording of
a call Kevin Klink made to Jay Connor, a plaintiff in
an unrelated lawsuit against ISI. On the call, Klink
bragged that he was “protected by the
corporation,” and told Connor “You cannot come after
us,” and “This is a waste of time, I’ll never pay.”
Most importantly, he admitted: “I’m just letting you
know it would be more in our best interest just to
shut down and reopen than to pay out a lawsuit like
that.” (Ex. 3, Transcript of Call from Kevin Klink to
Jay Connor). This is exactly what Klink and Waller
have done: They shut down ISI’s operations in 2013,
but continue to use the same equipment and space to
continue telemarketing as “Power Home Technologies.”
(Reply at 8).
5

The court concludes that the requested amendments to
the complaint are permissible under Rule 15(a).

The court

additionally finds good cause supports a modification of the
scheduling order, but not to the extent sought by Ms. Mey.

It

is, accordingly, ORDERED that the schedule be, and hereby is,
modified as follows:
Discovery
Dispositive motions
Class certification motions

01/02/2014
02/03/2014
04/02/2014

Consistent with the foregoing disposition, it is
further ORDERED as follows:
(1)

That the joint motion to extend deadlines by 30 days be,
and hereby is, denied as moot;

(2)

That Ms. Mey’s motion to amend the complaint be, and
hereby is, granted and the proposed first amended
complaint filed today;

(3)

That Ms. Mey’s motion to modify the scheduling order be,
and hereby is, granted to the extent set forth supra and
otherwise denied.

6

The Clerk shall transmit this written opinion and
order to counsel of record and to any unrepresented parties.
DATED: September 13, 2013
John T. Copenhaver, Jr.
United States District Judge

7