Fitzhenry v. First Impression Interactive, Inc.
| Mark Fitzhenry |
| First Impression Interactive, Inc., Jeffrey Giles and STVT-AAI Education, Inc. doing business as Ancora Education |
| 1:2021cv02345 |
| April 30, 2021 |
| US District Court for the Northern District of Illinois |
| Beth W Jantz |
| John Z Lee |
| Telephone Consumer Protection Act (TCPA) |
| 47 U.S.C. § 227 Restrictions of Use of Telephone Equipment |
| Both |
Docket Report
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| Filing 54 MINUTE entry before the Honorable Beth W. Jantz: Status hearing set for 04/07/22 #52 is stricken. The Court adopts the parties' proposed deadline of 06/30/22 to complete jurisdictional discovery #49 . The Court has reviewed Plaintiff's supplement #53 concerning Request Nos. 11 and 19 in the pending motion to compel #31 . But, given that Plaintiff has issued written discovery requests concerning the jurisdictional issue to Defendants and Defendants have until 04/20/22 to respond #49 , the Court defers addressing these requests until this written discovery has been exchanged and the parties have again met and conferred by phone or video in an effort to reach resolution on any jurisdictional discovery issues where possible and identify which areas of disagreement remain. A joint status report is now due 04/28/22, which should include an update on the progress of discovery, including whether a third-party subpoena and any depositions are anticipated, and an update on the parties' positions concerning Request Nos. 11 and 19, including whether these issues have been resolved by the new written discovery responses. The Court will set a further date following review of the joint status report. Mailed notice. (as, ) |
| Filing 53 RESPONSE by Plaintiff Mark Fitzhenry to text entry, #50 (Attachments: #1 Exhibit 1 -- Defendant's Responses to Discovery)(Paronich, Anthony) |
| Filing 52 MINUTE entry before the Honorable Beth W. Jantz: Telephonic status set for 4/7/2022 is reset to 4/7/2022 at 1:45 p.m. Time change only. Call in information to remain. Mailed notice. (as, ) |
| Filing 51 MINUTE entry before the Honorable Beth W. Jantz: Telephonic status set for 3/31/2022 is cancelled and reset to 4/7/2022 at 2:00 p.m. Call in information to remain. Mailed notice. (as, ) |
| Filing 50 MINUTE entry before the Honorable Beth W. Jantz: The Court has reviewed the parties' joint status report #49 . Plaintiff is given until 3/30/22 to supplement his motion to compel #31 with copies of the discovery requests and responses currently at issue, i.e., Request Nos. 11 and 19, and a short explanation of how they are jurisdictional in nature. Any further necessary dates will be set following review of this supplement. Mailed notice. (as, ) |
| Filing 49 STATUS Report (Joint) by STVT-AAI Education, Inc. (Holiday, Dawn) |
| Filing 48 MINUTE entry before the Honorable Beth W. Jantz: Given the District Judge's 3/16/22 order #47 , a joint status report is due by 3/24/22 setting out: (1) an agreed proposed jurisdictional discovery schedule, (2) the parties' positions on whether any of the discovery sought in the pending motion to compel #31 is jurisdictional discovery, and (3) if so, after another meet and confer by phone or video, identifying the specific requests still at issue. A telephonic status conference is set for 3/31/22 at 10:00 a.m. To join the status conference by phone, dial 888-273-3658 and enter access code 2217918. Mailed notice. (as, ) |
Filing 47
ORDER: Plaintiff Mark Fitzhenry ("Fitzhenry"), on behalf of himself and a putative class, brought this action against Defendants First Impression Interactive, Inc. ("First Impression"), Jeffrey Giles ("Giles"), and STVT-AAI Education, Inc. d/b/a Ancora Education ("Ancora"). According to Fitzhenry, First Impression, which was operated by Giles, placed pre-recorded telemarketing calls to Fitzhenry's cellular phone and to thousands of others to promote Ancora. He further claims that, in so doing, First Impression was acting at the direction of Ancora. Based on these allegations, Fitzhenry filed claims arising under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. 227 et seq., and the South Carolina Telephone Privacy Protection Act, S.C. CODE 37-21-10 et seq. Ancora has moved to dismiss for lack of personal jurisdiction. For the reasons provided below, Ancora's motion to dismiss #23 is denied without prejudice so that the parties may conduct limited jurisdictional discovery. Signed by the Honorable John Z. Lee on 3/16/22. [For further details see order].(ca, )
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| Filing 46 MINUTE entry before the Honorable John Z. Lee:The Court has reviewed the status report. The parties are directed to file another status report on 5/4/22. (ca, ) |
| Filing 45 STATUS Report by Mark Fitzhenry (Paronich, Anthony) |
| Filing 44 MINUTE entry before the Honorable Beth W. Jantz. In light of the District Judge's 12/27/21 order staying discovery until a ruling on the motion to dismiss, the telephonic status scheduled for 1/6/22 is stricken, and will be reset as necessary upon issuance of a ruling on the motion to dismiss. Mailed notice (lk, ) |
| Filing 43 MINUTE entry before the Honorable John Z. Lee:Motion to stay discovery until ruling on the motion to dismiss #42 is granted. (ca, ) |
| Filing 42 MOTION by Defendant STVT-AAI Education, Inc. to stay Discovery (Attachments: #1 Exhibit A, #2 Exhibit B-1, #3 Exhibit B-2, #4 Exhibit C, #5 Exhibit Attachment A, #6 Exhibit Attachment B)(Schooler, Lionel) |
| Filing 41 MINUTE entry before the Honorable John Z. Lee:The Court has reviewed the status report. The Court orders the parties to file a joint written status report by 3/4/22. The report, which shall be as concise as possible, shall set forth: (1) the current deadlines imposed by the Court and whether the matter has been referred to the Magistrate Judge in any fashion (e.g., for discovery supervision; for resolution of a motion; for settlement; etc.); (2) the progress of discovery, if discovery is ongoing; (3) the status of briefing on unresolved motions, if any; (4) whether the parties have engaged or are engaging in settlement discussions and the status of those discussions; (5) for cases without any future court dates, an agreed proposed schedule; (6) for cases that have future court dates and if the parties believe there is good cause to extend the current deadlines, a proposed amended schedule and the basis for the request; (7) a request for any agreed action that the Court can take without a hearing; (8) and whether the parties believe a telephonic hearing or in-person hearing is necessary within the next 60 days, and, if so, the issue(s) that warrants discussion and the parties' respective positions. (ca, ) |
| Filing 40 MINUTE entry before the Honorable Beth W. Jantz: At Plaintiff's request and by agreement of defense counsel, the telephone status set on 12/16/2021 is cancelled and reset to 1/06/2022 at 9:00 a.m. Call in information to remain. Mailed notice. (as, ) |
| Filing 39 MINUTE entry before the Honorable Beth W. Jantz: This case has been referred to the Magistrate Judge for discovery supervision including ruling on Plaintiff's motion to compel #38 , #31 . The motion to compel is taken under advisement, and the parties are directed to meet and confer in advance of the initial status hearing with the Magistrate Judge to identify which areas of disagreement remain. The parties are directed to review and comply with Magistrate Judge Jantz's Standing Order on Discovery Motions and Motions to Compel. Furthermore, regardless of the pendency of any motions to dismiss, the parties are directed to proceed with discovery unless and until they seek and are granted a stay of discovery from the District Judge. A telephonic initial status conference is set for 12/16/21 at 12:45 p.m. Central. The parties are directed to review and comply with Judge Jantz's standing order on Initial Status Conferences, available on the Court's website, and the parties should be prepared at the status to address the current status of discovery and any remaining discovery disputes stemming from the pending motion to compel. To join the status conference by phone, dial 888-273-3658 and enter access code 2217918. Members of the public and media will be able to call in to listen to this hearing as well. Mailed notice. (as, ) |
| Filing 38 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Beth W. Jantz for the purpose of holding proceedings related to: general discovery supervision and motion to compel #31 .(ca, ) |
| Filing 37 MINUTE entry before the Honorable John Z. Lee:Plaintiff's motion to compel #31 is referred to Magistrate Judge Jantz, including general discovery supervision. (ca, ) |
| Filing 36 STATUS Report Joint by Mark Fitzhenry (Kaufman, Avi) |
| Filing 35 REPLY by Mark Fitzhenry to response to motion, #34 , MOTION by Plaintiff Mark Fitzhenry to compel Discovery Responses and the Production of Documents from the Defendants Jeffrey Giles and First Impression Interactive, Inc. #31 (Paronich, Anthony) |
| Filing 34 RESPONSE by First Impression Interactive, Inc., Jeffrey Giles to MOTION by Plaintiff Mark Fitzhenry to compel Discovery Responses and the Production of Documents from the Defendants Jeffrey Giles and First Impression Interactive, Inc. #31 (Morrisroe, Michael) |
| Filing 33 NOTICE by First Impression Interactive, Inc., Jeffrey Giles Discovery Reponses (Morrisroe, Michael) |
| Filing 32 MINUTE entry before the Honorable John Z. Lee: Defendant's response to Plaintiff's motion to compel #31 due by 11/19/2021; defendant's reply due 11/30/2021. Mailed notice (cn). |
| Filing 31 MOTION by Plaintiff Mark Fitzhenry to compel Discovery Responses and the Production of Documents from the Defendants Jeffrey Giles and First Impression Interactive, Inc. (Attachments: #1 Exhibit 1 -- Plaintiff's First Set of Discovery to First Impression Interactive and Jeffrey Giles)(Paronich, Anthony) |
| Filing 30 REPLY by Defendant STVT-AAI Education, Inc. to motion to dismiss/lack of jurisdiction #23 (Attachments: #1 Exhibit A - Dockets, #2 Exhibit B - Fitzhenry v. ADT, #3 Exhibit C - Suppl Affidavit of M. Zawisky, #4 Exhibit D - Decl. of Jeff Giles)(Fowler, Jeffrey) |
| Filing 29 MINUTE entry before the Honorable John Z. Lee:Plaintiff filed a motion for entry of default as to Defendant Jeffrey Giles on 7/27/21, one day after Defendant's answer was due. Defendant filed his answer two days later, on 7/29/21. Because Defendant's three-day delay in answering the complaint was harmless, Plaintiff's motion for entry of default #14 is denied. See Mommaerts v. Hartford Life & Acc. Ins. Co., 472 F.3d 967, 968-69 (7th Cir. 2007). (ca, ) |
| Filing 28 MINUTE entry before the Honorable John Z. Lee:Defendant's reply brief in support of the motion to dismiss is due by 9/10/21. (ca, ) |
| Filing 27 RESPONSE by Mark Fitzhenryin Opposition to MOTION by Defendant STVT-AAI Education, Inc. to dismiss for lack of jurisdiction (personal) #23 (Paronich, Anthony) |
| Filing 26 ATTORNEY Appearance for Plaintiff Mark Fitzhenry by Juneitha S. Shambee (Shambee, Juneitha) |
| Filing 25 ATTORNEY Appearance for Plaintiff Mark Fitzhenry by Juneitha S. Shambee (Shambee, Juneitha) |
| Filing 24 MINUTE entry before the Honorable John Z. Lee: On 7/22/21, the Court informed Plaintiff that he must designate local counsel by 8/23/21 in accordance with Local Rule 83.25(b), and warned Plaintiff that the failure to do so may result in the dismissal of this case. Plaintiff has not designated local counsel, and the deadline has passed. If a plaintiff fails to comply with a court order, a court has the authority to enter a sua sponte order of dismissal. See Fed. R. Civ. P. 41(b); James v. McDonald's Corp., 417 F.3d 672, 681 (7th Cir. 2005) ("A district court has the authority under Federal Rule of Civil Procedure 41(b) to enter a sua sponte order of dismissal[.]"). Furthermore, Local Rule 83.15(b) provides that, if an attorney fails to designate local counsel by the deadline set by the Court, then "the documents filed by the attorney may be stricken by the court." Here, that includes the complaint. The Court will give Plaintiff one final chance, until 8/31/21, to designate local counsel. If Plaintiff fails to do so, this case will be dismissed without further warning. (ca, ) |
| Filing 23 MOTION by Defendant STVT-AAI Education, Inc. to dismiss for lack of jurisdiction (personal) (Attachments: #1 Affidavit A: Zawisky Affidavit)(Fowler, Jeffrey) |
| Filing 22 MINUTE entry before the Honorable John Z. Lee: Status hearing held on 8/11/21. Rule 26(a)(1) disclosure are to be exchanged by 9/20/21. Initial written discovery is due by 9/27/21; the deadline to amend the pleadings and join parties is 11/30/21; fact discovery shall close on 4/25/22. The Court orders the parties to file a joint written status report by 12/3/21. The report, which shall be as concise as possible, shall set forth: (1) the current deadlines imposed by the Court and whether the matter has been referred to the Magistrate Judge in any fashion (e.g., for discovery supervision; for resolution of a motion; for settlement; etc.); (2) the progress of discovery, if discovery is ongoing; (3) the status of briefing on unresolved motions, if any; (4) whether the parties have engaged or are engaging in settlement discussions and the status of those discussions; (5) for cases without any future court dates, an agreed proposed schedule; (6) for cases that have future court dates and if the parties believe there is good cause to extend the current deadlines, a proposed amended schedule and the basis for the request; (7) a request for any agreed action that the Court can take without a hearing; (8) and whether the parties believe a telephonic hearing or in-person hearing is necessary within the next 60 days, and, if so, the issue(s) that warrants discussion and the parties' respective positions. (ca, ) |
| Filing 21 MINUTE entry before the Honorable John Z. Lee: Motion to appear pro hac vice by Lionel Schooler #20 is granted. (ca, ) |
| Filing 20 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-18531597. (Schooler, Lionel) |
| Filing 19 Rule 26(f) Report for Mandatory Initial Discovery Pilot (MIDP) , filed by Plaintiff Mark Fitzhenry. (Paronich, Anthony) |
| Filing 18 ATTORNEY Appearance for Plaintiff Mark Fitzhenry by Avi Robert Kaufman (Kaufman, Avi) |
| Filing 17 MINUTE entry before the Honorable John Z. Lee: Status hearing set for 8/11/21 at 9:15 a.m. The call-in number is 888-273-3658 and the access code is 1637578. Counsel of record will receive a separate email at least 12 hours prior to the start of the telephonic hearing with instructions on how to join the call. All persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in court-imposed sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. All participants should review the Court's standing order regarding telephone conferences that is on Judge Lee's website, which can be found at: https://www.ilnd.uscourts.gov/judge-info.aspx?4Qf5zc8loCI5U7rfMP9DHw==. (ca, ) |
| Filing 16 ANSWER to amended complaint by First Impression Interactive, Inc., Jeffrey Giles(Morrisroe, Michael) |
| Filing 15 ATTORNEY Appearance for Defendants First Impression Interactive, Inc., Jeffrey Giles by Michael Joseph Morrisroe (Morrisroe, Michael) |
| Filing 14 MOTION by Plaintiff Mark Fitzhenry for entry of default against Jeffrey Giles (Paronich, Anthony) |
| Filing 13 MINUTE entry before the Honorable John Z. Lee: Defendant STVT-AAI Education, Inc., d/b/a Ancora Education's motion for an extension of time to answer or otherwise respond to Plaintiff's amended complaint, to and including 8/16/21 #12 is granted. (ca, ) |
| Filing 12 MOTION by Defendants First Impression Interactive, Inc., STVT-AAI Education, Inc. for extension of time to file answer regarding complaint #1 or Responsive Pleading (Unopposed Motion) (Fowler, Jeffrey) |
| Filing 11 ATTORNEY Appearance for Defendants First Impression Interactive, Inc., STVT-AAI Education, Inc. by Jeffrey S. Fowler (as Local Counsel) (Fowler, Jeffrey) |
| Filing 10 MINUTE entry before the Honorable John Z. Lee: Attorney Dawn Holiday's motion for leave to appear pro hac vice is granted; however, Northern District of Illinois Local Rule 83.15 states that a nonresident attorney "shall appear before this Court only upon having designated as local counsel a member of the bar of this Court having an office within this District." Neither STVT-AAI Education, Inc., nor Plaintiff, have designated local counsel. Pursuant to Local Rule 83.15(b), the Court orders the parties to retain local counsel and file a designation of local counsel by 8/23/21. Failure to do so may result in the dismissal of this case. (ca, ) |
| Filing 9 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-18479449. (Holiday, Dawn) |
| Filing 8 SUMMONS Returned Executed by Mark Fitzhenry as to Jeffrey Giles on 7/5/2021, answer due 7/26/2021. (Paronich, Anthony) |
| Filing 7 SUMMONS Returned Executed by Mark Fitzhenry as to STVT-AAI Education, Inc. d/b/a Ancora Education on 6/25/2021, answer due 7/16/2021. (Paronich, Anthony) |
| SUMMONS Issued as to Defendants Jeffrey Giles, STVT-AAI Education, Inc. (ng, ) |
| Filing 6 First AMENDED complaint by Mark Fitzhenry against First Impression Interactive, Inc., Jeffrey Giles, STVT-AAI Education, Inc. d/b/a Ancora Education (Paronich, Anthony) |
| Filing 5 MINUTE entry before the Honorable John Z. Lee: Status hearing held on 6/17/21. Plaintiff's amended complaint should be filed by 7/1/21. The parties are directed to file a joint initial status report by 8/4/21. The report should comply with the requirements for initial joint status reports set forth in the Initial Status Conference standing order, which can be found on the Court's website. Status hearing set for 8/11/21 at 9:30 a.m. The call-in number is 888-273-3658 and the access code is 1637578. Counsel of record will receive a separate email at least 12 hours prior to the start of the telephonic hearing with instructions on how to join the call. All persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in court-imposed sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. All participants should review the Court's standing order regarding telephone conferences that is on Judge Lee's website, which can be found at: https://www.ilnd.uscourts.gov/judge-info.aspx?4Qf5zc8loCI5U7rfMP9DHw==. (ca, ) |
| Filing 4 REPORT of Rule 26(f) Planning Meeting by Mark Fitzhenry (Paronich, Anthony) |
| Filing 3 SUMMONS Returned Executed by Mark Fitzhenry as to First Impression Interactive, Inc. on 5/6/2021, answer due 5/27/2021. (Paronich, Anthony) |
| Filing 2 MINUTE entry before the Honorable John Z. Lee: A Rule 16 initial status hearing is set for 6/17/21 at 9:15 a.m. The parties are directed to file a joint initial status report by 6/11/21. The report should comply with the requirements for initial joint status reports set forth in the Initial Status Conference standing order, which can be found on the Court's website. In light of the COVID-19 pandemic and the related General Orders, the Court finds that it is necessary to conduct the status hearing via telephone conference. The call-in number is 888-273-3658 and the access code is 1637578. Counsel of record will receive a separate email at least 12 hours prior to the start of the telephonic hearing with instructions on how to join the call. All persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in court-imposed sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. All participants should review the Court's standing order regarding telephone conferences that is on Judge Lee's website, which can be found at: https://www.ilnd.uscourts.gov/judge-info.aspx?4Qf5zc8loCI5U7rfMP9DHw==. (ca, ) |
| Filing 1 COMPLAINT filed by Mark Fitzhenry; Jury Demand. Filing fee $ 402, receipt number 0752-18197131. (Attachments: #1 Civil Cover Sheet)(Paronich, Anthony) |
| CASE ASSIGNED to the Honorable John Z. Lee. Designated as Magistrate Judge the Honorable Beth W. Jantz. Case assignment: Random assignment. (crl, ) |
| SUMMONS Issued as to Defendant First Impression Interactive, Inc. (acm, ) |
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