Pinson v. Midland Funding LLC et al

RESPONSE to Motion re MOTION to Declare John Pinson a Vexatious Litigant and for Order to Post Bond

S.D. Fla.September 18, 2013

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA W EST PALM BEACH DIVISION CASE NO. 9:12-ev-80675-W JZ John Pinson 1 .? ? F 1 'u E D t', y ' D kO, .j . ! r' . IuF 1 7 2213 ..S T E 'i& ' E rk t 1/ L A r.'è 1hJ $- ' q E' L E i' 1( t; . t'g O t 'l T t NTLL, . .S . D . L ) F F L. h . - bl>:. R B .Plaintiff , VS M IDLAND FUNDING LLC, et aI. Defendants. / PLAINTIFF'S RESPONSE TO DEFENDANT'S M OTION TO DECLARE JOHN PINSON A VEXATIOUS LITIGANT AND FOR ORDER TO POST BOND AND M EM OM NDUM OF LAW Comes Now Plaintiffrro se, John Pinson, and hereby files his Response to Defendant's M otion to Declare John Pinson a Vexatious Litigant and for Order to Post Bond and M emorandum of Law, and in support thereof states as follows: l . The instant action is the Grst Plaintiff has ever fsled in any District Court. 2. Defendant unjustly attempts to infringe upon Pinson's right of equal access to the Courts. 3. Plaintiff contends the Defendant and/or its Counsel filed the instant motion in bad faith, for improper purpose, and to delay the Court Ordered M ediation. 4. Further, Plaintiff contends the instant motion is retaliatory in nature, and Gled because of Plaintifrs continuous efforts to elicit the cooperation of Counsel M cHale to sim ply comply with this Court's Order Referring Case to Mediation (DE 451. Such efforts of Plaintiff's Response to Defendant's Motion to Declare John Pinson a Vexatious Litigant and for Order to Post Bond and Memorandum of Law Page 1 of 21 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 1 of 36 the Plaintiff are evidenced in his Response to Defendant's M otion to Continue M ediation (DE 581. BACKGROUND 5. This case arises out of Defendant Sprechman's violations of the Fair Debt Collection Practices Act CTDCPA''), Florida Consumer Protection Act CTCCPAD, and the Florida Unfair and Deceptive Trade Practices Act (ETUDTPA'), wherein Defendants çtattempted to employ the court in the perpetration of a fraud'' gDE 08 !381, Gfiled a frivolous lawsuit' (DE 08 $401, in the Ctp1/n/.p Court, in andfor Palm Beach County Florida Case No: 502011CC0077551 #, in an attempt to collect an alleged but non-existent debt, with M idland as the alleged Creditor and, wherein the Law Firm of Sprechman & Associates, P.A. was, in-fact, the undisclosed Real Party of lnterest. Through Admissions, in County Court, M idland admitted Rthat SPRECHM AN & ASSOCIATES, P.A. is the real party of interest-' (see gDE 08) Plaintifps First Amended Complaint Plaintiff's Exhibit: #010, Fact No. 14; and #013, No. 7). Plaintiff pro se, Pinson, defended him self pro se in the County Court action, wherein during a motions hearing, with Judge Deborah M oses Stevens presiding, Defendant and Sprechman attorney Linda E. Singer affirm ed to the Court the M idland adm ission Gthat SPRECHM AN & ASSOCIATES, P.A. is the real party of interest''. 8. The County Court action against Pinson was dismissed. Attorney Linda E. Singer departed from the Sprechman 1aw firm. STATEM ENT OF THE CASE 9. The instant case is the first case Plaintiffrm se, Pinson, has filed in any Federal District Court. Pinson did make diligent effort to study the F.R.C.P. and L.R. of this Court, along Plaintiff's Response to Defendant's Motion to Declare John Pinson a Vexatious Litigant and for Order to Post Bond and Memorandum of Law Page 2 of 21 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 2 of 36 with both Federal and State Consumer Protections Iaws prior to filing this action. Plaintiff filed his amended Complaint prior to responsive pleadings from Defendants. l0. On March 21, 2013, this Court entered its Order for Pre-trial Conference (DE 441 and Order Referring Case to Mediation gDE 451. 1 1. On April l 5, 20l 3, this Coul't entered a Show Cause Order (DE 47). 12. On April l 9, 2013, Plaintiff filed his Notice of Selection of a Mediator (DE 48J, and he filed his Notice of Compliance with the Court's show cause order (DE 491. 13. Thereafter Plaintiff attempted on multiple occasions to schedule mediation by phone and e- mail. 14. On M ay 3, 2013, M idland Counsel Springfield responded offering a date, but because Counsel M cl-lale did not respond to Plaintifps continued good faith efforts to elicit his cooperation in complying with the Orders of this Court, Plaintiff filed his Notice of Inability to Schedule Mediation gDE 511. 15. On June 3, 20l 3, Plaintiff mailed a letter to M cldale reminding him uwe need to complete mediation by September 16. 2013. to comply with the Court's Order Referring Case to Mediation rDE 451.'9 (Exhibit RA'). 16. Thereafter and through September 12, 2013, Plaintiff made continuous and multiple efforts to schedule Court Ordered M ediation, utilizing Telephone, e-mail, facsimile and the U.S. M ail, and was met with Counsel M cHale's lack of cooperation as detailed and evidenced in Plaintiff-'s Response to Defendant's M otion to Continue M ediation. l7. On September 9, 2013, in an e-mail M cl-lale threatened, çtwe will file a M otion for Summary Judgment this week and we will serve you with a Rule 1 1 Motion.' (Exhibit &%''). Plaintiff's Response to Defendant's Motion to Declare John Pinson a Vexatious Litigant and for Order to Post Bond and Memorandum of Law Page 3 of 21 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 3 of 36 l 8. On September 12, 20 13, M cl-lale sent Plaintiff an e-mail that threatened his ççclients intend to file a M otion to Deem you a vexatious litigator''. l9. Plaintiff responded Cç-l-he issue has been and remains M ediation; to attempt and settle this matter as Ordered by the Court.'' (Exhibit EûC''). STATEM ENT REGARDING INSTANT M OTION 20. In its M otion Defendant mischaracterizes allegations of abusive. deceptive and unfair debt collection oractices as Ctcollection of debts'' (DE 55 ! 11. Defendant erroneously alleges Plaintiff has tsled numerous lawsuits regarding E&collection of debts'', whereas Plaintiff has sled only four (4) lawsuits regarding abusive debt collection practices. 21. Further Defendant erroneously alleges Eteach gcollection of debtsl suit involves allegations that defendants impermissibly pulled Plaintifps credit report' (DE 55 ! 11, whereas only two (2) lawsuits contain allegations of abusive debt collection practices and impermissible credit pulls. 22. Of the two (2) lawsuits that contain allegations of abusive debt collection practices and impermissible credit pulls, one also contains allegations of Unfair and Deceptive Trade Practices that being the instant action against Defendant Sprechman. 23. Further, the other suit has settled and was dismissed before the 2649 conference. 24. Of the two suits that contain only i%collection of debts'' (DE 55 ! 1) claims, one (1) is pending pre-trial order, and in the other, service of all defendants has yet to be made. 25. Defendant alleges tûthe court dockets of prior suits ... reveals a pattern of vexatious litigation' (DE 55 ! 2), whereas this allegation is unfounded, casts aspersions upon, holds up to false light, and is defamation of Plaintifps character. Plaintiff's Response to Defendant's Motion to Declare John Pinson a Vexatious Litigant and for Order to Post Bond and Memorandum of Law Page 4 of 21 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 4 of 36 26. Plaintiff states more cases were filed in a short period of time because after careful study of consumer protections laws he had the realization of impending statute of limitations time constraints. 27. John Pinson appears as Plaintiff in 15 lawsuits: a. Three (3) for property damage', one in small claims Courq one in county civil Court, one in county circuit Court. b. Two (2) for abusive, deceptive and unfair debt collection practices', filed in District Court. One (1) fbr: abusive, deceptive and unfair debt collection practices; unfair and Deceptive Trade Practices; obtaining consumer's credit report with impermissible purpose, which is the instant case, filed in this District Court. d. One (1) for abusive, deceptive and unfair debt collection practices and obtaining consumer's credit report with imperm issible purpose; filed in small claims court. Eight (8) for obtaining consumer's credit report with impermissible purpose; all filed in small claims Court. 28. Disposition of the l 5 lawsuits'. a. 8 were settled and dism issed. l d and dismissed after appeal of summary judgment to the 1 1th circuit.b. l was sett e c. 1 has settled in part, and is pending in part. (the instant case). d. l has yet to receive pre-trial orders. e. l Defendants have yet to be served. 1 was removed from smatl claims court and denied in summary judgment. Plaintiff's Response to Defendant's Motion to Declare John Pinson a Vexatious Litigant and for Order to Post Bond and Memorandum of Law Page 5 of 21 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 5 of 36 g. 2 were removed from small claims courq denied in summary judgment, and after its two M otion's to the Court in both did Deny Defendants motion for Rule 1 1 sanctions finding Plaintiff did not engage in improper tactics and did have a reasonable factual basis for his filinas. 29. There is nothing inherently wrong with boilerplate complaints-provided that thepro se Plaintiff has conducted the appropriate inquiry under Rule l l to ensure there is a basis for his short and plain statement of the claim, even if the language is repetitive. F.R.C.P. Rule 8(a). Ofnote, the California Judicial Counsel has adopted form complaints in a number of areas to assist both counsel andpm se litigants. 30. None of Plaintifps cases have been found to be frivolous or unfounded by any Court. 31. Defendant has failed to show express findings that Plaintiff has filed frivolous lawsuits. 32. Defendant has failed to show express findings that Plaintiff has filed vexatious or harassing lawsuits. 33. Defendant has fàiled to show how or why the posting of a security bond is warranted by the circumstances ofthis case, or any case. 34. Defendant has failed to show any Rule relating to security for costs. 35. The Plaintiff does have an objective good faith expectation to prevail in al1 his actions, based on belief fbrmed after a reasonable inquiry, wherein he had a reasonable factual basis for his t-ilings. 36. The Constitution provides for equal access to the Courts. All litigants have a constitutional right to have their claims adjudicated according to the rule of precedent. 37. The right to t5le a lawsuitrm se is one of the most important rights under the constitution and laws. Plaintiff's Response to Defendant's Motion to Declare John Pinson a Vexatious Litigant and for Order to Post Bond and Memorandum of Law Page 6 of 21 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 6 of 36 38. Allegations of pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. 39. Defendant has failed to show how or where Plaintiff has caused needless expense to any party, or has posed as a burden to the Courts. 40. Plaintiff has never been sanctioned by any Court. 41 . Detbndant has failed to show how or why sanctions would be appropriate against Plaintiff. 42. There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights. 43. Defendant's instant m otion is baseless, frivolous, filed in bad faith and for improper purpose, with intent to delay justice, harass, hold up to false Iight, and defame tYepro se Plaintiff, and contrary to F.R.C.P. Rule 11 and the Fla. Bar Rules of Prof. Conduct Ièule 4-3.1. 44. The following is a list of cases filed in Small Claim s Court, Palm Beach County, Florida: a. Pinson, et. al. v. Florida Power t:t f lkht, case no..' 5020055C005900 MB b. Pinson v. Coliecto Inc., case no..' 5020125C004588 MB Removed to Fl. S.D. Court, case no..' 9:12-cv-80407-KLR c. Pinson v. Northland Group, lnc, case no..' 502012SC005011z%YXYM B d. Pinson v. M ènarch Recovery Atfpz;/ Inc, case no.. 5020125C005119 M B Removed to Fl. S.D. Court, case no..' 9.12-cv-80480-D M Appealed to the 1 1th Circuit Court of Appeals, case no.. 13-11620 e. Pinson v. Cavalry, case no..' 5020125(:005120.YYk15'rM 8 Pinson v. Protocol Recovery, case no..' 5020125C'005532.Y.Y.YXM8 g. Pinson v. Nationwlde Credit, case no.. 5020125C005784 MB Plaintim s Response to Defendant's Motion to Declm'e John Pinson a Vexatious Litigant and for Order to Post Bond and Memorandum of Law Page 7 of 21 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 7 of 36 h. Pinson v. Capital M anagement Services, case no. . 5020125C009987 M B Removed to Fl. S.D. Court, case no.. 9.12-c9-80732-K1,R Pinson v. United Recovery Systems, L P, case no.. 5020125C010020 M B Removed to F1. S.D. Court, case no.. 9:12-cv-80792-K 4M Pinson v. Zwicker t:o Associates, P.C., case no.. 5020125C021808 MB Removed to District Court, case no.. 9.l3-cv-80267-JIC 45. The following is a list of cases Filed in County Civil Court, Palm Beach County, Florida: a. Pinson v. State Farm M utual, case no.. 501992(/(/010497.Y.k-(3:VR8 46. The following is a iist of cases filed in Circuit Court, Palm Beach County, Florida: a. Pinson v. State Farm M utual, case no. : 501990(/-4014418.Y-,Y.4.N*AG 47. The following is a list of cases t5led in the U.S. District Court, Southern District of Florida'. a. Pinson v. M idland Funding L L C et. al., case no. : 9-12-cv-80675-WJZ b. Pinson v. Wagner (fr Hunt P.A. et. al., case no..' 9-12-cv-81158-KAM c. Pinson v. JpM organ Chase Bank N A. et al., case no.. 9.13-cv-80720-.V .%1 ARGUM ENT 48. Defendant states in Cctwo (2) cases ... the Court issuedjudgment againstrm se Plaintiff and included an amount for costs in the judgment'' (DE 55 ! 61. These were credit pull cases tiled in sm all claims Court and removed to District Court; Counsel M cllale's fst'm represented the respective Defendants: Capital M anagement Services and United Recovery Systems. 49. In both cases the Court issued an Order for Summary Judgment in favor of the Defendants. ln both cases Defendant filed a M otion for Rule l 1 Sanctions, and in both cases the Court Denied Defendant's M otion for Rule 1 1 Sanctions. Plaintitrs Response to Detkndant's Motion to Declare John Pinson a Vexatious Litigant and for Order to Post Bond and Memorandum of Law Page 8 of 21 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 8 of 36 50. In Pinson v. Capital M anagement Services, case no..' 9:12-cv-80732-KLR, the Court stated in its Report and Recommendation (DE 43, page 31: Notably, Defendant does not specify which of the three types of improper conduct Plaintiff allegedly engaged in, nor does Defendant offer any analysis in its motion as to why Rule 1 1 sanctions are appropriate against thispm se Plaintiff. Moreover, in Plaintiff's objection to this Court's Report and Recommendation on Det-endant's motion for summary judgment, he appears to set forth the good faith basis for his belief that the defendant had pulled his credit report for an impermissible purpose. (DE 33). Based on the foregoing, this Court finds that Rule 1 1 sanctions againstrro se Plaintiff are tlnwarranted. Defendant has failed to satisfy the burden of showing that Plaintiff engaged in imprcper tactics or did not have a reasonable factual basis 63:* h:s filings. ttrl'he fact that summary judgment was granted and that plaintiff was ultimately unable to establish aprimafacie case does not establish that sanctions are warranted.'' Andre v. CCB Credit Setws., Inc., 2010 W L 3222500, *2 (S.D. Fla. July 21 , 2010) report and recommendation adopted, 2010 WL 3222601 (S.D. Fla. Aug. 13, 2010). 51 . ln Pinson v. Cïnited Scct?vpry Systems L P, case no. . 9:12-c9-80792-K 4M , the Court stated in its Order Denying Motion for Sanctions (DE 36, pages 2,31: The determination of whether a reasonable inquiry into the facts has been made in a case will, of course, be dependent upon the particular facts and a district court may consider, among other things, the pro se status of a litigant. Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 875 (5th Cir. 1988). Allegations of pro se complaints are held to less stringent standards than formal pleadings drafted by lav/yers. Hzines v. Kerner, 404 U.S. 51 9, 520-21 (1972) (per curiam); Didie v. Hojs'es, 98,'8 F.2d 1 097, 1 1 05 (1 1 th Cir. l 993). Althotlgh the Court granted summary judgment in favor of Defendant, that fact, in anc! of itself, does not rnean that it is appropriate to levy sanctions against Plaintiff's Response to Defendant's Motion to Declare John Pinson a Vexatious Litigant and for Order to Post Bond and Memorandum of Law Pagz 9 of 2 1 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 9 of 36 Plaintiff. ln support of its motion, Defendant merely relies on the fact that it had a legal basis for taking the action it did, the same fact that entitled it to ajudgment on the merits of Plaintifps claim . Defendant, however, has not supported its motion with any evidence from which the Court can reasonably infer that Plaintiff did not have a belief fonned after a reasonably inquiry that his Complaint was well grouElded in fact. See, e.g., Baker v. Alderman, 158 F.3d 516, 524 (1 1th Cir. l 998) ('(t)he grant of summary judgment, in and of itself, does not mean that an action is frivolous or warrants the imposition of sanctions''l; f aborers L ocal 938 -Jt?/FJ/ Health dc Welfare Fr?z5,/ Fund v. B.R. Starnes Co. ofFlorida, 827 F.2d 1454, 1 458 (1 1th Cir.l 987) ('Rule 1 1 is intended to deter frivolous suits'). ln view of the foregoing, Defendant's M otion for Sanctions Pursuant to Rule 1 l IDE 32) is DENIED. 52. Defendant states &:Te dates pro se Plaintiff has failed to satisfy those two costs judgments against him'', and Plaintiff states as follows with regard to each: 53. ln Pinson v. Capital M anagement Services, case no.. 9:l2-cv-80732-KL R, Counsel for Defendant in his Declaration stated çç1 declare under penalty of perjury that ... A copy of this bill has been served by electronic service by e-mail to all parties.' gDE 39, pg. 2). 54. The pro se Piaintifr does not participate in CM /ECF and does not receive electronic service, and at no tim.a hasrrrp se Plaintiff waived service by mail as provided by F.R.C.P. Rule 5. Plaintiff did not receive Det-endant's M otion for Bill of Costs and therefor Plaintiff was denied the opportunity to object. Had the Plaintiff been properly served with the Motion, he would have filed his objection. 55. Based on the foregoing, Plaintifr did t-ile a M otion for Relief from Judgment under F.R.C.P. Rule 60(b) which has yet to be ruled on by the Court. Plaintif's Response to Defendant's Motion to Declare John Pinson a Vexatious Litigant and for Order to Post Bond and Memorandum of Law Page 10 of 21 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 10 of 36 56. ln Pinson v. United Recovery Systems, L P, case no.. 9.12-cv-80792-K4.%12 Counsel for Defendant in his Declaration stated Eçl declare under penalty of perjury that ... A copy of this bill has been served by electronic service by e-mail to a11 parties.' (DE 33, pg. 21. 57. Thepro se Plaintiff does not participate in CM /ECF and does not receive electronic service, and at no time hasprö se Plaintiff waived service by mail as provided by F.R.C.P. Rule 5. Plaintiff did not receive Defendant's M otion for Bill of Costs and therefor Plaintiff was denied the opportunity to object. Had the Plaintiff been properly served with the Motion, he would have filed his objection. 58. Based on the foregoing, on the foregoing, Plaintiff did file a M otion for Relief from Judgment under F.R.C.P. Rule 60(b) which has yet to be ruled upon by the Court. 59. ln both cases, Counsel did not serve the pro se Plaintiff with the M otion for Bill of Costs, denying the Piaintiff the opportunity to object to the motion, and in doing so did deny the pro se Plaintit-f due process. Excusable neglect must fail; a pattern em erges. Both cases had the same Counsel; the same Counsel as in the instant matter. 60. Defendant states :$7-0 date, pro se Plaintif has fàiled to satisfy those two costs judgments against him' (DE 55 j7j, whereas in both instances Plaintiff did file a Motion for Relief from Judgment under F.R.C.P. Rule 60(b). Further, Defendant states tYet, Plaintiff continues to file lawsuits and continues to pursue cases against a myriad of defendants.'' (DE 55 j'7j. 61. In Pinson v. Capital M anagement Services, case no. : 9.12-cv-80732-.K1,R, the Clerk of the Court signed the Bitl of Costs on April 8, 2013 (DE 4 11. Plaintiff was previously under the mistaken impression that the Bill of' Costs applied to the M otion for Rule 1 1 Sanctions, because the Rule 1 1 Motion states ççthis Court should: (a) Find Plaintiff liable for payment Plaintiff's Response to Detkndant's Motion to Declare John Pinson a Vexatious Litigant and for Order to Post Bond and Memorandum of Law Page 11 of 21 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 11 of 36 of a11 costs'' gDE 37 !4j, and that when the Motion for Rule l l Sanctions was denied no costs were due. Upon review of the tsle, and for aforementioned reasons, Plaintiff did tsle a Motion for Relief from Judgment under F.R.C.P. Rule 60(b). 62. Plaintiff has not filed any lawsuits since the Order on Bill of Costs entered on August 27, 20 l 3 in Pinson v. United Recovery Systems, L P, case no..' 9.12-cv-80792-K.4% and for aforem entioned reasons, Plaintiffdid file a M otion for Relief from Judgment under F.R.C.P. Rule 60(b). 63. Defkndant states Etvery atlegation made against the Defendants ksprechmanl relates solely to litigation activity relative to a collection action filed against Plaintiff.'' (DE 55 :9), whereas Piaintiff contends it does not, but is based on the fact that any s Motion to Declare John Pinson a Vexatious Litigant and for Order to Post Bond and Memorandum of Law Page 18 of21 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 18 of 36 83. 'Following the simple guide of rule 8(t) that all pleadings shall be so construed as to do substantial justice'... 'The federal rules reject the approach that pleading is a game of skill in which one m isstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.' The court also cited Rule 8(f) FRCP, which hoids that aiI pleadings shall be construed to do substantial justice. Conley v. Gibson, 355 L) .S. 4 i at 48 (1 957). 84. 'Aliegations such as those asserted by petitioner, however inartfully pleaded, are sufficient/'.. 'which we hoid to less stringent standards than formal pleadings drafted by lawyers.' Haines v. Kerner, 404 U.S. 5 l 9 (1 972). 85. 'Pleadings are intended to serve as a means ofarriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement ofthat end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a justjudgment.' Maty v. Grasselli Chemicai Cb., 303 U.S. 197 (1938). 86. lt was held that apro se compiaint requires a less stringent reading than one drafted by a lawyer per Justice Biack in Conley v. Gibson. Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA). X1. Dilatoa Practices 87. 'Due to s10th, inaaention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices.. the glaciai pace of m uch litigation breeds frustration with the Federal Courts and ultimately, disrespect for the IaNv.' Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982). Plaintiff's Response to Dctkndant's Motion to Declare John Pinson a Vexatious Litigant and for Order to Post Bond and Memorandum of Law Page 19 of 21 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 19 of 36 CONCLUSION 88. Thepr/ se Plaintiff, having addressed the issues raised by Defendant in the instant m otion, contends that Defendant's motion is baseless, frivolous, filed in bad faith and for improper purpose, with intent to delay justice, harass, hold up to false light and defame the pro se Plaintiff, and contrary to F.R.C.P. Rule 1 1 and the f l Bar Rules of Prof. Conduct Rule 4-3.1. 89. Plaintiff m ade continuous eftbrts to elicit the cooperation of Counsel M cl-lale to comply with the Court's Order Refèrring Case to Mediation gDE 451 as evidenced in Plaintifps Response to Defbndant's Motion to Continue Mediation (DE 581. Had Defendant simply cooperated and fotlowed the Courts Orders, the mediation would be complete and the scarce resources ofthe Court would not be wasted on this frivolous motion. W H EREFORE, Plaintiff respectfully requests this Honorable Court issue an order: Denying Defendant's M otion to Declare John Pinson a Vexatious Litigant and for Order to Post Bond; and take any action sua sponte it deems necessary and appropriate to address Defendant's and or Counsel's actions in this matter. Dated: September 1 7, 201 3 ae-N.sjf.'' ' K. j Respectfully/submltted, .. .. a' lj '..:' . ; -. '%A ' . ' '' ' ; f . .. ' % / . ,. ' ' Ms ' j .'e'. A . J '* '. $ .'. p . .s ' ,lqNwv ysj.s, . pea $:() ?l: .. A'?ItI-: . ) .-;:,-' (.v -.. %< John Pipsbn . .# . 526.-* estwood Road est Palm Beach, Florida 33401 561-329-2524 john@pinson.com> Plaintiffs Response to Defendant's Motion to Declare John Pinson a Vexatious l-itigant and for Order to Post Bond and Memorandum of Law Page 20 of 21 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 20 of 36 CERTIFICATE OF SERVICE The true and correct copy of the foregoing document is being served upon the below named parties via first class U.S. mail. ..& -s S1g ed September l7, 2013 % v 1' y ''à -. .e . ' .-J . . , . . . .) ) ..w. k-/1 '.> ' . R*'. à.v<# . .#' Talan pmekonv x . . ... ! jçi .. .-' j1 2 Service List C.J. M cHale, Jr., Esq. Golden & Scaz, PLLC 201 North Armenia Avenue Tampa, Florida 33609 Counsel of Record for the Defendants: Sprechman & Associates, P.A. Steven B. Sprechman Scott E. M odlin Linda E. Singer Plaintiff's Response to Detkndant's Motion to Declare John Pinson a Vexatious Litigant and for Order to Post Bond and Memorandum of Law Page 21 of 21 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 21 of 36 tiExhibit A '' Jolm Pinson v. M idland Fulding LLC, et a1. - CASE NO. 9:12-cv-80675-W JZ Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 22 of 36 John Pinson 526 W es- ood Road W est Palm Beach, Florida 33401 VIa &.& First clau Mail June 3, 2013 C.J. McHale, Jr. Golden & Scaz, PLLC 201 Nodh Armenia Avenue Tampa, Florida 33609 Re: Pinson v. Midland Funding LLC, et al Case No.: 9:12-cw80675-W JZ Dear Mr. McHale: Regarding the above captioned, last month l attempted to get a mediation date scheduled, via e-mail and phone, so as to be in complianœ with the Coud's Orders. On May 3, 2013 Mr. Springseld offered, by e-mail, one of the dates that I had proposed, that date being July 30. You did not reply to his proposal and I was constrained to file a Notice of Inability to Schedule Mediation (DE 44) with the Coud. Since Mr. Springseld and l have both shown Cexibility on scheduling dates , I am writing to you directly requesting vou to propose some dates in writing suitable for you and your client for the Court Ordered Mediation. It is my understanding that we need to complete mediation by September 16, 2013, to comply with the Court's Order Referring Case to Mediation IDE 451. Thanking you in advance for your prompt attention, I am Jp-.dt b ( ' Y rs Sincerely, ! w-' ' ,N 1 John inson Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 23 of 36 çiE xhibit B'' Jolm Pinson v. M idland Fulding LLC, et al. - CASE NO. 9:12-cv-80675-W JZ Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 24 of 36 John D Pinson From : Sent: To: Subjed: Charles McHale W ednesday, September 11, 2013 2:22 PM John D Pinson RE: Pinson v. Midland, et al John, I'm not providing you any legal advice what so ever. would get that impression. I sim ply do not understand where you Also, you did nothing to move tM s case along and/or schedG e M ediation. Other than an em ail from M ay of this year, you did not contact m e at all with regards to scheduling m ediation until September. I simply cannot attend m ediation this week. l wil be ftling a motion to extend time for mediation and will not note yottr objection to the Court. Chyrles J. M cHale, Esq. ( G çcyg GxcyjxOLDEN r .' '' ATTOR N E Y: AT I .b%%%' (813) 251-3688 (direct line) (813) 251-3675 (fax) Em ail: cm chalekàzszfirm -com From: John D Pinson (mailto:john pinson,com) sent: ednesday, September 11, 2013 2:17 PM To. Charles McHale Subje : RE; Pinson v. Midland, et al Impo nce. High Mr. McHale, Since when does counsel for the defendant provide Iegal advice to a pro se plaintiff? You may want to watch what you say. As to mediation, it is time to comply with the Court's Order, NOW ! !! l do not ascent to any extension of the deadline for the mediation for the simple reason that we are now at this stage because of your blatant and intentional refusal to cooperate in scheduling mediation. l have made continuous efforts to comply with the Court's Order since April, and you have steadfastly refused to cooperate in any manner. You need to make arrangements to comply with the order NOW , rather than at sometime in the future that you seek to push it out to. Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 25 of 36 l believe the Court will take a rather dim view of your activities in delaying the Court Ordered mediation should aI the evidence of such be placed before it. Please apprise as to when you with authority, or your clients, will be available for mediation this week. The time slot is scheduled for Thursday. Your continued delay is simply unacceptable. Yours truly, John Pinson 561-329-2524 iohn@ pinson.com From: Charles McHale (mailto'.cMcHale@nsqrlrm,com) Sent: Wednesday, September 11, 2013 11:50 AM To: John D Pinson Subjeu: RE: Pinson v. Midland, et al John, Please respond to m y client's request for dismissal of tM s case based upon Florida's litigation imm unity doctrine and the other reasons laid out in my prior em ail. I and my client would like to avoid having to seek summary judgment against you for yet another case. As to the m ediation, I'm looking at the scheduling report that we submitted to the court that gave a date of m ediation by Novem ber 7, 2013. I would advise that we ftle a m otion for extension of tim e to conduct mediation until mid- October. Charles J. M cllale, Esq. è GOLDEN SCAZ GAGAIN A1&TTIR N 1( Y.S AT l ANV (813) 251-3688 (direct line) (813) 251-3675 (fax) Em ail: cm chale@zszfirm -com From: John D Pinson Emailto-'lohn@pinson-com) Sent: Wednesday, September 11, 2013 11:43 AM To: Charles McHale Subjeu: RE: Pinson v. Midland, et al lmpo nce: High M r. M cHale, th iII 9 PM Tuesday evening the lotb 2013.M y internet was com pletely out from noon M onday the 9 yt , Thank you for your response, but you are quite mistaken in you statement that 'ttlhe mediation cut-of'f is not until Novem ber 7, 2013.' You m ay possibly have Iooked at the wrong document to come to that conclusion. 2 Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 26 of 36 l have attached a copy of the Court Order of Referral to Mediation (DE-45) where it clearly states that 'Etlhe mediation shall be completed no Iater than sixty (60) days prior to the pretrial conference', and we are 'set for pre-trial conference on November 15, 2013 at 9:30 a.m.' per the Court Order for Pre-trial Conference (DE- 44). Please see the highlighted area of the attached documents as evidence for what I have stated. It is imperative that this is addressed NOW ! ! ! l have been pursuing you for a mediation date since April, 20131 I expect to have and wil Iook for a response from you today. Your ful and imm ediate cooperation is most appreciated. Best regards, John Pinson 561-329-2524 iohn@pinson.com From: Charles McHale Emailtoa'cMcHale@nsnflrm.com) Sent: Monday, September 09, 2013 5:14 PM To: John D Pinson Subjeu: RE: Pinson v. Midland, et al M r. Pinson, M y client is not available to m ediate the case on September 12, 2013. The mediation cut-of is not until November 7, 2013. As such, my client would like a m ediation date are close to the cut- off date as possible. M oreovers m y chent respectfully requests that you dismiss the case against. Your claim s against Sprechm an and the attorney's at Sprechm an & Associates are baseless. First and forem ost, your Florida Consum er Collection Practices Act and Invasion of Privacy claims are pre-empted by the Florida Litigation Im m unity Doctrine. A11 the allegations contained in the am ended complaint are aimed at htigation activities that Sprechm an & Associates performed during its representation of M idland. Further, yom FDCPA is baseless as well for the following reasons: 1) You claim that Sprechman & Associates disclosed the debt to third parties - i.e. your m other and sister. However, you specG cally state that the process server was the person who allegedly did such. The process server is not an agent or anything of the like for Sprechm an & Associates. Rather such person was em ployed to serve a com plaint against you on behalf of M idland Funding LLC. a. Moreover, since the lawsuit was a matter of public Ithere was a suit lled againat you by M idland in state courtl there could be NO disclosure of a private fact, i.e. that you owed a debt. Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 27 of 36 2) Also, you state that Sprechman & Associates failed to provide the 1692g notice to you. First, this is not a correct statement of the law. M idland Srst contacted you with regards to this debt and provided the 1692g notice - i.e. 30 days to dispute the debt. Sprechm an & Associates was there referred the debt. Subsequent debt collectors are not reqxlieed under the FDCPA to provide another 1692g notice. However, nevertheless, Sprechm an & Associates did provide you the 1692g notice in its & st letter to you. 3) Thirdly, 11th Circuit case law clearly hold that service of a complaint signed by a law flrm is not a 'dinitial comm unication' that requires 1692g notice. 4) ln August 2012, Sprechman & Associates did provide you vG dation of the debt even though it w as under no obligation to do so. 5) Sprechman & Associates did not violate 1692g or 1692g(b) when it served any papers in court. First the 30 day validation notice must only be provided by the & st debt collector within 5 days of the initial com muG cation with you. As Sprechm an & Associates was not the A st/original creditor/debt collector it did not have to provide the 30 days notice, but none-the-less Sprechm an & Associates did, and Sprechman & Associates needs only to provide it once to you. Secondly, here, Sprechman & Associates did not violate 1692g(B) was a) it was under no obligation to validate yom. debt under the FDCPA and b) it provided validation to you. 6) Lastly, 1692e(11) speciscally exempts pleadings in court 1om its requirements. A11 other allegations contained in yom com plaint relate solely to M idland and/or the fM idland Defendants''. Since you've already settlement with them , you are not entitled to double recovery. Please review the instant em ail and provide me a response as to whether you are willing to dism iss the action against Sprechm an & Associates and the Sprechm an defendants. If not, we will be ftling a M otion for Sum m aa Judm ent tllis week and will be serving you with a Rule 11 M otion. Please advise. Thank you. Charles J. M cllale, Esq. : ' .' . . . . . ' .' . . ' ' ' ' ' ' .. . GOLDEN SCAZ GACAIN ,)4-,.-1-(-)k: >.7 ifzè; v !k ,:-1- I ., 'y>'k$;' (813) 251-3688 (direct line) (813) 251-3675 (fax) E m ail: cm chale@zslfirm -com From: John D Pinson (mal'to.'l'ohnapl'nson.com) Sent: Monday, September 09, 2013 10:30 AM To*. Charles McHale Subjeu: RE: Pinson v. Midland, et a'. Impo nce: High Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 28 of 36 Charles, l just tried to reach you by telephone again at 10:28 AM this morning to see if you have been able to reach your client yet about the mediation or have any update. Looking back at the e-mail, your client has never responded regarding mediation dates. Joh n From: Charles McHale (mailto'.cMcHalelgsgsrm.com) O nt: Friday, September 06, 2013 12:48 PM To: John D Pinson Subjee: RE: Pinson v. Midland, et al John, I am awaiting a response 1om my chent re: m ediation and will advise you of such as soon as I receive a response. Thanks. Charles J. M cllale, Esq. : GOLDEN S cAz GAGAIN.' y . . - y y j a.y.- j. ,yyjy. ' A 1 -1 ,t) R N 1q') 5 . .t , . (813) 251-3688 (direct line) (813) 251-3675 (fax) Em ail: cm chalet#zslflrm -com From: John D Pinson (mailto:iohnaninson.com) sent: Friday, September 06, 2013 10:58 AM To: Charles McHale Subjeck : Pinson v- Midland, et al Impo nce: High Charles, I just tried you again on the phone and was unable to reach you. I have not had a response from you. Please advise! Joh n From: John D Pinson (mailto-.l'ohnlnjnson-com) Sent: Thursday, September 05, 2013 4:35 PM To: Charles McHale Subj : : Pinson v. Midland, et al Impolo nce: High Charles, l just tried to reach you again on the phone at 4:08 with no Iuck! l did confirm a date and time for the mediation and sent that to you earlier today. The time is secured on hold with the mediators office. Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 29 of 36 Have you been able to reach Steve Sprechman yet? Before he engaged you, I had no problem reaching him at 305-521- 8801which he provided me. At that time we had an amicable conversation where he indicated he was the ultîmate decision maker for his office and his associates, and he desired a simple settlement. At that time I had yet to hear from Midland parties and it was too early. Now I have settled with the Midland parties. Yesterday l asked you to find out if your client be interested in discussing a reasonable settlement? Did you relay that message to him/them yet? 1 would like to discuss settiement with you but have been unable to reach you at 813-251-3688. Is there an alternative number that is better to reach you at? In review of the Judge's Order of Referral to Mediation, your clients do not have to attend the mediation if they authorize you to be able to settle. Are you available at the time and date below to attend the mediation? In an effort to stop wasting everyone's time and money let's have a settlement discussion and see if we can eliminate any further unnecessary expenditures going forward. l believe it would not be in the best interests of either of us to fail to comply with the Court's order of referral to Mediation, so let's get this done. John 561-329-2524 cel iohn@pinson.com From: John D Pinson Emailto:lohnapinson.com) Sent: Thursday, September 05, 2013 12:09 PM To: Charles McHale Subjeu: FW: Pinson v. Midland, et al Importance: High Charles, h S Imon can do 3:00 PM on the 12th in Miami.Jo n a Please advise. From: John D Pinson (mailto'aiohn@ninson.com) Sent: Wednesday, September 04, 2013 6:08 PM To: 'Charles McHale' Subjeu: RE: Pinson v. Midland, et al Charles, Not quite sure why you have not received messages, but thanks for responding. l wil reconfirm the exact times and Iocations available in the morning and will be back with you. W e had previously selected W PB but maybe FtL would be more convenient for your client. As you know I have settled with the other defendants. W ould you client be interested in discussing a reasonable settlement? Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 30 of 36 Joh n From: Charles McHale Emailto:cMcHalelgsgfirm.com) O nt: Wednesday, September 04, 2013 5:48 PM To: John D Pinson Subjeuk RE: Pinson v. Midland, et al John, I do not have a single voice m ail m essage 1om you regarding this case or any other case of yours in our oo ce. Have these dates been cleared with the M ediator? 1 am awaiting a response from my chent. Thanks Charles J. M cllale, Esq. GokpEx ScAz GAGAIN . . . . --'-' - gj-,) y.-yj gj , jy yjty jyy, .,jy,. j;yk y;rj, - jt- jy , . .,;jj, klqj,., AT (813) 251-3688 (direct line) (813) 251-3675 (fax) Em ail: cm chalet#MsMfilrm .com From: John D Pinson (pailto:l'ohnapinson.comq Sent: W ednesday, September 04, 2013 5.,27 PM To: Charles McHale Subjeu: FW: Pinson v. Midland, et aI lmpoltance: High Mr. Mchale, I have been unable to reach you on the telephone and you have not replied to my e-mails. W ill September 12 or 13th, 2013 work? W e could also do September 16? John From: John D Pinson (mailto'aiohn@pinson.com) Sent: Tuesday, September 03, 2013 9:31 PM To: 'Charles Mcliale' Subjeu: RE: Pinson v, Midland, et al I have had no response from you and have been unable to reach you by telephone. thW ill September 12 or 13 , 2013 worlt? Jo hn Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 31 of 36 From: Charles McHale Emailto:cMcHale@qsnfirm.com) Sent: Wednesday, May 01, 2013 7:17 PM To: John D Pinson; Springfield, Frank Subjeu: RE: Pinson v. Midland, et al Tuesday, July 23 does not work for me. I will contact my client and see if any/all of the rem aining dates works for them . PLEASE NOTE N EW FIRM NAM E AN D EM AIL ADD RESS Charles J. M cH ale, Esq. GOLDEN SCAZ GAGAIN , PLLC (813) 251-3688 (direct line) (813) 251-3675 (fax) Em ail: cm chale@zszfirm .com From: John D Pinson gm-qjlto:l'ohna. pinson.com) Sent: Wednesday, May 01, 2013 4.,37 PM To: Charles McHale; 'Springfieid, Frank' Subjeu: RE: Pinson v. N. 'lijland, et aI lm poennce: High M r. Mchale, W ould any of the following dates starting at 2 pm: Tuesday, July 23, 2012 Thursday, July 25, 2013 Monday, July 29, 2013 Tuesday, July 30, 2013 Please advise! John From: John D Pinson Emailto:john@pinson.comj Sent: Monday, April 29, 2013 2:52 PM To: 'Charles McHale',- 'Springfield, Frank' Subjec: RE: Pinson v. Midland, et al W hat are your vacation dates so we can reschedule. Thanksl From: Charles McHale Emailto'.cMcHale@qsnfirm.comq Sent: Monday, April 29, 2013 2.33 PM To: John D Pinson; Springfield, Frank Subject: RE: Pinson v. Midland, et al I'm not available on August 5. I will be out of vacation. Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 32 of 36 PLEASE N OTE NEW FIRM NAM E AND EM AIL ADDRESS Charles J. M cH ale, Esq. GOLDEN SCAZ GAGAIN , PLLC (813) 251-3688 (direct line) (813) 251-3675 (fax) Em ail: cm chale@zslfirm .com From: John D Pinson Emqjlto-'l'ohnlpinson.com) Sent: Monday, April 29, 2013 12:33 PM To: Springfield, Frank; Charles Mcliale Subjeu: Pinson v, Midla nd, et al Impolance: High Gentlemen, W e can mediate with John Salmon on August 5, 2013 at 2 PM at his W est Palm Beach location. Please advise! Thanks! John Pinson Case 9:12-cv-80675-WJZ Document 61 Entered on FLSD Docket 09/18/2013 Page 33 of 36 Thursday, September 12, 2013 5:34 PM 'Charles McHale' RE: Pinson v. Sprechman The issue has been and remains M ediation; to attempt and settle this matter as Ordered by the Court. I am simply trying to comply with the Orders issued by the Court, and have been trying to elicit your cooperation in doing the same. For the record, l do and wil oppose your motion. John Pinson 561-329-2524 iohn@ ninson.com From: Charles McHale (mal'lto.'cMcHale@nsqrlrm.com) Sent: Thursday, September 12, 2013 11:12 AM To: iohnaoinson.com Subject: Pinson V. Sprechman P.r. lnson> Please be advised that m y chents intend to ftle a M otion to Deem you a vexatious htigator and to require you to post a bond as the court deems St. The motion is premised upon three issues 1) the number of cases you've flle against a myriad of defendants asserting nearly identical claim s, 2) the fact that summary judm ent has been granted against you in at least 4 cases in Federal Court for the exact alegations against mukiple defendants, and 3) the fact that there are two costs judm ents entered against you which you have not satissed. Please allow this to serve as a good faith attem pt to resolve the issues prior to V ng our M otion. Please advise whether you consent or oppose our clients' motion. Thank you. Chyrles J. . . ' ; GgkpyN R yg GyG$jN' ' . ' . . . , ' ' ,. , j , j.y j swATTO N EN p . 201 N orth A rm enia Avenue Tam pa, Florida 33609 (813) 251-3688 (direct line) (813) 251-3675 (fax) M cH ale, Esq. 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