Swenson et al v. Mobilityless, LLC et al
Plaintiff: Gerald Shearon and Barbara Swenson
Defendant: Monica Smatko, Gabor Smatko, Mobilityless, LLC and John Does I-X
Case Number: 3:2019cv30168
Filed: December 23, 2019
Court: US District Court for the District of Massachusetts
Presiding Judge: Mark G Mastroianni
Referring Judge: Katherine A Robertson
Nature of Suit: Other Fraud
Cause of Action: 28:1332
Jury Demanded By: Plaintiff
Docket Report

This docket was last retrieved on September 15, 2020. A more recent docket listing may be available from PACER.

Date Filed Document Text
September 15, 2020 Filing 31 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting #30 Defendants' Assented to Motion for Extension of Time to File a Responsive Pleading to the First Amended Class Action Complaint. The Defendants' responses are due by September 30, 2020. A defendant should file either an answer or a Rule 12 motion, not both. See Fed. R. Civ. P. 12(a)(4), (b) (serving a motion under this rule alters these periods as follows:... if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the courts action; A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.); Barthelmes v. Kimberly-Clark Corp., No. 13-cv-30164-MGM, 2015 WL 1431156, at *1 n. 3, *11 n.1 (D. Mass. Mar. 27, 2015) (filing a motion to dismiss and an answer at the same time is technically improper); Beebe v. Williams College, 430 F. Supp. 2d 18, 21 (D. Mass. 2006); see also Tingley Sys., Inc. v. CSC Consulting, Inc., 152 F. Supp. 2d 95, 122 (D. Mass. 2001) (explaining that a motion to dismiss, even a partial one, stays the time period for filing an answer); Nat'l Cas. Co. v. OneBeacon Am. Ins. Co., No. 12-cv-11874-DJC, 2013 WL 3335022, at *6 (D. Mass. July 1, 2013) (same). (Lindsay, Maurice)
September 14, 2020 Filing 30 MOTION for Extension of Time to September 30, 2020 to File an Answer and/or Otherwise Respond to the Amended Complaint by Mobilityless, LLC, Gabor Smatko, Monica Smatko.(Choi, Chelsea)
September 2, 2020 Filing 29 AMENDED COMPLAINT against All Defendants, filed by Gerald Shearon, Barbara Swenson.(Deutsch, Adam)
August 13, 2020 Filing 28 MEMORANDUM in Support re #27 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Against Defendant Monica Smatko filed by Mobilityless, LLC, Gabor Smatko, Monica Smatko. (Choi, Chelsea)
August 13, 2020 Filing 27 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Against Defendant Monica Smatko by Mobilityless, LLC, Gabor Smatko, Monica Smatko.(Choi, Chelsea)
August 13, 2020 Filing 26 ANSWER to #1 Complaint, by Mobilityless, LLC, Gabor Smatko, Monica Smatko.(Choi, Chelsea)
August 13, 2020 Filing 25 NOTICE of Appearance by Chelsea K. Choi on behalf of John Does I-X, Mobilityless, LLC, Gabor Smatko, Monica Smatko (Choi, Chelsea)
July 30, 2020 Opinion or Order Filing 24 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered ALLOWING #22 Defendants' Assented to Motion to Set Aside the Entry of Default and for Additional Time to Answer or Otherwise Respond to Plaintiffs' Complaint; DENYING-AS-MOOT #18 Defendants' Motion to Dismiss; and DENYING-AS-MOOT #17 Plaintiffs' Motion for Leave to Obtain Discovery.Plaintiffs' counsel certified he attempted to serve Defendants through each of the seven alternative enumerated methods authorized by Magistrate Judge Robertson, in her May 12, 2020 Order responding to Plaintiffs' allegations that Defendants were evading service. (Dkt. No. 11.) These attempts included sending a copy of the summons, complaint, and the May 12 Order by certified mail to the Post Office Box and home address of Defendants. The certified mail was "refused" on May 26, 2020 and sent back. Plaintiffs' counsel also sent copies of the papers by regular first-class mail, which were not returned and presumed delivered. Based on indications that the last tracked delivery of the papers occurred on May 26, 2020, Plaintiffs' counsel contended that service was due by June 16, 2020. On June 19, 2020, Plaintiffs moved for entry of default based on Defendants' failure to answer or otherwise defend, which was granted. (Dkt. Nos. 12, 15.) On June 23, 2020, Plaintiffs filed a motion for leave to obtain discovery prior to seeking class certification and default judgment. (Dkt. No. 17.) The next day, Defendants filed a motion to dismiss (Dkt. No. 18) and an opposition to Plaintiffs' motion for discovery (Dkt. No. 19). On July 29, 2020, counsel for Defendants appeared in the case and filed an assented-to motion to set aside default and extend time to file an answer. (Dkt. No. 22.) Under Rule 55(c), the court may set aside an entry of default based on the "liberal" standard of "for good cause." Coon v. Grenier, 867 F.2d 73, 75-76 (1st Cir. 1989). Defendants argue that their failure to respond to the complaint was based upon "delayed efforts to retain a lawyer and a misunderstanding and/or belief with regard to whether they were properly served, and whether this court has jurisdiction over the claims and parties in this case." (D.'s Memo. 2-3, Dkt. No. 23.) The court notes there are some indications that Defendants perhaps "consciously sought to evade process" (Dkt. Nos. 6, 8, 11), but resolves the doubt in favor of Defendants, which is appropriate in the context of Rule 55(c). Coon, 867 F.2d at 76. It is appropriate particularly when an inordinate amount of time has not passed since the case was filed, id. at 77, and Defendants present various meritorious defenses (D's Memo. 3-6, Dkt. No. 23) that "plausibly suggest the existence of facts which, if proven at trial, would constitute a cognizable defense," id. at 76-77 ("actions should ordinarily be resolved on their merits"). Furthermore, Plaintiffs have assented to the motion. The court therefore allows Defendant's motion to set aside the entry of default (Dkt. No. 22). Defendants have 14 days from the date of this order (i.e., until August 13, 2020) to respond to the complaint. Because entry of default has been set aside and the deadline for a response to the complaint has been reset, the court denies as moot Plaintiffs' motion to obtain discovery (Dkt. No. 17) and denies as moot Defendants' untimely motion to dismiss (Dkt. No. 18). (Lindsay, Maurice)
July 29, 2020 Filing 23 MEMORANDUM in Support re #22 Assented to MOTION to Set Aside Default AND FOR ADDITIONAL TIME TO ANSWER OR OTHERWISE RESPOND TO PLAINTIFFS COMPLAINT filed by Mobilityless, LLC, Gabor Smatko, Monica Smatko. (Attachments: #1 Affidavit Affidavit of Gabor Smatko, #2 Affidavit Affidavit of Monica Smatko)(Morneau, Jeffrey)
July 29, 2020 Filing 22 Assented to MOTION to Set Aside Default and MOTION to Extend Time to File an Answer or Respond to the Complaint.
July 29, 2020 Filing 21 NOTICE of Appearance by Jeffrey S. Morneau on behalf of Mobilityless, LLC, Gabor Smatko, Monica Smatko (Morneau, Jeffrey)
July 1, 2020 Filing 20 Opposition re #17 First MOTION for Discovery leave to take discovery per Fed.R.Civ.P. 26(d)(1) filed by Mobilityless, LLC, Gabor Smatko, Monica Smatko. (Zamorski, Michael)
June 24, 2020 Filing 19 Opposition re #17 First MOTION for Discovery leave to take discovery per Fed.R.Civ.P. 26(d)(1) filed by Mobilityless, LLC, Gabor Smatko, Monica Smatko. (Attachments: #1 Exhibits) (Lindsay, Maurice)
June 24, 2020 Filing 18 MOTION to Dismiss by Gabor Smatko, Monica Smatko. (Attachments: #1 Exhibits)(Lindsay, Maurice)
June 23, 2020 Filing 17 First MOTION for Discovery leave to take discovery per Fed.R.Civ.P. 26(d)(1) by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit)(Deutsch, Adam)
June 23, 2020 Filing 16 ELECTRONIC NOTICE of Case RE-Assignment. Judge Mark G. Mastroianni assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Katherine A. Robertson. (Finn, Mary)
June 22, 2020 Filing 15 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting #12 Motion for Entry of Default. Notice of Default entered. (Finn, Mary)
June 22, 2020 Filing 14 Copy re #13 Notice: Clerk's Entry of Default, mailed to Gabor and Monica/Monika Smatko, 9236 N. Powdernorn drive, Fountai Hills, AZ 85268, P.O. Box 17927, Fountain Hills, AZ 85269 and Mobilityless, LLC 87 Mill Street, Springfield, MA 01108. on 6/22/2020. (Finn, Mary)
June 22, 2020 Filing 13 NOTICE: Clerk's ENTRY OF DEFAULT as to Mobilityless, LLC, Gabor Smatko, Monica Smatko entered; cc/Defendants at 9236 N Powderhorn Drive, Fountain Hills AS 85268 and P.O. Box 17927, Powderhorn, AZ 85269 and Mobilityless, LLC 87 Mill Street, Springfield, MA 01108. (Attachments: #1 Default Standing Order)(Finn, Mary)
June 19, 2020 Filing 12 First MOTION for Entry of Default against all Defendants by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit)(Deutsch, Adam)
May 27, 2020 Filing 11 AFFIDAVIT OF SERVICE Executed by Barbara Swenson, Gerald Shearon. Gabor Smatko served on 5/26/2020, answer due 6/16/2020; Monica Smatko served on 5/26/2020, answer due 6/16/2020. Acknowledgement filed by Barbara Swenson; Gerald Shearon. (Attachments: #1 Exhibit Certified Mail Receipt, #2 Exhibit PO Box Tracking, #3 Exhibit PO Box Mail Returned Refused, #4 Exhibit Home Tracking, #5 Exhibit Email Service, #6 Exhibit Rejected Email, #7 Exhibit Website Printout, #8 Exhibit Correspondence with Summons Complaint and May 12 Order)(Deutsch, Adam)
May 12, 2020 Filing 10 Magistrate Judge Katherine A. Robertson: ORDER entered granting the Plaintiffs' - #8 Motion to make Alternate Service of Process. The time for Plaintiffs to make service on Defendants is extended to 5/29/2020. Plaintiffs are authorized to serve all named Defendants by:1. Mailing the summons, complaint, and this Court Order via certified mail to the Fountain Hills, Arizona residence of Gabor and Monica Smatko: 2. Mailing the summons, complaint, and this court order via certified mail to the Smatkos post office box in Fountain Hills, Arizona;3. Emailing the summons, complaint, and this court order to the Mobilityless, LLC e-mail address operated by Gabor Smatko at support@mobility4less.com;4. Electronically delivering the summons, complaint, and this court order to telephone number 413-686-4965;5. Electronically delivering the summons, complaint, and this court order to telephone number 203-269-1778;6. Electronically delivering the summons, complaint, and this court order to telephone number 203-269-9372; and7. Electronically delivering the summons, complaint, and this court order to telephone number 203-694-4372. (Finn, Mary)
May 5, 2020 Filing 9 Second AFFIDAVIT of Adam Deutsch in Support re #8 First MOTION Alternative Service of Summons and Complaint re #1 Complaint, filed by Gerald Shearon, Barbara Swenson. (Deutsch, Adam)
April 22, 2020 Filing 8 First MOTION Alternative Service of Summons and Complaint re #1 Complaint, by Gerald Shearon, Barbara Swenson. (Attachments: #1 Text of Proposed Order Proposed Order, #2 Affidavit Certification of Counsel, #3 Exhibit Exhibit A CT AG Amended Complaint, #4 Exhibit Exhibit B CT AG Consent Order, #5 Exhibit Exhibit C Mobility Registration, #6 Exhibit Exhibit D Gabor Smatko Fax, #7 Exhibit Exhibit E Mobility change of agent, #8 Exhibit Exhibit F Affidavits of non-service CT, #9 Exhibit Exhibit G Certified Mail Receipts, #10 Exhibit Exhibit H USPS Tracking to Smatko, #11 Exhibit Exhibit I USPS Tracking to Mobility, #12 Exhibit Exhibit J Affidavits of non-service AZ, #13 Exhibit Exhibit K CT Land Records, #14 Exhibit Exhibit L Tree Union LLC registration)(Deutsch, Adam)
March 19, 2020 Filing 7 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Plaintiffs' #6 Motion for Extension of Time of Sixty (60) Days to Effect Service on Defendants Gabor Smatko and Monica Smatko. Service to be Effected by 5/19/2020. (Finn, Mary)
March 19, 2020 Filing 6 First MOTION for Extension of Time to 60 days from order to serve complaint by Gerald Shearon, Barbara Swenson. (Attachments: # 1 Affidavit Certification of Counsel)(Deutsch, Adam) (Additional attachment(s) added on 3/19/2020: #2 Certificatoin of Adam Deutsch, #3 Exhibit A) (Finn, Mary). Modified on 3/19/2020 to separate exhibit A from the certification of Adam Deutsch and add it as an attachment. (Finn, Mary).
January 29, 2020 Filing 4 AFFIDAVIT OF SERVICE Executed by Barbara Swenson, Gerald Shearon. Mobilityless, LLC served on 1/15/2020, answer due 2/5/2020. Acknowledgement filed by Barbara Swenson; Gerald Shearon. (Deutsch, Adam)
December 26, 2019 Filing 3 Summons Issued as to John Does I-X, Mobilityless, LLC, Gabor Smatko, Monica Smatko. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Lindsay, Maurice)
December 26, 2019 Filing 2 NOTICE of Case Assignment. Magistrate Judge Katherine A. Robertson assigned to case. Plaintiff's counsel, or defendant's counsel if this case was initiated by the filing of a Notice of Removal, are directed to the Notice and Procedures regarding Consent to Proceed before the Magistrate Judge which can be downloaded #here. These documents will be mailed to counsel not receiving notice electronically. Pursuant to General Order 09-3, until the Court receives for filing either a consent to the Magistrate Judge's jurisdiction or the reassignment of the case to a District Judge, the initial assignment of a civil case to the Magistrate Judge is a referral to the Magistrate Judge under 28 USC 636(b) for all pretrial non-dispositive matters and Report and Recommendations, but not for the Rule 16(b) scheduling conference. (Lindsay, Maurice)
December 23, 2019 Filing 1 COMPLAINT against All Defendants Filing fee: $ 400, receipt number 0101-8026851 (Fee Status: Filing Fee paid), filed by Gerald Shearon, Barbara Swenson. (Attachments: #1 Civil Cover Sheet, #2 Supplement Category Form)(Deutsch, Adam)

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Search for this case: Swenson et al v. Mobilityless, LLC et al
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Defendant: Monica Smatko
Represented By: Chelsea K. Choi
Represented By: Jeffrey S. Morneau
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Defendant: Gabor Smatko
Represented By: Chelsea K. Choi
Represented By: Jeffrey S. Morneau
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Defendant: Mobilityless, LLC
Represented By: Chelsea K. Choi
Represented By: Jeffrey S. Morneau
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Defendant: John Does I-X
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Plaintiff: Gerald Shearon
Represented By: Adam L. Deutsch
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Plaintiff: Barbara Swenson
Represented By: Adam L. Deutsch
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