Dudla v. P.M. Veglio LLC

• Decision Date: 15 March 2016
• Docket Number: 1:13-cv-0333 (LEK/DJS)
• Parties: SHAWN DUDLA, d/b/a Nu Visions Enterprises, Plaintiff, v. P.M. VEGLIO LLC, d/b/a Paul Mitchell the School Oveido, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

SHAWN DUDLA, d/b/a Nu Visions Enterprises, Plaintiff, v. P.M. VEGLIO LLC, d/b/a Paul Mitchell the School Oveido, et al., Defendants.

1:13-cv-0333 (LEK/DJS)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

March 15, 2016

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Pro se Plaintiff Shawn Dudla ("Plaintiff") commenced the present action against Defendants P.M. Veglio LLC ("Veglio LLC"); Von Curtis, Inc. ("Von Curtis");¹ Giulio Veglio ("Veglio"); and Winn C. Claybaugh ("Claybaugh") (collectively "Defendants") under 28 U.S.C. § 1332 alleging breach of contract claims. Dkt. No. 1 ("Complaint"). On July 17, 2013, Plaintiff filed an Amended Complaint realleging his breach of contract claims and adding numerous constitutional claims and additional state-law claims arising out of the same dispute. Dkt. No. 11 ("Amended Complaint"). Presently before the Court are Defendants' Motion to dismiss, Plaintiff's Motion to strike that Motion, and Defendants' Cross-Motion for sanctions. Dkt. Nos. 51 ("Motion"); 58 ("Motion to Strike"); 64 ("Sanctions Motion"). For the following reasons, the Motion to dismiss is granted and the Motion to strike and the Cross-Motion for sanctions are denied. Plaintiff's Amended Complaint is therefore dismissed without leave to amend.

II. BACKGROUND²

The parties are presumed to be familiar with the background of this case, and only those facts necessary to the resolution of the pending Motions are repeated here. For a complete statement of Plaintiff's allegations and claims, reference is made to the Amended Complaint. Plaintiff's claims arise from a contract with Defendants and a related lawsuit filed in the 9th Judicial Circuit, Osceola County, Florida, on December 26, 2012, by Von Curtis, Inc. d/b/a Paul Mitchell The School Orlando (the "Florida action"). Am. Compl.; Dkt. No. 11-1 at 55-62 ("Florida Complaint").³

A. The Contract

In April of 2012, Plaintiff consulted with Veglio regarding "Low Voltage Engineering" work associated with the relocation of Paul Mitchell the School Orlando from Orlando to Oviedo. Am. Compl. ¶ 15. Plaintiff then placed a bid for the engineering work at the school's new location on orabout July 12, 2012, and was awarded the contract soon afterward. Id. Plaintiff's contract, however, was accepted by Veglio with $35,000 in unauthorized alterations, and Plaintiff withdrew his bid on July 20, 2012. Id. After two days of receiving voicemails and text messages from Veglio, Plaintiff reconciled with and met with Veglio in person on July 24, 2012, and reached an agreement on the contents of the contract as well as the policy for alterations. Id. After another meeting on July 27, 2012 where further changes were discussed, Veglio and Plaintiff signed the agreement on July 31, 2012, which was officially executed between Plaintiff, Veglio, and "P.M. Veglio, LLC d/b/a Paul Mitchell the School Oveido." Id.⁴ Plaintiff commenced work on August 24, 2012, and worked until either November or December of 2012. Id. ¶ 16.

B. The Florida Action⁵

The Florida action was commenced on December 27, 2012 by the filing of a complaint listing Von Curtis as the sole plaintiff and alleging various breach of contract claims against Plaintiff arising from the engineering work. Id. ¶ 17, Florida Compl. at 1. Plaintiff filed a motion for summary judgment on February 6, 2013, alleging lack of jurisdiction and that Plaintiff lacked standing to sue as Von Curtis was not itself a party to the contract. Dkt. No. 11-2 at 6-47. On March 20, 2013, Von Curtis moved to amend the Florida Complaint to, among other things, add theremaining Defendants in the instant case as plaintiffs. Dkt. No. 11-4 at 5-6; see also id. at 8-45 ("Florida Amended Complaint").⁶ Plaintiff opposed the motion to amend, Dkt. No. 11-4 at 47-60, and included a "General Answer to Complaint," id. at 51-52. This "general answer" did not assert a jurisdictional defense or any other affirmative defenses.

A hearing was held on the motion to amend on April 1, 2013. Id. at 62-79 ("April Transcript");⁷ see also Am. Compl. ¶ 19. At the April 1 hearing, while the Florida state court was considering the motion to amend, Plaintiff instead argued that subject matter and personal jurisdiction did not exist due to the fact that Von Curtis was the only named plaintiff, and thus the motion to amend should not be considered. Apr. Tr. at 68:17-70:9. The court allowed the motion to amend. Id. at 71:2-4. It then denied Plaintiff's motion for summary judgment, as it was "the wrong motion to be filing for personal jurisdiction and subject matter jurisdiction." Id. at 71:9-12. The court noted that Plaintiff had likely waived his personal jurisdiction defense due to the inclusion of the "general answer" in the opposition to the motion to amend. Id. at 71:20-22.

On April 3, 2013, Plaintiff filed a motion to dismiss the Florida Complaint for lack of subject matter and personal jurisdiction. Dkt. No. 11-2 at 53, 55-98. After service of the Florida Amended Complaint, Plaintiff filed an answer on May 10, 2013, which did not assert or reserve jurisdictional defenses. Dkt. No. 55-3 at 94-103. He then moved to dismiss the Florida Amended Complaint for the same reasons, adding that the original Florida Complaint was a result of fraud upon the court. Dkt. No. 11-6 at 9; see also Dkt. Nos. 11-3 (supplemental affidavit); 11-7 (second portion of exhibits attached to motion to dismiss Florida Amended Complaint). A hearing was held on the motion to dismiss on June 11, 2013. Dkt. No. 11-8 at 2-20 ("June Transcript").⁸ At the hearing, Plaintiff discussed at length that Von Curtis did not have standing to sue due to not being a named party on the contract. Id. at 7:22-8:15, 9:9-10:6. Plaintiff also argued that service was not properly effectuated as proof of service was insufficient. Id. at 8:16-9:8. Defendants claimed that both Plaintiff's motion for summary judgment and his answer waived all defenses except subject matter jurisdiction, which existed due to the allegation of sufficient damages in both the Florida Complaint and the Florida Amended Complaint. Id. at 13:1-9. Defendants also noted that they had properly served Plaintiff's mother with the Florida Amended Complaint, which they claim Plaintiff did not contest. Id. at 14:1-10. Plaintiff, in rebuttal, emphasized that the initial service of process was defective, id. at 15:10-24, and that there was not enough proof attached to the Florida Amended Complaint regarding amount in controversy or venue, id. at 16:1-17:4. The court denied Plaintiff's motion, noting on two separate occasions that Plaintiff had filed a formal answer on May 10. Id. at 11:22-24, 17:14, 18:3. However, counsel for Defendants stated to the court that they would consentto Plaintiff amending his answer to include jurisdictional arguments. Id. at 18:3-14. Plaintiff did not do so. Case Search, Official Website for the Osceola County Clerk of the Circuit Court, https://courts.osceolaclerk.org/ BenchmarkWeb/Home.aspx/Search (select "Case Number" and search for "2012 CA 5882CI") ("Florida Docket Sheet") (last visited March 7, 2016).

On January 29, 2014, the initial judge assigned in the Florida action disqualified himself after a motion by Plaintiff, and the case was reassigned on January 30, 2014. Dkt. No. 55-2 at 35-37. This was shortly followed by an order from the court on February 5, 2014 prohibiting any further telephone hearings and instead mandating in-person hearings for all future conferences. Dkt. No. 55-2 at 38-39. On February 12, 2014, Plaintiff also filed a motion (1) asking for reconsideration of the April 1, 2013 proceeding, (2) asking to vacate "all Court Orders made subsequent to the April 1st, 2013 proceeding," and (3) as a third motion to dismiss the case, as well as (4) requesting $100 per day in sanctions against Defendants. Dkt. No. 55-3 at 71-93. This motion to reconsider and dismiss was denied on March 13, 2014. Dkt. No. 55-2 at 41.⁹

On April 14, 2014, the court entered a default against Plaintiff based on a motion by Defendants for an order to show cause, which Plaintiff opposed.¹⁰ Dkt. No. 55-2 at 42 ("Florida Default").¹¹ The court noted that Plaintiff had indisputably received discovery and did not properlyrespond to any of the discovery requests. Id. at 42-43. A hearing had been held on a motion to compel on December 16, 2013, with Plaintiff calling in remotely, and Plaintiff, even after the entry of an order to compel, continued to refuse to comply with the order and continued to assert jurisdictional defenses, claiming "entrapment." Id. at 43-44. The court found that there was no evidence of any kind of entrapment, and that Plaintiff's jurisdictional arguments had already been litigated and repeatedly decided. Id. at 44-45. The court noted an email from Plaintiff, in response to Defendants' willingness to accept untimely responses to discovery requests, mostly contained conclusory assertions regarding misconduct and fraud. Id. at 45. Therefore, the court deemed the facts of the Florida Amended Complaint admitted, Plaintiff's pleadings stricken, and limited the remainder of the case to resolving the issue of damages. Id. at 48-49.

On April 24, 2014, Plaintiff filed a motion to disqualify the second judge in the Florida action, due to willful fraud, failure to perform duties, partiality toward Defendants, criminal conduct, conflict of interest, coercion and duress, and collusion. Dkt. No. 55-2 at 53-56. On April 25, 2014, the court denied Plaintiff's motion as "more concerned with [Plaintiff]'s disagreement of the rulings in the Orders entered by the Court" and noted that an appeal would be the appropriate manner of redress for Plaintiff. Id. at 59.

Plaintiff filed a fourth motion to dismiss the original Florida Complaint on May 5, 2014. Dkt. No. 55-3 at 104-124. Plaintiff, in addition to the claims regarding jurisdiction, also alleged that Defendants' counsel never properly appeared in the Florida action and thus could not...