United States District Court, D. Oregon
OPINION AND ORDER
Mustafa T. Kasubhai, United States Magistrate Judge
Madsen moves this Court for a Default Judgment against
Defendant Harris, aka Parr. Pl. Mot. Default. J., ECF No. 65.
The Court construes Plaintiffs Motion for Default Judgment as
a Motion for Sanctions under Rule 37 of the Federal Rules of
Civil Procedure. The Court GRANTS the Motion for the reasons
and to the extent stated below.
filed a Complaint alleging violations of 47 U.S.C. § 227
(b) et seq., the Telephone Consumer Protection Act ("TCP
A") and of numerous Oregon consumer protection statutes
more than two years ago, on November 15, 2016. Compl, ECF No.
1. He alleged that Defendant, through his business as a
professional marketer, invaded Plaintiffs privacy, harassed
Plaintiff, acted as a nuisance, and used Plaintiffs limited
telephone minutes by repeatedly calling Plaintiffs phone No.
using an automatic telephone dialing system
("ATDS") and leaving lengthy "prerecorded
voice messages" on Plaintiffs phone without permission.
Id. at 6, ¶ ¶ 10- 12. Plaintiff complained
that Defendant called him 18 times from July 28, 2016 through
October 20, 2016 (id.), despite Plaintiff
registering on the national "Do Not Call" list
specifically to avoid these types of advertising calls.
Id. at 9, ¶ 22. Plaintiffs Complaint sought
injunctive relief and actual or statutory damages of $1500
for each violation of the TCP A ("total $27, 000), up to
$5000 for violations of Oregon state law, punitive damages,
attorney's fees, and costs. Id. at 10, ¶
Harris appeared January 30, 2017 by filing a Motion to
Dismiss or in the Alternative to Stay Proceedings, disputing
Plaintiffs standing under the TCP A, personal jurisdiction,
failure to properly plead claims, and arguing the case should
be stayed pending an outcome in another case involving ATDSs.
Mot. Dismiss at 2, ¶ I-II, ECF No. 8. Plaintiff filed a
Response February 13, 2017 (Pl. Resp. Mot. Dismiss, ECF No.
9) and amended his complaint February 16, 2017. First Am.
Compl, ECF No. 10. Plaintiffs First Amended Complaint reduced
the damages for state law claims to $3600. Id. at
18-19, ¶ 47.
March 16, 2017, Defendant had not filed a Reply to the
Plaintiffs Response to the Motion to Dismiss, and the Court
received and filed Plaintiffs Motion for Entry of Default.
Pl. Mot. Default, ECF No. 12. The Court denied that Motion,
as Defendant "has appeared in this lawsuit." Order,
ECF No. 13. The Court also denied Defendant's Motion to
Dismiss as moot, given Plaintiffs filing of a First Amended
Complaint. Id. The Court ordered Defendant to file
any Motion to Dismiss the First Amended Complaint within 30
days of the Order. Id.
filed an Answer to the Plaintiffs Amended Complaint on May 2,
2017, in which Defendant first claimed that "[A] Copy of
the Amended Complaint was not received by the Defendant,
therefore please accept this correspondence by the Court as
Answer [T]o Plaintiffs Amended Complaint." Answer, ECF
No. 15 at 1. In lieu of a formal Answer, Defendant's
correspondence was a letter to "The Honorable Judge
Jolie A. Russo" in which he stated that Plaintiff is a
"self-proclaimed Business Owner, Business Coach and
Marketing Expert." Id. He alleged that
Plaintiff requested information from him about how Plaintiff
could arrange to use Defendant's marketing services on
Plaintiffs behalf, and, that after several months of
communication with Defendant, Plaintiff requested an invoice
because "he was ready to hire John Harris for his
Marketing Services." Id. Further, Defendant
alleged that Plaintiff has filed multiple, similar cases as
the present case, and that because Defendant did not comply
with Plaintiffs multiple Demand letters asking for money,
Plaintiff filed a Complaint. Id. at 1-2. Defendant
claims that since filing the Complaint, Plaintiff has called
Defendant "multiple times and bragged... about his'
self-taught' knowledge of how to file this type of case
and that he is confident that he will be awarded 10's of
thousands of dollars by this Court." Id.
Defendant complains of Plaintiff wasting the Court's time
and denies that Plaintiff has suffered harm caused by
Defendant. Id. at 2.
filed a subsequent one-paragraph "Amended Answer to
Plaintiffs Amended Complaint" May 8, 2017, simply
denying all claims. Am. Answer, ECF No. 16. Defendant failed
to file affirmative defenses in, and did not attach exhibits
to, either Answer. Answer, ECF No. 15, Am. Answer, ECF No.
16. Plaintiff filed a Response to the Answer (Pl. Resp. Def.
Answer, ECF No. 17) and a Response to the Amended Answer (Pl.
Resp. Def. Am. Answer, ECF No. 18), on May 10, 2017 and May
19, 2017 respectively.
filed a Motion for Leave to File Second Amended Complaint
(Mot. Leave File Sec. Am. Compl., ECF No. 19), which the
Court granted June 28, 2017. Order, ECF No. 20. Plaintiff
filed the Second Amended Complaint ("SAC") twice,
once on June 29, 2017 and again on July 12, 2017, with no
intervening documents filed by either party, or orders issued
by the Court. Sec. Am. Compl. ECF No. 22, Sec. Am. Compl.,
ECF No. 23. The body of the two SACs are substantively
identical. Compare Sec. Am. Compl., ECF No. 22, with Sec. Am.
Compl., ECF No. 23. As the Court notes in its September 7,
2017 Order (ECF No. 29), Plaintiffs SAC makes only one change
to the First Amended Complaint: Plaintiff alleges Defendant
John Harris is "also known as (aka) Jonathan Ashford
Parr." Sec. Am. Compl. at 1, ¶ I, ECF No. 22, Sec.
Am. Compl, at 1, ¶ I, ECF No. 23. On August 7, 2017,
Plaintiff filed a Motion for Judgment. Pl. Mot. J., ECF No.
Answer to the SAC (in response to both filed SACs docketed as
ECF Nos. 22 and 23), in which he again simply denies all
claims, was filed August 14, 2017 (Answer Sec. Am. Compl, ECF
No. 26), and Plaintiffs Response to that Answer followed on
August 29, 2017. Pl. Resp. Answer Sec. Am. Compl,
ECF No. 28. An August 14, 2017 "Clerk's Notice of
Mailing" notes that the Answer from Defendant John
Harris "was sent in by mail." Clerk Notice Mail,
ECF No. 27.
Plaintiffs SAC is identical to the First Amended Complaint,
"except that Plaintiff added an "aka" for
Defendant," and because Defendant had filed an Answer to
the SAC, the Court ruled that the Plaintiffs Motion for
Judgment was moot. Order, ECF No. 29. The Court ordered the
parties to file Status Reports proposing pretrial deadlines,
"including the close of discovery and dispositive
motions, by 10/5/2017." Id. Plaintiff filed his
Status Report September 26, 2017. Pl. Status Report, ECF No.
failed to follow the Court's Order directing the parties
to file Status Reports. See generally Civ. Docket, Madsen
v. Harris, No. 1:16-cv-02170-JR (D. Or.). The Court
noted Defendant's non-compliance on October 10, 2017,
five days after the Status Report was due, but allowed
Defendant another ten days to file or object to Plaintiffs
Status Report, warning Defendant that failure to file the
Report would result in the Court adopting Plaintiffs proposed
timelines. Order, ECF No. 32. By November 7, 2017, Defendant
had again failed to submit the Status Report and the Court
adopted Plaintiffs schedule. Sched. Order, ECF No. 34. The
Clerk noted mailing the order to both parties that same day.
Clerk Notice Mail., ECF No. 35.
two months later, on January 8, 2018, Plaintiff filed a
Motion to Compel Discovery. Pl. Mot. Compel, ECF No. 36. On
February 1, 2018, Judge Russo set a telephone Status
Conference (Sched. Order, ECF No. 39), of which both parties
were again notified by mail by the Clerk. Clerk Notice Mail,
ECF No. 40. On March 2, the date of the scheduled Status
Conference, Defendant failed to appear. Min. Proceed., ECF
No. 41. Plaintiff appeared pro se. Id. Three days
later, on March 5, 2018, the Court granted Plaintiffs Motion
to Compel Discovery, ordering Defendant to either respond to
Plaintiffs first set of interrogatories and request for
production within fourteen days of the Order, or to object.
Order, ECF No. 42. Importantly for purposes of the present
Motion, Judge Russo notified Defendant that "[A]ny
continued refusal to respond or object may be treated as a
concession of liability so that judgment will be entered for
the plaintiff." Id. (emphasis added). The Clerk
issued a Notice of Mailing indicating both parties were
mailed the Order. Clerk Notice Mail, ECF No. 43.
March 27, 2018 Notice to Court and Status Update alerted the
Court that Defendant remained out of compliance with court
orders regarding discovery by failing to respond to
interrogatories or produce any documents requested by
Plaintiff, making no attempts to contact Plaintiff, and not
filing a notice of intent to respond. Pl. Notice Court Status
Update, at 1-2, ¶ 3 ECF No. 44; see generally Civ.
Docket, Madsen v. Harris, No. 1:16-cv-02170-JR (D.
Or.). The Court issued an Order on March 28, 2018 noting that
"[A]s of the date of this Order, defendant has failed to
either respond to plaintiffs [sic] discovery requests or file
objections." Order, ECF No. 45. The Court ordered the
parties to file a written status report by April 11, which
was mailed to the parties on March 29, 2018. Order, ECF No.
45; Clerk Notice Mail, ECF No. 48. Plaintiff filed his Status
Report as ordered, on April 5, 2018. Pl. Status Report, ECF
obtained an attorney who, on April 10, 2018, filed a Notice
of Appearance (Notice Appear., ECF No. 50), a Status Report
(Def. Status Report, ECF No. 52), and moved for an Extension
of Time to Respond to the Court's March 3, 2018 Discovery
Order. Def. Mot. Ext. Time Respond, ECF No. 51. The court
granted Defendant's Motion for Extension of Time and set
new dates for completing discovery and for filing dispositive
motions. Order, ECF No. 53.
meantime, on April 18, 2018, Plaintiff filed a Motion to Deny
Defendant's Motion for Extension of Time to Respond to
Discovery Order (Pl. Mot. Deny Def. Mot. Ext. Time, ECF No.
54). Plaintiffs Motion to Deny Defendant's Motion for
Extension of Time was filed two days after the Court's
Order granting Defendant's Motion for Extension of Time
(Order, ECF No. 53). Thus, the Court ruled Plaintiffs Motion
to Deny Defendant's Motion for Extension of Time moot.
Order, ECF No. 55.
Order denying Plaintiffs Motion to Deny Defendant's
Motion for Extension of Time (ECF No. 55), the Court ordered
that the parties confer on all motions, as required by Local
Rule 7-1(a). The Court specifically ordered Defendant to
comply with the discovery deadlines previously ordered on
March 3, 2018 in ECF No. 42. Id. The Court noted
that "this matter has been pending for nearly a year and
a half and meaningful discovery has yet to commence. No.
further extensions of time will be allowed without a showing
of good cause." Id.
counsel filed an Unopposed Motion to Withdraw on August 14,
2018, citing "a breakdown in the attorney-client
relationship." Def. Mot. Withdraw, Decl. Counsel,
Attach. 1 at 1, ¶ 3, ECF No. 56. The Court ...