BARBARA ANDERSEN, Plaintiff, v. GREGORY A. THOMPSON, et al., Defendants Case No. 1:22-CV-00627 United States District Court, N.D. Ohio, Eastern Division Filed: October 14, 2022 Counsel Barbara Andersen, Santa Fe, NM, Pro Se. Gregory A. Thompson, Berea, OH, Pro Se. Parker, Thomas M., United States Magistrate Judge ORDER *1 Currently pending before the court are a dozen motions filed by the plaintiff, Barbara Andersen, and one of the defendants, Gregory Thompson. Presently, the court has the following motions pending: • Motion to dismiss by Thompson (ECF Doc. 60) • Motion for protective order relative to Anderson's private police matters by Andersen (ECF Doc. 62) • Motion for protective order & Motion for Other Relief by Andersen (ECF Doc. 64) • Motion for default judgment against Thompson and Treasure Seekers Brutal Truth LLC by Andersen (ECF Doc. 70) • Motion to voluntarily dismiss party Frank Beier and Jeffrey Street by Andersen (ECF Doc. 72) • Renewed Motion for Default Judgment against Thompson and Treasure Seekers Brutal Truth LLC & Motion for Immediate Injunctive Relief and for Sanctions by Andersen (ECF Doc. 73) • Motion to compel discovery against Thompson and Treasure Seekers Brutal Truth LLC & Motion for sanctions against Thompson and Treasure Seekers Brutal Truth LLC by Andersen (ECF Doc. 74) • Motion to supplement Renewed Motion for Default and Sanctions by Andersen (ECF Doc. 75) • Motion to declare plaintiff [a] vexatious litigator by Thompson (ECF Doc. 76) • Motion to strike Docket 76 & Motion for gag order and sanctions against Thompson and Treasure Seekers Brutal Truth LLC by Andersen (ECF Doc. 77) • Second Motion for protective order against Thompson and Treasure Seekers Brutal Truth LLC & Motion for sanctions against Thompson and Treasure Seekers Brutal Truth LLC by Andersen (ECF Doc. 78) • Motion for protective order against Thompson and Treasure Seekers Brutal Truth LLC by Andersen (ECF Doc. 79) In broad strokes, these motions fall into five different categories of filings: (i) Thompson's motion to dismiss (ECF Doc. 60); (ii) those motions related to discovery (see ECF Doc. 62, ECF Doc. 64, ECF Doc. 74, ECF Doc. 78, ECF Doc. 79); (iii) motions for default judgment (see ECF Doc. 70, ECF Doc. 73, ECF Doc. 75); (iv) motions regarding Thompson's motion to have Andersen declared a vexatious litigator (see ECF Doc. 76, ECF Doc. 77); and (v) Andersen's motion to voluntarily dismiss two defendants (ECF Doc. 72). Because it is a dispositive motion, Andersen's motion to voluntarily dismiss two defendants will be addressed in a contemporaneously filed Report and Recommendation. I. Thompson's Motion to Dismiss As to Thompson's motion to dismiss, because Andersen subsequently filed an amended complaint with leave of the court, that latter complaint is operative, the original complaint has been superseded, and Thompson's motion to dismiss (ECF Doc. 6) must be DENIED as moot. See Webster v. City of Kent, No. 5:10-CV-599, 2010 U.S. Dist. LEXIS 69810, at *4 (N.D. Ohio July 13, 2010) (denying a motion to dismiss a previous complaint as moot after the filing of an amended complaint). II. Andersen's Discover-Related Motions Andersen has filed five separate motions, ECF Docs. 62, 64, 74, 78, and 79, that all relate to discovery issues. Although some of the allegations within the motions appear to request injunctions of various types, each motions has failed to comply with the prerequisites to filing outlined in Fed. R. Civ. P. 37 and this court's local rules. Fed. R. Civ. P. 37(a)(1) requires that any motion to compel include a “certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Local Civil Rule 37.1 mirrors this requirement for motions to compel and motions for protective orders, and, as noted in this court's case management conference order, “[t]he court interprets this as requiring the parties, in addition to any written communication, to communicate by telephone or in person in an effort to resolve the discovery dispute before [contacting the court by phone or email with a request for judicial resolution].” *2 None of Andersen's motions have satisfied these requirements. Only in her Renewed Motion (ECF Doc. 74), does Andersen indicate that she made attempts to discuss with Thompson the issues she had with his discovery responses. But this is only one part of the requirements under Local Civil Rule 37.1. In addition, Andersen was required to reach out to the court informally to request judicial resolution. This did not occur. Thus, the discovery-related motions (ECF Doc. 62, ECF Doc. 64, ECF Doc. 74, ECF Doc. 78, ECF Doc. 79) are DENIED. It is worth mentioning that Andersen's latest motion for a protective order, although procedurally deficient, does note that Thompson e-mailed chambers directly regarding the merits of the case. To reiterate what was noted during the court's case management conference, litigants may e-mail chambers in two limited circumstances: (i) when it is an administrative issue, such as the scheduling of a conference, or (ii) when seeking judicial intervention for a discovery dispute. In either case, the opposing party must be copied on the e-mail. No further e-mails regarding the merits of the case (e.g., any alleged harassment, defamation, YouTube commentary, etc.) should be sent to chambers. Given that this is only the second instance in which Thompson has e-mailed the court and because he included Andersen on the e-mail, the court will not impose sanctions at this time. However, both parties should be cognizant that this rule is not simply for convenience. Complaining to the court in informal emails about the alleged misconduct of the other side is not professional, wastes court resources, and rarely improves chances for efficient resolution of disputes. Had Thompson's e-mail regarding Andersen's alleged harassment been filed as a motion on the court's docket, the court likely would have construed it as a motion to have Andersen's electronic filing access revoked. In the court's June 3, 2022 order, the undersigned granted Andersen's motion to e-file, because “... she has demonstrated ... the decorum that the privilege of e-filing warrants.” ECF Doc. 65 (emphasis added). Engaging in self-help remedies and making apparent or implied threats against another litigant is not consistent with the decorum required of licensed attorneys, who are officers of the court. And, given the material Thompson provided, Andersen is hereby admonished to conduct herself in this litigation in a manner consistent with the privilege the court extended to her in allowing her electronic filing rights. Both parties must refrain from disparaging one another in their litigation activities. III. Andersen's Motions for Default Judgment In addition to her discovery-related motions, Andersen has filed three motions moving for a default judgment against the defendants. See ECF Doc. 70, ECF Doc. 73, ECF Doc. 75. As to the first, because the court subsequently granted Thompson leave to file an answer (although he never did so), Andersen's motion for default (ECF Doc. 70) must be DENIED as moot. As to her remaining motions, Fed. R. Civ. P. 55 dictates the procedure for securing a default judgment against a party in federal court. Rule 55(a) specifies that, prior to a default judgment being granted, the party seeking such a judgment must show by an affidavit or otherwise that the party against whom default is sought has failed to plead or otherwise defend its case; then, the party may apply to the Clerk of Court for entry of default against the party. See Fed. R. Civ. P. 55(a). Because Andersen has not sought or obtained such an entry from the Clerk of Courts, her motions (ECF Doc. 73; ECF Doc. 75) are procedurally improper and are DENIED. IV. Thompson's Motion to have Andersen Declared a Vexatious Litigator *3 Thompson has moved to have Andersen declared a vexatious litigator based on her conduct in this and other cases. ECF Doc. 76. Given the denial of nearly all of Andersen's motions, the basis for having Andersen declared a vexatious litigator in this case has been eliminated – for now. Although Thompson identified alleged conduct of Andersen's in other cases, he has not shown that those filings – alone – demonstrate that Andersen has a “general pattern of litigation in a particular case [that] may be vexatious enough to warrant an injunction in anticipation of future attempts to relitigate old claims.” See Brantley v. Citimortgage, No. 1:16-CV-707, 2016 U.S. Dist. LEXIS 144020, at *18-19 (S.D. Ohio Oct. 18, 2016) (internal quotation marks omitted). Accordingly, Thompson's motion to declare Andersen a vexatious litigator (ECF Doc. 76) is DENIED. Because Thompson's motion is denied, Andersen's related motion to strike (ECF Doc. 77) is DENIED as moot. To the extent Andersen seeks other relief in her motion to strike, as noted above, her motion is improper as to entering a default judgment, imposing sanctions, or issuing a gag order and, thus, it is also DENIED. V. Service of Treasure Seekers Brutal Truth LLC Despite being named in Andersen's amended complaint, on review of the court's docket, it is unclear whether service was ever properly effectuated against Treasure Seekers Brutal Truth LLC (“Treasure Seekers”). The record indicates that Andersen sent the summons to the Ohio Secretary of State. See ECF Doc. 24. She noted in the proof of service, which she personally filled out, the following: “served via mail in that address not current per Ohio Secretary of State.” See ECF Doc. 24 at 2. This does not clarify who she mailed the summons to, what address the summons was sent to, whether Andersen personally mailed the summons, or whether Andersen used some other form of “mail” compliant with the federal rules. From all appearances, Andersen personally mailed through the U.S. Postal Service the summons for Treasure Seekers. However, Fed. R. Civ. P. 4(c)(2) prohibits a party from personally conducting service of process. See Olson v. FEC, 256 F.R.D. 8, 10 (D.D.C. 2009). And California law[1] requires that an acknowledgment of service be returned in order for service by mail to be effectuated. See Laipply v. Laipply, No. 2:21-CV-1905, 2002 U.S. Dist. LEXIS 79650, at *6-7 (E.D. Cal. May 2, 2022). It's worth noting that any default judgment against a party that has not been properly served process must necessarily fail and that a failure to serve may result in the dismissal of the defendant from the case. It appears the deadline to effect proper service upon Treasure Seekers has already expired. Accordingly, the court orders Andersen to provide a position statement explaining: (i) the method of service she used to serve Treasure Seekers, (ii) whether she did so personally or through some other service, such as a process server; and (iii) an explanation of why she believes that method complied with the Federal Rules of Civil Procedure. The position statement must be filed no later than October 21, 2022. Alternatively, if Andersen chooses to file a position statement (by the same deadline) acknowledging the insufficiency of her service, the court grants Andersen 30 days from the issuance of this order to complete service in compliance with the Federal Rules of Civil Procedure. VI. Leave to Answer Additionally, Thompson has not filed any responsive pleadings to Andersen's amended complaint. Despite filing a motion for leave to file his answer, Thompson has yet to file an answer, motion to dismiss, or anything that could reasonably be construed as a response to Andersen's amended complaint. The management of the court's docket is left to its sound discretion. See Knoll v. American Tel. & Tel. Co., 176 F.3d 359, 362-63 (6th Cir. 1999) (noting that district court “must be given substantial discretion” in the management of its docket). Considering his pro se status, the court orders Thompson to file an answer to Andersen's amended complaint or move to dismiss it within 14 days of the issuance of this order – until October 28, 2022. No extensions will be granted. *4 Should Thompson fail to file one of those documents, he will be considered to have abandoned his contentions, Andersen's allegations will be considered admitted, and Thompson will be subject to Andersen's application for the entry of default and any subsequent default judgment against him. VII. Summary In summary, the court orders the following: • Thompson's motion to dismiss (ECF Doc. 60) be DENIED as moot; • Andersen's motions to compel and for protective orders (ECF Doc. 62, ECF Doc. 64, ECF Doc. 74, ECF Doc. 78, ECF Doc. 79) are DENIED; • Andersen's motions for default judgment (ECF Doc. 70, ECF Doc. 73, ECF Doc. 75) are DENIED; • Thompson's motion to have Andersen declared a vexation litigator (ECF Doc. 76) is DENIED; and • Andersen's motion to strike Thompson's motion to have her declared a vexatious litigator (ECF Doc. 77) is DENIED. Additionally, Andersen is ordered to file a position statement as outline above no later than Friday, October 21, 2022. Should she find that her service was insufficient, the court grants her 30 days from the date of this order – until November 14, 2022 – to complete service in accordance with the Federal Rules of Civil Procedure. Moreover, Thompson is ordered to file an answer or a motion to dismiss Andersen's amended complaint no later than Friday, October 28, 2022. Failure to comply subjects Thompson to Andersen's application for the entry of default against him. IT IS SO ORDERED. Footnotes [1] This court must consider the law of the state in which the district court sits, in this case California, because that is where the action originated.