Lucas v. DeSilva Automotive Services, LLC et al, No. 1:2016cv00790 - Document 66 (S.D. Ohio 2017)

Court Description: MEMORANDUM OPINION AND ORDER - IT IS ORDERED: (1) Plaintiff's motions for an additional extension of time to complete service upon Defendant Jeffrey Torres, and to conduct discovery on a related corporation to discover the residential address o r Mr. Torres and/or a location where he can be served, 35 63 are GRANTED up to and including 5/15/2017; (2) Defendants' motion for leave to permit Attorney Joshua L Spoont to appear pro hac vice 61 is GRANTED; (3) The Filippo Defendants� 39; unopposed motion for an extension of time to file a reply memorandum 64 is DENIED AS MOOT in light of the Report and Recommendation filed today; (4) Based upon the R&R that recommends setting aside the Entry of Default against them, the Filippo Defendants shall appear and file their Answer and Affirmative Defenses 50 on or before 3/31/2017. Absent rejection of the pending R&R, the Answer of the Filippo Defendants shall be considered as if timely filed. Signed by Magistrate Judge Stephanie K. Bowman on 3/20/2017. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Lucas v. DeSilva Automotive Services, LLC et al Doc. 66 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION VINCENT LUCAS, Case No. 1:16-cv-790 Plaintiff, Barrett, J. Bowman, M.J. v. DESILVA AUTOMOTIVE SERVICES, et al., Defendants. MEMORANDUM OPINION AND ORDER I. Background Currently pending in this case are three motions that have been addressed by separate Report and Recommendation filed this same day, and four non-dispositive motions addressed by this Order. Plaintiff, an experienced pro se litigant, 1 has filed a motion for discovery in aid of service of process upon Defendant Jeffrey Torres, as well as a motion for an extension of time to serve Defendant Torres. Defendants have filed motions seeking the pro hac vice admission of their chosen counsel to this Court, as well as a motion seeking a brief extension of their deadline for filing a reply memorandum to a pending motion. 1 The undersigned takes judicial notice of the fact that Plaintiff has filed six lawsuits in this Court alone, all containing similar allegations of illegal telemarketing practices. In addition to the above captioned case, see Case No. 1:11-cv-409 (closed), Case No. 1:12-cv-630, Case No. 1:15-cv-108 (closed), Case No. 1:16-cv-1102, and Case No. 1:16-cv-1127. Plaintiff recently filed a “miscellaneous” case, Case No. 1:17mc-02, that was administratively closed by Magistrate Judge Litkovitz as improperly opened, to the extent it relates to an existing civil case. In addition, Plaintiff’s filings in this Court allude to related litigation he has pursued in state court(s). 1 Dockets.Justia.com II. Analysis of Pending Motions Motions Concerning Service on Defendant Torres Plaintiff originally initiated this lawsuit on July 27, 2016, without identifying any Defendant other than three “John Does.” He also failed to serve or identify any of the John Doe Defendants prior to October 27, 2016, as required by Rule 4(m) of the Federal Rules of Civil Procedure. In fact, for more than three months Plaintiff had filed nothing of record to indicate that he had taken steps to identify any Defendant or to achieve service on anyone. However, on December 12, 2016, Plaintiff filed an Amended Complaint newly identifying 16 Defendants (6 individual and 10 companies) and terminating the original three “John Doe” Defendants. (Doc. 3). The Court directed Plaintiff on December 16 to complete service within thirty (30) days. (Doc. 6). However, for good cause shown, the Court later granted Plaintiff’s motion for an extension of time to perfect service on all domestic Defendants, until February 3, 2017. (Doc. 22). Plaintiff recently filed two additional motions that seek limited discovery and additional time in which to perfect service on Defendant Jeffrey Torres, who Plaintiff states is the only Defendant who has yet to be served. (See Doc. 63). For the reasons stated in both motions, which are unopposed, the requested relief will be granted up to and including May 15, 2017. However, and contrary to the Plaintiff’s contention, the undersigned does not view Rule 4(d)(2) as mandating that all expenses incurred in serving Mr. Torres, including the expense of discovery and/or identifying the place of service, be imposed on Mr. Torres. Rule 4(d)(2), Fed. R. Civ. P. is intended to impose the ordinary costs of 2 service upon a defendant who fails “without good cause, to sign and return a waiver requested by a plaintiff located within the United States.” At this point in time, Plaintiff has not located or served Mr. Torres with a waiver; therefore, the cost-shifting rule is inapplicable. In addition, because this case has now been pending for nearly 8 months, Plaintiff is forewarned that the Court is unlikely to grant future extensions for service on this lone remaining Defendant. Defendants’ Motions Counsel for Defendants Gregory Filippo, James Filippo and the Estate of Vilma Filippo has filed a motion for leave to appear pro hac vice. All relevant conditions for such admission appearing to have been satisfied, Defendant’s motion is granted. Defendants also seek an extension of time in which to file a reply memorandum in support of setting aside the Clerk’s Entry of Default against them. Because the undersigned does not require further briefing and the R&R filed this same day addresses the same pending motion, their motion for extension will be denied. III. Conclusion and Order Accordingly, IT IS ORDERED: 1. Plaintiff’s motions for an additional extension of time to complete service upon Defendant Jeffrey Torres, and to conduct discovery on a related corporation to discover the residential address or Mr. Torres and/or a location where he can be served, (Docs. 35, 63) are GRANTED up to and including May 15, 2017; 2. Defendants’ motion for leave to permit counsel to appear pro hac vice (Doc. 61) is GRANTED. 3 3. The Filippo Defendants’ unopposed motion for an extension of time to file a reply memorandum (Doc. 64) is DENIED AS MOOT in light of the Report and Recommendation filed today; 4. Based upon the R&R that recommends setting aside the Entry of Default against them, the Filippo Defendants shall appear and file their Answer and Affirmative Defenses (Doc. 50-1) on or before March 31, 2017. Absent rejection of the pending R&R, the Answer of the Filippo Defendants shall be considered as if timely filed. s/Stephanie K. Bowman Stephanie K. Bowman United States Magistrate Judge 4