United States District Court, N.D. Mississippi, Aberdeen Division
ETHAN HOGGATT, ET AL. PLAINTIFFS
ALLSTATE INSURANCE, ET AL. DEFENDANTS
A. SANDERS UNITED STATES MAGISTRATE JUDGE
the Court are several related motions which are ripe for
case involves fraud and civil RICO claims by Ethan Hoggatt
and his father, Dr. Eric Hoggatt, against Allstate Insurance
and its employees, Andy Dyson and Suzanne Hand. Plaintiffs are
represented by attorney Victoria Hoggatt-Eric's wife and
Ethan's mother. The plaintiffs originally filed this case
in Monroe County Circuit Court, and on January 15, 2019, the
defendants timely removed it to this Court. Plaintiffs moved
to remand the case to state court, arguing that, because the
state courts are competent to hear federal claims, removal
was improper. The Court denied that motion. By letter dated
February 9, 2019, Allstate notified Eric and Victoria that it
would not renew their automobile insurance based on
Ethan's driving record and claim history. The notice also
informed the Hoggatts that, pursuant to Section 612 of the
Fair Credit Reporting Act, they had “the right to
obtain a free copy of the report(s) from the consumer
reporting agency(ies) that provided it to [Allstate] if
[they] request it within 60 days of receiving this
notice.” It also provided the contact information for
the agency (identified as LexisNexis Risk Solutions) that
supplied the motor vehicle report.
than seeking the report from LexisNexis Risk Solutions,
Plaintiffs sought the report from Allstate. Counsel for
Allstate, Charles Cowan and Cory Radicioni-both with Wise,
Carter, Child, and Caraway, P.A.-informed plaintiff that
“[s]ince this matter is the subject of active
litigation, any request for documents related to this
litigation will need to be formalized in a discovery request
following the Rule 16 conference in this matter.”
13, 2019, Allstate filed a motion to dismiss . The
individual Allstate defendants filed a motion to dismiss the
next day .
29, 2019, Plaintiffs submitted a letter and sworn criminal
affidavit to Mississippi Insurance Commissioner Mike Cheney,
United States Attorney for the Northern District of
Mississippi Chad Lamar, and District Attorney for the First
Circuit of Mississippi John Weddle.The letter and criminal
affidavit asked the recipients to investigate and prosecute
Allstate and various others for acts related to this lawsuit.
Notably, it charged Cowan, Radicioni, and their firm with
“intentional and egregious obstruction of . . .
Allstate's compliance with the legal requirements of
the Fair Credit Reporting Act” and for conspiring to
learning of this letter and affidavit, Allstate's counsel
contacted the Court by email on June 26, 2019, to request a
telephonic conference pursuant to Fed. R. Civ. Pro.
16(b)(3)(B)(v) to discuss the discovery dispute and the
outstanding affidavit. Allstate informed the Court of its
intent to seek a protective order, but, recognizing this
Court's practice-as well as the directive of Rule
16-sought a telephonic conference before filing any motions.
The next day, the Court noticed a telephonic status
conference for 2:00 that afternoon. Allstate's counsel
provided all parties, including the Court, with a call-in
number. The Court delayed calling to give the parties time to
all be on the line. At approximately 2:10, the
undersigned's clerk called into the conference. He was
informed that Plaintiffs' counsel was not on the line,
but that defense counsel was attempting to reach her. Defense
counsel was placed on hold, and the clerk checked in
five-minute intervals whether Plaintiffs' counsel was on
the line. Just prior to informing defense counsel that the
conference would be rescheduled, the clerk was informed that
Plaintiffs' counsel was joining the call. Only then did
the undersigned join the conference.
conference, Plaintiffs' counsel informed the Court that
she would be filing an amended complaint the next week to add
Allstate's defense counsel as parties for what she termed
as “obstructing her clients' statutory right to
documents.” Defense counsel stated that if Plaintiffs
were pursuing that course, they would be forced to file a
motion for a protective order. The Court informed the parties
that with these developments, along with the outstanding
motions to dismiss, the case management conference would
continue to be postponed and the Court would await the proposed
following Monday, Allstate filed its  Motion for
Protective Order and Sanctions. The next day, Plaintiffs
filed their  Motion for Leave to File First Amended
Complaint. Although requesting leave, Plaintiffs filed their
First Amended Complaint  without this Court granting
leave to do so. Allstate filed a  Motion to Expedite
Briefing and Ruling on its Motion for Protective Order and
Sanctions. Subsequently, on August 8, 2019, Plaintiffs filed
a  Second Motion for Leave to Amend
argues that Plaintiffs' submission of a criminal
affidavit charging its attorneys with obstruction of justice
and related conspiracy “is wholly improper and
constitutes an abuse of process.” Allstate asks that
this Court “require Plaintiffs, by written
correspondence, to request a withdrawal of the criminal
affidavit;” “prohibit Plaintiffs and their
counsel . . . from adding Allstate's . . . counsel in
this case, Charles Cowan and Cory Radicioni, and their firm
Wise Carter Child & Caraway as defendants in this matter
or otherwise filing a separate action based . . . upon their
conduct in defending their client in this litigation;”
“require Plaintiffs and their counsel . . . to cease
and desist from contacting Allstate and its employees/agents
regarding any matter related to this litigation;” and
“hold Plaintiffs and their counsel, Victoria Hoggatt,
jointly, responsible for compensating Allstate for its
reasonable attorney's fees incurred in responding to the
May 28, 2019[, ] criminal affidavit and moving for the
instant protective order and sanctions.”
responding to Allstate's motion, Plaintiffs sought leave
to amend their complaint to, among other things, add defense
counsel and their firm as defendants. As a preliminary
matter, the Court notes that as grounds for granting leave to
amend, Plaintiffs in their motion cite only to the
Mississippi Rules of Civil Procedure-which do not apply to
this action. Plaintiffs filed no memorandum supporting their
motion and the sole basis sought for granting leave is to add
parties and claims “due to newly discovered
evidence.” However, Plaintiffs' proposed amended
complaint contains their arguments for amendment.
Plaintiffs argue that the FCRA provides them an absolute
statutory right to the documents requested from Allstate, and
that if there is a conflict between that “federal
law” and “state law” regarding discovery,
then the supremacy clause mandates that “the federal
law must be applied.” However, what Plaintiffs fail to
appreciate is that this case is not governed by state rules
of procedure, but rather by the Federal Rules of Civil
Procedure. The Federal Rules, as well as this Court's
Local Rules, are “laws of the United States.”
Marshall v. Gates, 44 F.3d 722, 724 (9th Cir. 1995)
(quoting U.S. v. Hvass, 355 U.S. 570, 575 (1958)).
See also 28 U.S.C. § 2071; Fed.R.Civ.P. 83.
argument is two-fold. First, it argues that the FCRA directs
that Plaintiffs have a right to request the documents from
the reporting agency, not Allstate. Second, Allstate
argues the documents relate to this litigation and therefore
must be requested through formal discovery. However, the
document-dispute itself is not before this Court. Plaintiff
has not filed a motion to compel production. While Allstate
has filed a motion for protective order, it does not ask the
Court to determine whether it must produce the documents.
What is before the Court are the following pertinent facts:
1. Plaintiff requested documents directly from Allstate, in
response to a FCRA notice.
2. Allstate's attorneys responded that the documents
relate to ongoing litigation and must be requested through
3. Plaintiffs submitted a criminal affidavit accusing
Allstate's counsel of obstruction of justice.
4. Plaintiffs filed a motion for leave to amend and an
amended complaint to add Allstate's counsel as defendants
for obstructing justice and related conspiracy by refusing to
produce the documents outside formal discovery.
bottom, Plaintiffs-and their counsel-claim they are entitled
to documents outside of discovery. Allstate and its attorneys
argue the documents must be requested through discovery.
That-in and of itself-is a discovery dispute. The proper way
to bring a discovery dispute to the Court's attention is
by motion. As a matter of course, this Court's case
management orders contain a provision that “before
moving for an order relating to discovery, the movant must
request a conference with the court.” See Fed.
R. Civ. Pro. 16(b)(3)(B)(v). Although a case management order
has not been entered in this case, the parties are encouraged
to request a conference with the Court prior to filing a
discovery motion-as Allstate's counsel sought to do.
Plaintiffs neither requested a conference nor filed a motion.
Instead, they submitted a criminal affidavit and amended
complaint adding defense counsel for what is, ultimately, a
the Court understands defense counsels' request that the
Court order Plaintiffs to “take it back” and
withdraw their criminal affidavit, the Court cannot do so.
Plaintiffs have sworn-out a criminal affidavit. This Court
has determined the accusations against defense counsel to be
clearly baseless. If the letter is, as defense counsel argue,
“harassing, malicious, and libelous,
”then counsel may seek redress through the
state's law of torts.
the Court finds that Plaintiffs'-through their own and
their attorney's actions- have “unreasonably and
vexatiously multiplie[d] the[se] proceedings.” See
Rossmann v. Pulaski, 2017 WL 9512372, at *3 (N.D. Miss.
Nov. 17, 2017). The Court has inherent power-emanating from
the “control necessarily vested in courts to manage
their own affairs so as to achieve the orderly and
expeditious disposition of cases”-to impose sanctions
for such conduct. Id. (quoting Chambers v.
NASCO, Inc., 501 U.S. 32, 43 (1991)). The particular
sanction to impose is “uniquely committed to the sound
discretion of the imposing court.” Id.
(quoting Crowe v. Smith, 151 F.3d 317, 241 n. 39
(5th Cir. 1998)). ...