Swenson et al v. Mobilityless, LLC et al
Plaintiff: Gerald Shearon and Barbara Swenson
Defendant: Monica Smatko, Gabor Smatko, Mobilityless, LLC, John Does I-X, Kevin Smatko, Fountainmoons, LLC, Tree Union, LLC, Mobilitytrend, LLC, Epizontech, LLC, Omegas Stores, LLC, Monica, LLC, Sunborrow, LLC, Poltec, LLC, Hillsunion, LLC, Mogavike2020, LLC, Lagoon Trees, LLC and Toprex, LLC
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 U.S.C. ยง 1332 Diversity-Fraud
Jury Demanded By: Plaintiff
Docket Report

This docket was last retrieved on August 7, 2023. A more recent docket listing may be available from PACER.

Date Filed Document Text
August 7, 2023 Filing 142 Judge Mark G. Mastroianni: ORDER entered adopting #141 Report and Recommendations. ORDER entered granting in part and denying in part #124 Motion for Attorney Fees. See Order for complete details. (Figueroa, Tamara)
July 21, 2023 Filing 141 Magistrate Judge Katherine A. Robertson: ORDER entered. REPORT AND RECOMMENDATION on Plaintiffs' #124 MOTION for Attorney Fees and Costs. Recommendation: Based on the court's review of the billing records and the parties' submissions, I recommend that the court award Plaintiffs a total of $113,892.05 in attorney's fees and costs. Objections to R&R due by 8/4/2023. (Rivera, Melissa)
March 8, 2023 Filing 140 Motions Taken Under Advisement: Plaintiff's #124 MOTION for Attorney Fees and Costs. (Rivera, Melissa)
March 8, 2023 Filing 139 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Motion Hearing by Video re Plaintiff's #124 MOTION for Attorney Fees and Costs held on 3/8/2023. Attorneys Present: Adam L. Deutsch, Jeffrey S. Morneau and Kathryn S. Crouss. Arguments heard. This matter is taken under advisement. R&R to issue. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to #https://forms.mad.uscourts.gov/Audio.html . For a transcript of this proceeding, contact the Clerk's office by email at mad_transcripts@mad.uscourts.gov.) (Rivera, Melissa)
February 7, 2023 Filing 138 Set/Reset Deadlines as to #124 First MOTION for Attorney Fees ATTY Fees and Costs Petition. Motion Hearing reset to 3/8/2023 11:00 AM in Remote Proceeding : Springfield before Magistrate Judge Katherine A. Robertson. (Finn, Mary)
February 7, 2023 Filing 137 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Defendants Assented to #136 Motion to Continue the 2/22/2023 Motion for Attorneys Fees and Costs Hearing. Hearing reset to 3/8/2023 at 11:00 A.M., REMOTE HEARING. This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the courtroom deputy of the session as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html.For questions regarding access to hearings, you may refer to the general orders and public notices of the Court available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov. (Finn, Mary)
February 7, 2023 Filing 136 Assented to MOTION to Continue Hearing on Plaintiffs' Motion for Attorney Fees and Costs by Mobilityless, LLC, Gabor Smatko, Monica Smatko.(Crouss, Kathryn)
February 2, 2023 Filing 135 ELECTRONIC NOTICE Setting Hearing on Plaintiff's #124 MOTION for Attorney Fees and Costs ISSUED: Motion Hearing set for 2/22/2023 at 11:00 AM in Remote Proceeding : Springfield before Magistrate Judge Katherine A. Robertson. If unavailable, counsel shall confer regarding availability, come up with three mutually agreed upon dates and so notify the Court for rescheduling.This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the courtroom deputy of the session as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html.For questions regarding access to hearings, you may refer to the general orders and public notices of the Court available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov. (Rivera, Melissa)
January 27, 2023 Filing 134 First REPLY to Response to #124 First MOTION for Attorney Fees ATTY Fees and Costs Petition filed by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit, #2 Exhibit, #3 Exhibit)(Deutsch, Adam)
January 17, 2023 Filing 133 Opposition re #124 First MOTION for Attorney Fees ATTY Fees and Costs Petition filed by Mobilityless, LLC, Gabor Smatko, Monica Smatko. (Attachments: #1 Exhibit Exhibit List, #2 Exhibit Exhibit A - Unrelated Time, #3 Exhibit Exhibit B - Unsuccessful Motion Time, #4 Exhibit Exhibit C - Pre-Litigation Time, #5 Exhibit Exhibit D - Administrative Time, #6 Exhibit Exhibit E - Excessive Time, #7 Exhibit Exhibit F - Inadequate Entry Time, #8 Exhibit Exhibit G - Block Billing Entry Time, #9 Exhibit Exhibit H - Subpoena Time, #10 Exhibit Exhibit I - Preparing Bank Statements, #11 Exhibit Exhibit J - Reviewing Bank Statements, #12 Exhibit Exhibit K -Internal Communications, #13 Exhibit Exhibit L - External Communications, #14 Exhibit Exhibit M - Murray Time, #15 Exhibit Exhibit N - Swanson Time, #16 Exhibit Exhibit O - McDonald Time, #17 Exhibit Exhibit P - McGovern Time, #18 Exhibit Exhibit Q - Lowey Time, #19 Exhibit Exhibit R - Cotnoir Time, #20 Exhibit Exhibit S - Bley Time, #21 Exhibit Exhibit T - Affidavit of Ryan O'Hara, #22 Exhibit Exibit U - Affidavit of James T. Donohue, #23 Exhibit Exhibit V - Swenson Deposition, #24 Exhibit Exhibit W - Kevin Smatko Deposition)(Crouss, Kathryn)
January 17, 2023 Filing 132 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered GRANTING the #131 Joint MOTION for Leave to File Memorandum in Excess of Twenty Pages in Opposition to Plaintiff's Motion for Attorney Fees and Costs and Leave to File a Reply and FINDING AS MOOT the #130 Joint MOTION for Leave to File Memorandum in Excess of Twenty Pages in Opposition to Plaintiff's Motion for Attorney Fees and Costs and Leave to File a Reply, in light of the subsequently filed motion; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Rivera, Melissa)
January 14, 2023 Filing 131 Joint MOTION for Leave to File Excess Pages in Opposition to Plaintiffs' Motion For Attorney Fees and Costs and For Leave to File a Reply by Mobilityless, LLC.(Morneau, Jeffrey)
January 14, 2023 Filing 130 Joint MOTION for Leave to File Excess Pages in Opposition to Plaintiffs' Motion For Attorney Fees and Costs and For Leave to File a Reply by Mobilityless, LLC.(Morneau, Jeffrey)
December 20, 2022 Filing 129 NOTICE of Appearance by Kathryn S. Crouss on behalf of Mobilityless, LLC, Gabor Smatko, Monica Smatko (Crouss, Kathryn)
December 20, 2022 Filing 128 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered. REFERRING MOTION #124 First Motion for Attorney Fees and Costs. Motion referred to Magistrate Judge Katherine A. Robertson. (Zamorski, Michael)
December 20, 2022 Filing 127 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting in part #125 Motion for Extension of Time to File an Opposition to Plaintiffs Motion for Fees and Costs. Defendants shall file their Opposition on or before January 17, 2023. (Zamorski, Michael)
December 19, 2022 Filing 126 First Opposition re #125 MOTION for Extension of Time to 1/23/2023 to File an Opposition to Plaintiffs' Motion for Fees and Costs filed by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit)(Deutsch, Adam)
December 16, 2022 Filing 125 MOTION for Extension of Time to 1/23/2023 to File an Opposition to Plaintiffs' Motion for Fees and Costs by Epizontech, LLC, Fountainmoons, LLC, Hillsunion, LLC, John Does I-X, Lagoon Trees, LLC, Mobilityless, LLC, Mobilitytrend, LLC, Mogavike2020, LLC, Monica, LLC, Omegas Stores, LLC, Poltec, LLC, Gabor Smatko, Kevin Smatko, Monica Smatko, Sunborrow, LLC, Toprex, LLC, Tree Union, LLC.(Choi, Chelsea)
December 9, 2022 Filing 124 First MOTION for Attorney Fees ATTY Fees and Costs Petition by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit Meet and Confer, #2 Affidavit Adam Deutsch Declaration, #3 Exhibit A Time Sheet, #4 Exhibit B Costs, #5 Exhibit C Attorney Fee Survey, #6 Affidavit Keith Lowey, #7 Affidavit Stuart Rossman, Esq., #8 Affidavit Daniel Blinn, Esq., #9 Affidavit Joel Feldman, Esq., #10 Affidavit Elizabeth Miller, Esq.)(Deutsch, Adam)
November 28, 2022 Filing 123 Judge Mark G. Mastroianni: ORDER entered. JUDGMENT (Zamorski, Michael)
November 28, 2022 Filing 122 Mark G. Mastroianni: ELECTRONIC ORDER entered directing the Clerk, pursuant to Fed. R. Civ. P. 68, to enter judgment for Plaintiffs Barbara Swenson and Gerald Shearon against all Defendants on all counts in accordance with the offer and acceptance of judgment filed on November 21, 2022 (Dkt. No. 121). Plaintiffs' motion for attorneys' fees and costs, if any, shall be filed within 30 days from the entry of Judgment.(Zamorski, Michael)
November 21, 2022 Filing 121 SETTLEMENT AGREEMENT Offer of Judgment and Acceptance thereof. Fee/cost petition to follow by Gerald Shearon, Barbara Swenson. (Attachments: #1 Exhibit Defendants Offer of Judgment, #2 Exhibit Plaintiffs' accept Offer of Judgment)(Deutsch, Adam)
October 27, 2022 Filing 120 ELECTRONIC NOTICE Canceling Hearing. The Case Management Conference set for 11/2/2022 at 2:00 PM before Magistrate Judge Katherine A. Robertson is hereby VACATED. (Rivera, Melissa)
October 24, 2022 Filing 119 Set/Reset Scheduling Order Deadlines: Non-Expert Discovery to be completed by 12/30/2022. Defendants' to Disclose its Experts by 12/2/2022. Expert Depositions to be completed by 3/10/2023. Plaintiff shall file any New Motion for Class Certification due by 4/28/2023. Responses due by 5/26/2023. Replies, if any, due by 6/9/2023. Motion Hearing set for 6/27/2023 11:00 AM in Hampden Courtroom (In person only) before Judge Mark G. Mastroianni. Dispositive Motions, if any, due by 4/28/2023. Oppositions due by 5/26/2023. Replies, if any, due by 6/9/2023. Motion Hearing set for 6/27/2023 at 11:00 A.M. in the Hampden Courtroom ( In person only ) before Judge Mark G. Mastroianni. (Finn, Mary)
October 24, 2022 Filing 118 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Parties' Joint #117 Motion for Extension of Deadlines and Amend the Scheduling Order. The deadline for completion of non-expert discovery is extended to December 30, 2022. The deadline for the defendant to disclose the identify of its expert(s) is extended to December 2, 2022. The deadline for completion of expert depositions is extended to March 10, 2023. Plaintiffs shall file any new motion for class certification on or before April 28, 2023. Defendants opposition shall be filed by May 26, 2023. A reply, if any, shall be filed by June 9, 2023. Dispositive motions, if any, shall be filed by no later than April 28, 2023. Oppositions thereto shall be filed by May 26, 2023. Replies, if any, shall be filed by June 9, 2023. There will be a hearing on any new motion for class certification and any dispositive motions on June 27, 2023 at 11:00 a.m. in person. (Finn, Mary)
October 21, 2022 Filing 117 Assented to MOTION for Extension of Time to 12/30/2022 to Complete Discovery by Gerald Shearon, Barbara Swenson.(Deutsch, Adam)
October 11, 2022 Filing 116 Judge Mark G. Mastroianni: ELECTRONIC ORDER denying without prejudice #60 Motion to Certify Class and #76 Motion for Injunctive Relief. Plaintiffs move to certify two classes under Federal Rule of Civil Procedure 23(b)(3). Proposed Class A would consist of (i) all persons within the United States who purchased merchandise from Mobilityless through its website (ii) from September 2018 to December 31, 2021. Proposed Class B would consist of (i) all persons within the United States who purchased merchandise from Mobilityless through its website, (ii) and received goods that were non-conforming to what was ordered, (iii) from September 2018 to December 31, 2021.To obtain class certification, Plaintiffs must demonstrate by a preponderance of the evidence that Rule 23(a)'s four prerequisitesnumerosity, commonality, typicality, and adequacyare satisfied. See In re Nexium Antitrust Litig., 777 F.3d 9, 18 (1st Cir. 2015). Where, as here, plaintiffs move to certify a class under Rule 23(b)(3), they must also establish that "questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." These rules "do[] not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). The court, in turn, must engage in a "rigorous analysis" to ensure these standards are met before certifying a class. Id.Defendants correctly point out proposed Class A is impermissibly overbroad. Proposed Class A is in no way connected to or limited by Defendants' alleged misconduct and inevitably includes innumerable uninjured customers. Indeed, any class member under this proposed definition could conceivably have made a purchase through Defendants' website and been satisfied with their purchase or otherwise been uninjured by the alleged misconduct. Under this definition, it is even possible that most of the class members did not sustain an injury. "The need to identify those individuals will predominate and render an adjudication unmanageable absent [common or unrebutted] evidence... or some other mechanism that can manageably remove uninjured persons from the class in a manner that protects the parties' rights." In re Asacol Antitrust Litig., 907 F.3d 42, 5354 (1st Cir. 2018). Plaintiffs have not and cannot establish otherwise. Certification of Class A is therefore inappropriate.Likewise, even assuming the Rule 23(a) requirements have been met, the court is not persuaded that Plaintiffs have satisfied Rule 23(b)(3)'s predominance requirement with respect to proposed Class B. Although more refined than Class A, Class B as crafted would similarly be plagued by individualized inquiries regarding injury and causation. Class B would also be overwhelmed by individual questions regarding whether a particular product was non-conforming and how it was non-conforming. Additionally, the court would need to evaluate how (if at all) each customer was fully or partially compensated, and how (if at all) their complaint was remedied or otherwise addressed (for example, via return, replacement, or exchange of a product or part). Such questions would predominate over common issues. Although Plaintiffs urge the court to consider the equities and historical context of this case, as alleged in the Third Amended Complaint and as evinced by Defendants' alleged concealment of assets and alleged failure to maintain or produce responsive records in discovery, the court is bound to consider only whether Plaintiffs have met their burden to establish class certification is appropriate under Rule 23. Given these individualized questions, the court concludes Plaintiffs have not done so at this time.Accordingly, Plaintiffs' #60 Motion to Certify Class is denied without prejudice to renew their request if further discovery so warrants and if Plaintiffs can sufficiently address these concerns as to Class B and/or define a narrower class. See In re New Motor Vehicles Can. Export Antitrust Litig., 522 F.3d 6, 2627 (1st Cir. 2008) ("Indeed, it is not uncommon to defer final decision on certifications pending completion of relevant discovery."); Bartok v. Hometown Am., LLC, No. 21-cv-10790, 2022 WL 970079, at *34 (D. Mass. Mar. 30, 2022) (denying class certification motion without prejudice to allow further discovery and "develop a fuller factual record to allow the Court to conduct a rigorous analysis into the Rule 23 requirements," including the individualized inquiries defendants contended defeated predominance); Fed. R. Civ. P. Advisory Committee Notes (explaining that the 2003 amendments to the Rule were meant to clarify that "[a] certain amount of discovery may be appropriate [before certification is decided] to illuminate issues bearing on certification" and that "[a] court that is not satisfied that the requirements of Rule 23 have been met should refuse certification until they have been met"). Discovery remains ongoing in this case and is currently consolidated for purposes of class and merits discovery. Whether discovery in this action should remain consolidated or be bifurcated is a pretrial management matter left to the sound discretion and judgment of the magistrate judge. See, e.g., Begley v. Windsor Surry Co., No. 17-cv-317, 2019 WL 10094424, at *1 (D.N.H. Dec. 23, 2019) (discussing bifurcated class and merits discovery).Because Plaintiffs' class certification motion must be denied at this juncture, Plaintiffs' Motion for Injunctive Relief must also fail. Plaintiffs seek attachment and/or injunctive relief against further disposition or transfer of Defendants' real properties in the amount of $1.5 million to cover class-wide damages. However, issuance of a preliminary injunction or attachment requires a showing of a likelihood of success on the merits. And "[i]n order to show a reasonable likelihood of recovering class-wide damages..., a plaintiff has to show a reasonable likelihood that a class will be certified." LaRock v. Mardis Gras Entertainment, Inc., No. 3:20-cv-10083, 2021 WL 2116260, at *7 (D. Mass. Jan. 25, 2021) (citing Erkan v. New England Compounding Pharmacy, Inc., Civ. Action Nos. 12-12052, 12-12066, 2012 WL 5896530, at *2 (D. Mass. Nov. 21, 2012)). For the reasons set forth above, Plaintiffs have not done so. Even if the court finds Plaintiffs will more likely than not prevail on their individual claims, they have not demonstrated the same with respect to their class-wide damages for $1.5 million, and Plaintiffs have provided the court with no mechanism or basis to randomly select one or more of Defendants' real properties to enjoin to cover their anticipated individual damages. Nor can they, as the value would disproportionately exceed any amount of Plaintiffs' individual recovery. While the court is sympathetic to Plaintiffs' well-founded concerns, the court cannot, on this record, subject $1.5 millions' worth of Defendants' properties to attachment and/or injunction absent a showing that Plaintiffs are likely to succeed on their class claims and, by extension, their request for class certification. Thus, Plaintiffs' #76 Motion for Injunctive Relief is denied without prejudice to later renewal. (Zamorski, Michael)
October 7, 2022 Filing 115 Opposition re #111 First MOTION for Sanctions against Defendants filed by Epizontech, LLC, Fountainmoons, LLC, Hillsunion, LLC, John Does I-X, Lagoon Trees, LLC, Mobilityless, LLC, Mobilitytrend, LLC, Mogavike2020, LLC, Monica, LLC, Omegas Stores, LLC, Poltec, LLC, Gabor Smatko, Kevin Smatko, Monica Smatko, Sunborrow, LLC, Toprex, LLC, Tree Union, LLC. (Attachments: #1 Exhibit E-mail communications, #2 Exhibit Draft language)(Choi, Chelsea)
October 5, 2022 Filing 113 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered, following hearing, denying in part and finding moot in part #103 Defendants' Motion for Protective Order Regarding Plaintiffs' Notices of Rule 30(b)(6) Depositions. For the reasons stated during the hearing, the court denies so much of the defendants' motion as seeks an order that the corporate defendants not be required to sit for Fed. R. Civ. P. 30(b)(6) depositions until such time as the court has ruled on the plaintiffs' pending motions for injunctive relief and class certification. As the request was framed by the defendants, granting this motion would require postponing the depositions of the individual defendants who will be the Rule 30(b)(6) deponents on behalf of each of the limited liability company defendants, in effect staying further discovery in this matter. The court treats the part of the defendants' motion that voiced objections to Rule 30(b)(6) matters of examination in the plaintiffs' Rule 30(b)(6) deposition notices as moot insomuch as the court conducted an extended discovery conference with the parties to narrow and clarify matters for examination in the notices that were objectionable. No fees or costs to either party. (Robertson, Katherine)
October 3, 2022 Filing 114 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Motion Hearing re Defendants' #103 MOTION for Protective Order Regarding Plaintiffs' Notice of Rule 30(b)(b) Depositions held on 10/3/2022. Attorneys Present: Adam L. Deutsch, Adam L. Deutsch and Chelsea K. Choi. Arguments heard on Defendants' #103 MOTION for Protective Order Regarding Plaintiffs' Notice of Rule 30(b)(b) Depositions. Rulings made. Order issued. See Dkt. No. 113. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to #https://www.mad.uscourts.gov/caseinfo/transcripts.htm#audio-recordings . For a transcript of this proceeding, contact Katelyn Coppola by email at mad_transcripts@mad.uscourts.gov.) (Rivera, Melissa)
October 3, 2022 Filing 112 Electronic Clerk's Notes for proceedings held before Judge Mark G. Mastroianni: Motion Hearing held on 10/3/2022. (Attorneys present: Atty Deutsch for Plaintiff, Atty Morneau, Atty Choi for Deft(s))Court hears arguments re: #60 First MOTION to Certify Class and #76 First MOTION for Injunctive Relief Court takes matter under advisement. A separate order shall issue. (Court Reporter: Leigh Gershowitz, email: leighjoeem@gmail.com.) (Rivera, Christina)
September 22, 2022 Filing 111 First MOTION for Sanctions against Defendants by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit Affidavit of Adam Deutsch, #2 Exhibit, #3 Exhibit, #4 Exhibit, #5 Exhibit, #6 Exhibit, #7 Exhibit, #8 Exhibit, #9 Exhibit, #10 Exhibit, #11 Exhibit, #12 Exhibit, #13 Exhibit, #14 Exhibit, #15 Exhibit, #16 Affidavit Affidavit of Donald Swenson)(Deutsch, Adam)
September 16, 2022 Filing 110 ELECTRONIC NOTICE Resetting Hearing on Motion #76 First MOTION for Injunctive Relief , #60 First MOTION to Certify Class : Motion Hearing set for 10/3/2022 03:00 PM in Hampden Courtroom (In person only) before Judge Mark G. Mastroianni. (Zamorski, Michael)
September 16, 2022 Filing 109 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered ALLOWING #107 Motion to Continue Hearing. The hearing on Plaintiffs' Motion for Class Certification (Dkt. No. 60) and First Motion for Injunctive Relief (Dkt. No. 76) is rescheduled to October 3, 2022 at 3:00 p.m. (Zamorski, Michael)
September 16, 2022 Filing 108 Letter/request (non-motion) from Plaintiff's Counsel . (Deutsch, Adam)
September 15, 2022 Filing 107 MOTION to Continue Hearing on Plaintiffs Motion for Class Certification (Dkt. No. 60) and First Motion for Injunctive Relief (Dkt. No. 76) to October 3, 2022 or as soon thereafter as counsel can be heard by Mobilityless, LLC, Gabor Smatko, Kevin Smatko, Monica Smatko.(Morneau, Jeffrey)
September 14, 2022 Filing 106 ELECTRONIC NOTICE Setting Hearing on Defendants' #103 MOTION for Protective Order Regarding Plaintiffs' Notice of Rule 30(b)(b) Depositions ISSUED: Motion Hearing set for 10/3/2022 at 11:00 AM in Remote Proceeding : Springfield before Magistrate Judge Katherine A. Robertson. If unavailable, counsel are to confer regarding availability, come up with three mutually agreed upon dates and so notify the Court for rescheduling.This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html. For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov. (Rivera, Melissa)
September 2, 2022 Filing 105 First Opposition re #103 MOTION for Protective Order filed by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit, #2 Exhibit Exhibit 1, #3 Exhibit Exhibit 2, #4 Exhibit Exhibit 3, #5 Exhibit Exhibit 4, #6 Exhibit Exhibit 5, #7 Exhibit Exhibit 6, #8 Exhibit Exhibit 7, #9 Exhibit Exhibit 8, #10 Exhibit Exhibit 9, #11 Exhibit Exhibit 10, #12 Exhibit Exhibit 11, #13 Exhibit Exhibit 12, #14 Exhibit Exhibit 13, #15 Exhibit Exhibit 14, #16 Exhibit Exhibit 15, #17 Exhibit Exhibit 16, #18 Exhibit Exhibit 17, #19 Exhibit Exhibit 18, #20 Exhibit Exhibit 19, #21 Exhibit Exhibit 20, #22 Exhibit Exhibit 21)(Deutsch, Adam)
August 19, 2022 Filing 104 MEMORANDUM in Support re #103 MOTION for Protective Order filed by Epizontech, LLC, Fountainmoons, LLC, Hillsunion, LLC, Lagoon Trees, LLC, Mobilityless, LLC, Mobilitytrend, LLC, Mogavike2020, LLC, Monica, LLC, Omegas Stores, LLC, Poltec, LLC, Gabor Smatko, Kevin Smatko, Monica Smatko, Sunborrow, LLC, Toprex, LLC, Tree Union, LLC. (Attachments: #1 Exhibit 30(b)(6) Notices of Deposition)(Choi, Chelsea)
August 19, 2022 Filing 103 MOTION for Protective Order by Epizontech, LLC, Fountainmoons, LLC, Hillsunion, LLC, Lagoon Trees, LLC, Mobilityless, LLC, Mobilitytrend, LLC, Mogavike2020, LLC, Monica, LLC, Omegas Stores, LLC, Poltec, LLC, Gabor Smatko, Kevin Smatko, Monica Smatko, Sunborrow, LLC, Toprex, LLC, Tree Union, LLC.(Choi, Chelsea)
August 15, 2022 Filing 102 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered scheduling a hearing on Plaintiffs' Motion for Class Certification (Dkt. No. 60) and First Motion for Injunctive Relief (Dkt. No. 76) on September 23, 2022 at 2:00 p.m..( Motion Hearing set for 9/23/2022 02:00 PM in Hampden Courtroom (In person only) before Judge Mark G. Mastroianni.)(Zamorski, Michael)
August 10, 2022 Filing 101 Set/Reset Scheduling Order Deadlines: Non-Expert Discovery to be completed by 10/28/2022. Set/Reset Hearings:This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: #https://forms.mad.uscourts.gov/courtlist.html. For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on #www.mad.uscourts.gov or contact media@mad.uscourts.gov.Case Management Conference reset for 11/2/2022 02:00 PM in Remote Proceeding : Springfield before Magistrate Judge Katherine A. Robertson. Defendant to identify its Expert by 8/30/2022. Parties shall exchange Expert Reports by no later than 12/30/2022. Expert Depositions to be completed by 1/30/2023. Dispositive Motions, if any, due by 2/28/2023. Responses due by 3/28/2023. Replies, if any, due by 4/11/2023. (Finn, Mary)
August 10, 2022 Filing 100 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Parties' Joint #99 Motion to extend deadlines and amend the scheduling order. The deadline for completion of non-expert discovery is extended to October 28, 2022. The case management conference is continued to November 2, 2022 at 2:00 p.m. (remotely). The deadline for Defendant to identify its expert is extended to August 30, 2022. The parties shall exchange expert reports by no later than December 30, 2022. The deadline for completion of expert depositions is extended to January 30, 2023. The deadline for the filing of dispositive motions, if any, Is extended to February 28, 2023. The deadline for the filing of oppositions thereto is extended to March 28, 2023. Replies, if any, to be filed by April 11, 2023. (Finn, Mary)
August 9, 2022 Filing 99 Second MOTION for Extension of Time to 10/28/2022 to Complete Discovery by Epizontech, LLC, Fountainmoons, LLC, Hillsunion, LLC, John Does I-X, Lagoon Trees, LLC, Mobilityless, LLC, Mobilitytrend, LLC, Mogavike2020, LLC, Monica, LLC, Omegas Stores, LLC, Poltec, LLC, Gabor Smatko, Kevin Smatko, Monica Smatko, Sunborrow, LLC, Toprex, LLC, Tree Union, LLC.(Choi, Chelsea)
July 12, 2022 Filing 98 ANSWER to #79 Amended Complaint by Tree Union, LLC.(Choi, Chelsea)
July 12, 2022 Filing 97 ANSWER to #79 Amended Complaint by Toprex, LLC.(Choi, Chelsea)
July 12, 2022 Filing 96 ANSWER to #79 Amended Complaint by Sunborrow, LLC.(Choi, Chelsea)
July 12, 2022 Filing 95 ANSWER to #79 Amended Complaint by Monica Smatko.(Choi, Chelsea)
July 12, 2022 Filing 94 ANSWER to #79 Amended Complaint by Kevin Smatko.(Choi, Chelsea)
July 12, 2022 Filing 93 ANSWER to #79 Amended Complaint by Gabor Smatko.(Choi, Chelsea)
July 12, 2022 Filing 92 ANSWER to #79 Amended Complaint by Poltec, LLC.(Choi, Chelsea)
July 12, 2022 Filing 91 ANSWER to #79 Amended Complaint by Omegas Stores, LLC.(Choi, Chelsea)
July 12, 2022 Filing 90 ANSWER to #79 Amended Complaint by Monica, LLC.(Choi, Chelsea)
July 12, 2022 Filing 89 ANSWER to #79 Amended Complaint by Mogavike2020, LLC.(Choi, Chelsea)
July 12, 2022 Filing 88 ANSWER to #79 Amended Complaint by Mobilitytrend, LLC.(Choi, Chelsea)
July 12, 2022 Filing 87 ANSWER to #79 Amended Complaint by Mobilityless, LLC.(Choi, Chelsea)
July 12, 2022 Filing 86 ANSWER to #79 Amended Complaint by Lagoon Trees, LLC.(Choi, Chelsea)
July 12, 2022 Filing 85 ANSWER to #79 Amended Complaint by Hillsunion, LLC.(Choi, Chelsea)
July 12, 2022 Filing 84 ANSWER to #79 Amended Complaint by Fountainmoons, LLC.(Choi, Chelsea)
July 12, 2022 Filing 83 ANSWER to #79 Amended Complaint by Epizontech, LLC.(Choi, Chelsea)
June 30, 2022 Filing 82 Summons Issued as to Toprex, LLC. 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. (Finn, Mary)
June 30, 2022 Filing 81 Summons Issued as to Hillsunion, LLC, Lagoon Trees, LLC, Mogavike2020, LLC, Poltec, LLC, Sunborrow, LLC. 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. (Finn, Mary)
June 29, 2022 Filing 80 Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered re: Plaintiffs' #54 Motion to Compel Discovery. Plaintiffs Motion to Compel Discovery (Dkt. No. 54) is GRANTED on the terms set forth herein. Defendants will serve the supplemental responses required by this Memorandum and Order by no later than July 22, 2022, unless the parties mutually agree to a different date. Plaintiffs request for fees and costs is denied. It is so ordered. (See Memorandum and Order for complete details) (Finn, Mary)
June 28, 2022 Filing 79 AMENDED COMPLAINT Third per ECF 78 against All Defendants, filed by Gerald Shearon, Barbara Swenson.(Deutsch, Adam)
June 28, 2022 Filing 78 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Plaintiffs' #72 Motion for Leave to file a Third Amended Complaint in the absence of any timely filed opposition. Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Finn, Mary)
June 23, 2022 Filing 77 Opposition re #76 First MOTION for Injunctive Relief filed by Epizontech, LLC, Fountainmoons, LLC, Mobilityless, LLC, Mobilitytrend, LLC, Monica, LLC, Omegas Stores, LLC, Gabor Smatko, Kevin Smatko, Monica Smatko, Tree Union, LLC. (Attachments: #1 Affidavit Gabor Smatko, #2 Affidavit Gabor Smatko, #3 Affidavit Gabor Smatko)(Choi, Chelsea)
June 9, 2022 Filing 76 First MOTION for Injunctive Relief by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit, #2 Affidavit, #3 Exhibit, #4 Exhibit, #5 Exhibit, #6 Exhibit, #7 Exhibit, #8 Exhibit, #9 Exhibit, #10 Exhibit, #11 Exhibit, #12 Exhibit, #13 Exhibit, #14 Exhibit, #15 Exhibit, #16 Exhibit, #17 Exhibit, #18 Exhibit, #19 Exhibit, #20 Exhibit, #21 Exhibit, #22 Exhibit, #23 Exhibit, #24 Exhibit, #25 Exhibit, #26 Exhibit, #27 Exhibit, #28 Exhibit, #29 Exhibit, #30 Exhibit, #31 Exhibit, #32 Exhibit, #33 Exhibit, #34 Exhibit, #35 Exhibit, #36 Exhibit, #37 Exhibit, #38 Exhibit, #39 Exhibit)(Deutsch, Adam)
May 23, 2022 Filing 75 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Defendants' Assented to #74 Motion for Extension of Time to 7/5/2022 to file a responsive pleading to the Second Amended Complaint. (Finn, Mary)
May 23, 2022 Filing 74 Assented to MOTION for Extension of Time to July 5, 2022 to File a Responsive Pleading by Mobilityless, LLC, Gabor Smatko, Monica Smatko.(Choi, Chelsea)
May 6, 2022 Filing 73 Opposition re #60 First MOTION to Certify Class filed by Mobilityless, LLC, Gabor Smatko, Monica Smatko. (Choi, Chelsea)
May 2, 2022 Filing 72 Third MOTION to Amend #69 Amended Complaint, 70 Electronic Endorsement (non-order),, by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit)(Deutsch, Adam)
April 29, 2022 Filing 71 Magistrate Judge Katherine A. Robertson: ELECTRONIC ENDORSED ORDER entered striking the #69 Third Amended Complaint. (Finn, Mary)
April 29, 2022 Filing 70 Magistrate Judge Katherine A. Robertson: ELECTRONIC ENDORSED ORDER re #69 Third Amended Complaint filed by Gerald Shearon, Barbara Swenson. Plaintiffs are directed to file a motion, assented-to if appropriate, for leave to file a third amended complaint. Under Federal Rule of Civil Procedure 15(a)(1) and (2), plaintiffs are not entitled to file a third amended complaint as of right at this stage of the litigation. (Finn, Mary) Modified on 4/29/2022 to add the word - Third - to the entry. (Finn, Mary).
April 28, 2022 Filing 69 AMENDED COMPLAINT Third against All Defendants, filed by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit)(Deutsch, Adam)
April 12, 2022 Filing 68 Electronic Clerk's Notes for proceedings held before Magistrate Judge Katherine A. Robertson: Motion Hearing held on 4/12/2022 re Plaintiff's #54 MOTION to Compel Discovery and #61 JOINT MOTION to Extend Deadlines and Amend the Scheduling Order. Attorneys Present: Adam L. Deutsch and Jeffrey S. Morneau. Arguments heard on the motion to compel. Order to issue. The Joint Motion was ALLOWED. Further schedule established. See ECF No. 65. (Court Reporter: Digital Recording. To order a copy of this Digital Recording, please go to #https://www.mad.uscourts.gov/caseinfo/transcripts.htm#audio-recordings . For a transcript of this proceeding, contact Katelyn Coppola by email at mad_transcripts@mad.uscourts.gov.) (Rivera, Melissa)
April 12, 2022 Filing 67 Set/Reset Deadlines as to Replies, if any re: Dispositive Motions due by 2/14/2023. (Finn, Mary)
April 12, 2022 Filing 66 Set/Reset Scheduling Order Deadlines: Non-expert Discovery to be completed by 8/31/2022. Case Management Conference set for 9/7/2022 02:00 PM in Hampshire Courtroom (In person only) before Magistrate Judge Katherine A. Robertson. Defendants' to identify their Experts by 6/30/2022. Parties to exchange Expert Reports by 10/31/2022. Expert Depositions to be completed by 12/18/2022. Dispositive Motions, if any, due by 12/30/2022. Responses due by 1/31/2023, Replies, if any, due by 2/14/2023. (Finn, Mary)
April 12, 2022 Filing 65 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Parties' Joint #61 Motion for Extension of Deadlines and Amend the Scheduling Order as follows: Non-expert Discovery is extended to 8/31/2022. There will be a Case Management Conference on 9/7/2022 at 2:00 p.m. (in person). Defendants will identify their Experts by 6/30/2022. The Parties will exchange Expert Reports by 10/31/2022. The deadline for completion of Expert Depositions is 12/18/2022. The deadline for filing Dispositive Motions, if any, is extended to 12/30/2022. The deadline for Oppositions to Dispositive Motions is extended to 1/31/2023. Replies, if any, shall be filed by 2/14/2023. (Finn, Mary)
April 12, 2022 Filing 64 Summons Issued as to Epizontech, LLC, Fountainmoons, LLC, Mobilitytrend, LLC, Monica, LLC, Omegas Stores, LLC, Kevin Smatko, Tree Union, LLC. 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. (Finn, Mary)
April 12, 2022 Filing 63 SECOND AMENDED COMPLAINT Second against All Defendants, filed by Gerald Shearon, Barbara Swenson.(Deutsch, Adam) Modified on 4/12/2022 to add the word SECOND to the text. (Finn, Mary).
April 11, 2022 Filing 62 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Plaintiff's #53 Motion for Leave to File a Second Amended Complaint in the absence of any timely filed opposition. Counsel using the Electronic Case Filing System should now file the document (Second Amended Complaint) for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Finn, Mary)
April 11, 2022 Filing 61 First MOTION for Extension of Time to Fact disc to 8-31-2022 to Complete Discovery by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit LCR 7.1)(Deutsch, Adam)
April 5, 2022 Filing 60 First MOTION to Certify Class by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit, #2 Affidavit, #3 Exhibit, #4 Exhibit, #5 Exhibit, #6 Exhibit, #7 Exhibit)(Deutsch, Adam)
March 2, 2022 Filing 59 ELECTRONIC NOTICE Setting Hearing on Plaintiff's #53 MOTION for Leave to File a Second Amended Complaint and Plaintiff's #54 MOTION to Compel Discovery ISSUED: A Motion Hearing is set for 4/12/2022 at 11:00 AM in Hampshire Courtroom (IN PERSON) before Magistrate Judge Katherine A. Robertson. If unavailable, counsel are to confer regarding availability, come up with three mutually agreed upon dates and so notify the Court for rescheduling. (Rivera, Melissa)
February 25, 2022 Filing 58 Opposition re #54 First MOTION to Compel Discovery filed by Mobilityless, LLC, Gabor Smatko. (Attachments: #1 Exhibit E-mails, #2 Affidavit Gabor Smatko Affidavit)(Choi, Chelsea)
February 22, 2022 Filing 57 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting Defendants' Gabor Smatko and Mobilityless, LLC's Assented to #55 Motion for Extension of Time to File Response/Reply re #54 First MOTION to Compel Discovery. Defendants' Gabor Smatko and Mobilityless, LLC's response due by 2/25/2022. (Finn, Mary)
February 18, 2022 Filing 56 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered. REFERRING CASE to Magistrate Judge Katherine A. Robertson Referred for: Full Pretrial, No Dispositive Motions (ptn). Motions referred: #53 Second MOTION to Amend the pleadings, #54 First MOTION to Compel Discovery, #55 Assented to MOTION for Extension of Time to February 25, 2022 to File an Opposition to Plaintiffs' Motion to Compel . (Zamorski, Michael) Motions referred to Katherine A. Robertson.
February 17, 2022 Filing 55 Assented to MOTION for Extension of Time to February 25, 2022 to File an Opposition to Plaintiffs' Motion to Compel by Mobilityless, LLC, Gabor Smatko.(Choi, Chelsea) Modified on 2/22/2022 to change the relief type of the motion to MOTION to Extend to file Response/Reply. (Finn, Mary).
February 4, 2022 Filing 54 First MOTION to Compel Discovery by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit, #2 Exhibit, #3 Exhibit, #4 Exhibit, #5 Exhibit, #6 Exhibit, #7 Exhibit, #8 Exhibit, #9 Exhibit, #10 Exhibit)(Deutsch, Adam)
January 24, 2022 Filing 53 Second MOTION to Amend the pleadings by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit Certification of Counsel, #2 Exhibit Cover Letter, #3 Exhibit Proposed Amended Pleading)(Deutsch, Adam)
December 21, 2021 Filing 52 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered ALLOWING #51 Motion to Extend Deadline to Amend the Pleadings until January 28, 2022. (Zamorski, Michael)
December 20, 2021 Filing 51 First MOTION for Extension of Time to January 28, 2022 to Move for Leave to file Second Amended Complaint by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit Certification of Counsel)(Deutsch, Adam)
July 22, 2021 Filing 50 CERTIFICATION pursuant to Local Rule 16.1 by Mobilityless, LLC, Gabor Smatko, Monica Smatko.(Choi, Chelsea)
July 21, 2021 Filing 49 Judge Mark G. Mastroianni: ORDER entered:SCHEDULING ORDER: Amended Pleadings due by 12/31/2021. Discovery to be completed by 9/3/2021. Dispositive Motions due by 8/31/2022. A hearing on any filed dispositive motions will be held on 11/7/2022 at 10:00 a.m. If no dispositive motions are filed, this hearing will be converted to an initial pretrial conference. See attached Scheduling Order for more details. (Rivera, Christina)
July 21, 2021 Filing 48 Electronic Clerk's Notes for proceedings held before Judge Mark G. Mastroianni: Scheduling Conference held on 7/21/2021. (Attorneys present via Telephone: Atty Deutsch for Plaintiff, Atty Morneau for Deft) Colloquy re: Proposed dates. Court has added missing dates agreeable to both parties. Court to issue a Scheduling Order with agreed dates/deadlines. (Court Reporter: Alice Moran alice.moran@verizon.net.) (Rivera, Christina)
July 20, 2021 Filing 47 Remark: Clerk provided Telephone Conference call-in information to all parties via email. (Rivera, Christina)
July 15, 2021 Filing 46 First JOINT SUBMISSION pursuant to Local Rule 16.1 by Gerald Shearon, Barbara Swenson.(Deutsch, Adam)
June 22, 2021 Filing 45 ELECTRONIC NOTICE OF RESCHEDULING: Scheduling Conference previously set for 7/14/2021 is canceled due to Court Trial. Scheduling Conference now set for 7/21/2021 at 9:30 AM in Remote Proceeding : Springfield before Judge Mark G. Mastroianni. Court to provide call-in information one day prior to hearing. (Rivera, Christina)
June 22, 2021 Filing 44 ELECTRONIC NOTICE of Scheduling Conference: Scheduling Conference via Telephone set for 7/22/2021 at 9:30 AM in Remote Proceeding : Springfield before Judge Mark G. Mastroianni. Court to provide call-in information one day prior to hearing. (Rivera, Christina)
June 1, 2021 Filing 43 ANSWER to #29 Amended Complaint by Monica Smatko.(Choi, Chelsea)
June 1, 2021 Filing 42 ANSWER to #29 Amended Complaint by Gabor Smatko.(Choi, Chelsea)
April 30, 2021 Filing 41 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered denying #35 Defendant Monica Smatko's and #35 Defendant Gabor Smatko's Motions to Dismiss the Amended Complaint; and DENYING AS MOOT #38 Plaintiff's Second Motion for Leave to Obtain Discovery while the motions to dismiss are pending. Plaintiffs are individuals with mobility impairments who allege that Defendants perpetrated a criminal enterprise to defraud online purchasers of mobility-assistance devices like motorized scooters and tricycles. (See Dkt. No. 29, Amended Complaint ("AC") at 26-48, 60-87, 90-110.) Plaintiffs, who seek to represent a class, allege that Defendants knowingly sold damaged assistance devices to customers, refused to accept returns or issue refunds, and attempted to extort customers by stealing their bank information and filing frivolous suits against them, among other bad acts. (Id.) Defendant Gabor Smatko moves to dismiss the civil RICO claim against him; Defendant Monica Smatko moves to dismiss claims against her for civil RICO conspiracy, common law conspiracy, and violation of the Uniform Fraudulent Transfer Act. (Dkt. No's. 33, 35.) A plaintiff alleging civil RICO mail or wire fraud must plead the predicate acts with particularity, specifically as to "time, place, and content" of the communications. See New England Data Servs., Inc. v. Becher, 829 F.2d 286, 290 (1st Cir. 1987) (holding that "Rule 9(b) requires specified pleadings of RICO mail and wire fraud"). Plaintiffs have satisfied Rule 9(b) as to Defendant Gabor Smatko. (See, e.g., AC at 26-48, 54-63, 67-73, 78-85, 92-111.) Plaintiffs only just satisfy the heightened standard as to Defendant Monica Smatko. "However, dismissal of a civil RICO claim is not necessarily appropriate even where the complaint is not faithful in every respect to the requirements of Rule 9(b)." AngioDynamics, Inc. v. Clarion Med. Techs., No. 18-30038, 2019 WL 10787926, at *15 (D. Mass. Sept. 25, 2019) (quoting In re Lupron Mktg. & Sales Practices Litig., 295 F. Supp. 2d 148, 170 (D. Mass. 2003)) (internal quotation marks omitted). The Amended Complaint is "sufficient to put [Defendants] on notice of the alleged fraud and enable [them] to prepare a meaningful defense." See AngioDynamics, 2019 WL 10787926, at *15 (denying dismissal of RICO claims). "Plaintiff[s] here provided an outline of the general scheme to defraud and established an inference that the mail or wires was used to transact this scheme; requiring plaintiff[s] to plead the time, place and contents of communications between the defendants, without allowing some discovery... seems unreasonable." Becher, 829 F.2d at 291 (reversing dismissal and remanding for further discovery and amendment). Plaintiffs may, after discovery, seek leave to file a second amended complaint to correct any deficiencies, and Defendants may renew their challenges at summary judgment. See AngioDynamics, 2019 WL 10787926, at *16 (anticipating post-discovery motion to amend "[t]o the extent the complaint lacks details of specific instances of mail and wire fraud").As to the conspiracy claim, the Amended Complaint adequately alleges that Monica Smatko entered "a common design or an agreement" with her husband Gabor "to do a wrongful act" and took "some tortious act in furtherance." See Aetna Casualty Sur. Co. v. P&B Autobody, 43 F.3d 1546, 1564 (1st Cir. 1994) (describing common law conspiracy claim as "joint liability in tort"). Specifically, it alleges that the Smatkos had the common purpose of using the defendant corporation to defraud customers by selling and shipping damaged goods and refusing to accept them upon return or issue refunds. (AC at 26, 36-47, 163-69, 221-25.) In some instances, the scheme allegedly included attempts to trick customers into providing personal bank information and instituting baseless lawsuits to discourage customer complaints. (AC at 48, 67-71, 78-88, 110-16.) Monica Smatko allegedly advanced the scheme by, among other things, shipping defective goods to customers and "filing false claims and accusations" against customers in small claims court. (AC at 47-48, 163-67, 233.) Plaintiffs likewise allege a claim under the UFTA based on Monica Smatko's alleged transfer, within one month of this suit's filing, of the Smatkos' Arizona property to an LLC created to shield it from creditors and transfer of her Connecticut property to her son (who subsequently transferred it to another LLC) for the same purpose. (Id. at 120-32, 190-98, 205-206.) Both state law claims are adequately plead.The clerk of court is ordered to set a scheduling conference. (Lindsay, Maurice)
March 12, 2021 Filing 40 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered denying as moot #27 Defendant, Monica Smatko's, Motion to Dismiss Complaint, directed at the original complaint, in light of the filing of Plaintiff's First Amended Complaint (at Dkt. No. 29) and Defendant, Monica Smatko's, Motion to Dismiss (at Dkt. No. 33) directed at the Amended Complaint, which is still pending. (Lindsay, Maurice)
December 7, 2020 Filing 39 Opposition re #38 Second MOTION for Discovery Fed.R.Civ.P.26(d) filed by Mobilityless, LLC, Gabor Smatko, Monica Smatko. (Choi, Chelsea)
November 24, 2020 Filing 38 Second MOTION for Discovery Fed.R.Civ.P.26(d) by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit)(Deutsch, Adam)
October 14, 2020 Filing 37 First Opposition re #33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , #35 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Gerald Shearon, Barbara Swenson. (Attachments: #1 Affidavit)(Deutsch, Adam)
September 30, 2020 Filing 36 MEMORANDUM in Support re #35 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Gabor Smatko. (Choi, Chelsea)
September 30, 2020 Filing 35 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Gabor Smatko.(Choi, Chelsea)
September 30, 2020 Filing 34 MEMORANDUM in Support re #33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Monica Smatko. (Choi, Chelsea)
September 30, 2020 Filing 33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Monica Smatko.(Choi, Chelsea)
September 30, 2020 Filing 32 ANSWER to #29 Amended Complaint by Mobilityless, LLC.(Choi, Chelsea)
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 21 NOTICE of Appearance by Jeffrey S. Morneau on behalf of Mobilityless, LLC, Gabor Smatko, 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 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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Defendant: Kevin Smatko
Represented By: Chelsea K. Choi
Represented By: Jeffrey S. Morneau
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Defendant: Fountainmoons, LLC
Represented By: Chelsea K. Choi
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Defendant: Tree Union, LLC
Represented By: Chelsea K. Choi
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Defendant: Mobilitytrend, LLC
Represented By: Chelsea K. Choi
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Defendant: Epizontech, LLC
Represented By: Chelsea K. Choi
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Defendant: Omegas Stores, LLC
Represented By: Chelsea K. Choi
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Defendant: Monica, LLC
Represented By: Chelsea K. Choi
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Defendant: Sunborrow, LLC
Represented By: Chelsea K. Choi
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Defendant: Poltec, LLC
Represented By: Chelsea K. Choi
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Defendant: Hillsunion, LLC
Represented By: Chelsea K. Choi
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Defendant: Mogavike2020, LLC
Represented By: Chelsea K. Choi
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Defendant: Lagoon Trees, LLC
Represented By: Chelsea K. Choi
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Defendant: Toprex, LLC
Represented By: Chelsea K. Choi
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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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