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Madsen v. Harris

United States District Court, D. Oregon

January 15, 2019

JEFF MADSEN, Plaintiff,
v.
JOHN HARRIS, Defendant.

          OPINION AND ORDER

          Mustafa T. Kasubhai, United States Magistrate Judge

         Plaintiff 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.

         I. Background

         Plaintiff 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, ¶ 27.

         Defendant 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.

         By 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.

         Defendant 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.

         Defendant 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.

         Plaintiff 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. 25.

         Defendant's 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.

         Because 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. 30.

         Defendant 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.

         Almost 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.

         Plaintiffs 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 No. 49.

         Defendant 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.

         In the 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.

         In the 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.

         Defendant's 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 ...


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