United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION
L. SCOTT COOGLER, District Judge.
Plaintiff Roderick Graham ("Graham") filed this action on April 22, 2013, naming as defendants Tasa Group, Inc. ("Tasa Group"), Richard Beckert, David Seltzer, and Leonard Schwartz d/b/a Schwartz & McClure. Graham alleges that all defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA") and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO"), and asserts fraud, theft of property, and negligent and wanton hiring, training, supervision and retention claims under Alabama state law. Graham's complaint seeks damages, a temporary restraining order, a preliminary injunction, and a permanent injunction.
This Court currently has for consideration several pending motions:
1) Defendant Leonard Schwartz filed a motion to dismiss Graham's complaint for lack of subject matter jurisdiction and failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). (Doc. 7.)
2) Graham filed a motion to amend his complaint within his response to defendant Leonard Schwartz's motion to dismiss. (Doc. 12.)
3) Defendants Tasa Group, Richard Beckert, and David Seltzer filed a joint motion to dismiss Graham's complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6). (Doc. 14.)
4) Graham filed a motion to strike an exhibit used by defendants Tasa Group, Richard Beckert, and David Selzter in their motion to dismiss. (Doc. 32).
5) The magistrate judge previously assigned to the case issued a report and recommendation regarding a Suggestion of Death filed on the record as to defendant Leonard Schwartz, and Graham filed a timely objection thereto. (Docs. 23 and 24.)
6) Defendants Tasa Group, Richard Beckert, and David Seltzer have twice renewed their pending motion to dismiss. (Docs. 39 and 56.)
This opinion will explain why all of the motions to dismiss are due to be granted and this case dismissed for lack of subject matter jurisdiction,  Graham's motion to amend his complaint is due to be denied, the magistrate judge's report and recommendation is due to be accepted and adopted, and Graham's motion to strike is due to be denied as moot.
Graham is an attorney residing in Alabama. (Doc. 1 at ¶ 3.) Defendant Tasa Group is a Pennsylvania corporation that delivers expert witness referrals to attorneys throughout the country. ( Id. at ¶ 4.) In or around July 2009, Graham engaged Tasa Group to retain an expert witness to testify in a case in federal court in Alabama in which Graham was acting as an attorney. ( Id. at ¶ 9-10.) Graham entered into an agreement with Tasa Group whereby Tasa Group agreed to facilitate a relationship between Graham and defendant Richard Beckert ("Mr. Beckert") in exchange for Graham making payments to Tasa Group. ( Id. at ¶ 16.) Mr. Beckert is an individual residing in South Carolina who provides expert services in litigation. ( Id. at ¶ 5). According to Graham, Tasa Group quoted him an initial fee of $1, 394.00 and told Graham that said fee would cover the cost of providing the initial expert report required by the Federal Rules of Civil Procedure. ( Id. at ¶ 11-15.) Graham sent a check to Tasa Group in the amount of $1, 394.00. ( Id. at ¶ 13.) However, when Graham would ask Mr. Beckert about the initial report, he would "stall by saying that he did not know whether he could help [Graham] in the case." ( Id. at ¶ 16.) Graham alleges that "[a]fter several phone calls about the initial report, [Graham] had no choice, but to inform the court and opposing counsel in the  case that he would not use an expert in the case." ( Id. ). Graham then called Tasa Group and Mr. Beckert and told them that he did not want to use Mr. Beckert as an expert and that he no longer wanted an expert report. ( Id. at ¶ 17.)
On September 24, 2009, Graham received a bill from Tasa Group for $6, 034.43. ( Id. at ¶ 19.) From January 26, 2010 to March 31, 2010, Graham received several phone calls from defendant David Seltzer ("Mr. Seltzer"), Tasa Group's Pennsylvania attorney, and Tasa Group, claiming that Graham owed Tasa Group $5, 140.43. ( Id. at ¶ 20.) Tasa Group then filed a complaint against Graham in the District Court for the Commonwealth of Pennsylvania, Montgomery County, to recover the monies it said Graham owed. Tasa Group engaged Mr. Seltzer to act as Tasa Group's legal counsel in that lawsuit. The Pennsylvania complaint alleged that Graham owed Tasa Group $5, 140.43 for professional services rendered. Despite being served,  Graham did nothing to defend against the Pennsylvania lawsuit. Tasa Group obtained a default judgment against Graham on May 2, 2011.
That judgment was then domesticated-through the efforts of Tasa Group's Alabama counsel, defendant Leonard Schwartz ("Mr. Schwartz")-in the Circuit Court of Jefferson County, Alabama, in case number CV-2011-01855. Judgment was entered against Graham in the Circuit Court of Jefferson County, Alabama, on October 12, 2011.
Graham, representing himself pro se, filed the instant lawsuit against Tasa Group, Mr. Beckert, Mr. Seltzer, and Mr. Schwartz in April 2013. This action was reassigned to the undersigned on February 12, 2015. (Doc. 58.)
III. Discussion of Pending Motions
A. The Magistrate Judge's Report and Recommendation
On October 14, 2013, counsel for Mr. Schwartz filed a Suggestion of Death Upon the Record, stating that Mr. Schwartz died on October 13, 2013. (Doc. 22.) The magistrate judge previously assigned to this case entered a report and recommendation on January 23, 2014, recommending that the district court dismiss all of Graham's claims against Mr. Schwartz pursuant to Federal Rule of Civil Procedure 25(a)(1), because over 90 days had passed since the Suggestion of Death was filed and Graham had not filed a motion for substitution of Mr. Schwartz's personal representative as a defendant. (Doc. 23.) Graham filed a timely objection to the report and recommendation. (Doc. 24.)
Pursuant to Fed.R.Civ.P. 72(b)(3), this Court has reviewed the magistrate judge's report and recommendation and Graham's objection to it de novo. Graham argues that the 90-day period of time did not begin running at the filing of the Suggestion of Death for several reasons: 1) the Suggestion of Death did not identify the decedent's successor or representative; 2) the Suggestion of Death was not filed by either a party or by a representative of the decedent, and the decedent's attorney does not count as an appropriate representative; and 3) the Suggestion of Death was not served on the decedent's successor or representative. In making these arguments, Graham incorrectly attributes the rules and requirements for filing a motion for substitution of a party under Fed.R.Civ.P. 25(a)(1) to the filing of the Suggestion of Death. Nothing in Rule 25 requires the Suggestion of Death to identify the decedent's successor or representative; nor does it say anything about who may properly file the Suggestion of Death. The only requirement Rule 25 sets forth for the Suggestion of Death is that it must be served on all parties as provided for in Fed.R.Civ.P. 5 and served on all non-parties as provided for in Fed.R.Civ.P. 4. See Fed.R.Civ.P. 25(a)(3). Here, Mr. Schwartz's attorney properly served the Suggestion of Death on all parties by serving it on their attorneys of record pursuant to Fed.R.Civ.P. 5(b)(1). However, without citing any rule or case with precedential value in support, Graham argues that the Suggestion of Death had to be served on Mr. Schwartz's legal representative because that person is an appropriate non-party to this lawsuit. Even if Mr. Schwartz's legal representative could be considered a non-party to this lawsuit such that he or she had to also be served with the Suggestion of Death, Graham cannot now complain about an alleged defect in service on a non-party and use that as an excuse not to file a timely motion to substitute a party as required under Rule 25(a)(1). Indeed, other than to object to the magistrate judge's report and recommendation, Graham has taken no action since the Suggestion of Death was filed in October 2013 to substitute a party for Mr. Schwartz, either by naming a representative or opening an estate himself and asserting claims against it. Graham also argues that he was not required to move for substitution because he sued Mr. Schwartz in his firm's name, suggesting that any judgment entered against Mr. Schwartz would automatically transfer to his law partners. Graham has cited no authority for his excuse for not filing a motion for substitution of parties on this ground, and the Court can find none.
Accordingly, the magistrate judge's report and recommendation is due to be adopted and accepted. Accordingly, Graham's claims against Mr. Schwartz d/b/a Schwartz & McClure are due to be dismissed with prejudice and Mr. Schwartz d/b/a Schwartz & McClure is due to be dismissed with prejudice as a defendant from this action. The Court also notes that Mr. Schwartz's motion to dismiss, filed prior to his death, raises many of the same arguments and defenses as does the joint motion to dimiss filed by Tasa Group, Mr. Beckert, and Mr. Seltzer. In the alternative, and for the reasons stated herein, Mr. Schwartz's motion to dismiss is due to be granted and all claims against him dismissed even if he were not dismissed from this action pursuant to Fed.R.Civ.P. 25.
B. Tasa Group, Mr. Beckert, and Mr. Seltzer's Motion to Dismiss and ...