The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL ASAMOAH, :
: Case No. 2:20-cv-3305
Plaintiff, :
: CHIEF JUDGE ALGENON L. MARBLEY
v. :
: Magistrate Judge Elizabeth P. Deavers
AMAZON.COM SERVICES, INC.,1 :
:
:
Defendant. :
______________________________________
MICHAEL ASAMOAH, :
: Case No. 2:21-cv-0003
Plaintiff, :
: CHIEF JUDGE ALGENON L. MARBLEY
v. :
: Magistrate Judge Elizabeth P. Deavers
AMAZON.COM SERVICES, INC., :
:
:
Defendant. :
OPINION & ORDER
I. INTRODUCTION
This matter is before the Court on seven outstanding motions: (1) a Motion for Default
Judgment by Plaintiff Michael Asamoah (ECF No. 6); (2) a Motion to Remand by Mr. Asamoah
(ECF No. 11); (3) a Motion to Certify an Order for Interlocutory Appeal by Mr. Asamoah (ECF
No. 13); (4) a Motion to Strike Notice of Removal by Mr. Asamoah (ECF No. 14); (5) a Motion
1 Defendant’s proper name is Amazon.com Services LLC.
for Default Judgment by Mr. Asamoah (ECF No. 15); (6) a Motion to Compel by Mr. Asamoah
(ECF No. 17); and (7) a Motion to Consolidate by Defendant Amazon.com Services, Inc.
(“Amazon”) (ECF No. 20). For the following reasons, the Court DENIES Mr. Asamoah’s Motion
to Remand, DENIES both of Mr. Asamoah’s Motions for Default Judgment, DENIES Mr.
Asamoah’s Motion to Certify, DENIES Mr. Asamoah’s Motion to Strike, DENIES Mr.
Asamoah’s Motion to Compel, and GRANTS Amazon’s Motion to Consolidate.
II. BACKGROUND
A. Facts
Michael Asamoah is African American and a former Fulfillment Associate for Amazon.
He worked for Amazon from December 4, 2018, to on or around March 15, 2019. Per his
employment agreement with Amazon, Mr. Asamoah was an at-will employee and received an
allotment of Unpaid Personal Time (“UPT”) to cover time off work for any reason. During his
employment, Amazon rewarded Mr. Asamoah for his work through bonuses and gift cards. Mr.
Asamoah did not miss any days of work prior to early March 2019, and he had never used any of
his UPT.
On March 9, 2019, Mr. Asamoah became sick and went to the doctor, who told him not to
go to work for “several days.” (2:20-cv-3305, ECF No. 1 at 8). He called Amazon’s Human
Resources office to notify them he was sick and was instructed to bring a doctor’s note with him
when he returned to work. Mr. Asamoah then reported to his next scheduled shift on March 15.
Upon his return, he presented his doctor’s note to his new manager, Dalton Ferrell. Mr. Ferrell
allegedly refused to accept the note and instead informed Mr. Asamoah that he had already been
terminated. During that interaction, Mr. Ferrell also made remarks that Mr. Asamoah perceived to
be racist and discriminatory against his national origin. Mr. Asamoah complained to Mr. Ferrell’s
boss about Mr. Ferrell’s “refusal to accept and honor the valid doctor’s note.” (Id. at 11). He also
reported the incident to Amazon’s Human Resources department, who told Mr. Asamoah that Mr.
Ferrell’s decision to terminate him did not comport with Company procedures.
Mr. Asamoah filed a charge of discrimination (the “Charge”) with the U.S. Equal
Employment Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission the next
day, on March 20, 2019. In the Charge, he alleged he was the victim of race and national origin
discrimination in violation of Title VII. Mr. Asamoah submitted that he was not given a reason for
his termination, but that he believed it occurred because of his “race, Black” and because he was
“perceived to be of an African Ancestry because of [his] last name.” (2:20-cv-3305, ECF No. 23-
3). He made no other claims of discrimination in the Charge.
B. Procedural History
Mr. Asamoah received a Right to Sue letter from the EEOC on April 1, 2020. (Id.). He then
filed two cases pro se, one in federal court and one in state court.
1. Federal Action
On June 30, 2020, Mr. Asamoah filed his federal suit (the “Federal Action”), asserting
seven causes of action, including unlawful race discrimination (Federal Count One) and unlawful
national origin discrimination (Federal Count Two), in violation of Title VII of the Civil Rights
Act of 1964; unlawful age discrimination, in violation of the Age Discrimination in Employment
Act of 1967 (“ADEA”) (Federal Count Three); unlawful disability discrimination, in violation of
the Americans with Disabilities Act of 1990 (“ADA”) (Federal Count Four); and unlawful
retaliation, in violation of Title VII (Federal Count Five). (2:20-cv-3305, ECF No. 1). He also
alleges state law violations for breach of implied contract (Federal Count Six) and intentional
infliction of emotional distress (Federal Count Seven). Amazon was served with notice of the
Federal Complaint on July 6, 2020.
On August 17, 2020, Amazon moved to dismiss the suit for failure to state a claim. (2:20-
cv-3305, ECF No. 23). Mr. Asamoah filed his own Motion for Default Judgment against Amazon
on August 20, 2020. (Id., ECF No. 25). The Court responded to both motions on December 7,
2020, denying Mr. Asamoah’s motion for default judgment and granting in part Amazon’s motion
to dismiss. The Court dismissed without prejudice Federal Counts Three, Four, Five, Six, and
Seven but permitted Federal Counts One and Two to move forward.
2. State Action
On November 25, 2020, Mr. Asamoah filed this suit in the Court of Common Pleas of
Franklin County, Ohio (the “State Action”). (ECF No. 1). Mr. Asamoah filed an Amended
Complaint on December 10, 2020, asserting six causes of action, including unlawful racial
discrimination (State Count One) and unlawful ancestry or national origin discrimination (State
Count Two), in violation of Ohio Rev. Code § 4112.02(A); wrongful discharge, in violation of
public policy (State Count Three); unlawful disability discrimination, in violation of Ohio Rev.
Code § 4112.02(A) (State Count Four); unlawful retaliation, in violation of Ohio Rev. Code §
4112.02(I) (State Count Five); and intentional infliction of emotional distress (State Count Six).
Amazon was served with notice of the State Complaint on December 7, 2020, and was required to
answer within twenty-eight days, or by January 4, 2021. See Ohio R. Civ. P. 12.
On January 4, 2021, Amazon filed a Notice of Removal based on federal diversity
jurisdiction: the parties are completely diverse and the amount in controversy exceeds $75,000.
(ECF No. 1). On the same day, Mr. Asamoah filed his first Motion for Default Judgment, claiming
Amazon failed to answer the Complaint timely. (ECF No. 6). On January 5, 2021, Amazon filed a
Motion to Extend Amazon’s Time to Respond to Mr. Asamoah’s Amended Complaint. (ECF No.
3). The Court granted the extension, moving Amazon’s deadline to respond to the Complaint to
February 1, 2021. (ECF No. 8). On January 12, 2021, the Court stayed Amazon’s response
deadline until after the Court resolved forthcoming motions to remand and to consolidate. (ECF
No. 10).
Mr. Asamoah filed a Motion to Remand on January 13, 2021, claiming that removal was
improper because Mr. Asamoah’s claims did not implicate federal question jurisdiction. (ECF No.
11). On January 22, 2021, Mr. Asamoah filed a Motion to Certify for Interlocutory Appeal with
the Court, asking for appellate review of the removal to federal court. (ECF No. 13).
On January 6, 2021, Mr. Asamoah filed a Motion to Strike Amazon’s Notice of Removal
arguing that “the case is not removable.” (ECF. No. 14). On the same day, Mr. Asamoah filed a
Motion for Default Judgment, claiming again that Amazon failed to answer the Complaint timely.
(ECF No. 15). On February 4, 2021, Mr. Asamoah filed a Motion to Compel Initial Disclosure.
(ECF No. 17). Finally, Amazon filed its own Motion to Consolidate this case with the Federal
Action on February 19, 2021. (ECF No. 20).
III. LAW & ANALYSIS
A. Motion to Remand
Civil actions brought in state court may be removed to the applicable federal district court
by a defendant if the federal court has original jurisdiction over the claim. 28 U.S.C. § 1441(a).
Original jurisdiction exists in several situations, including when diversity jurisdiction is properly
invoked. Diversity jurisdiction requires that the parties be completely diverse and that the amount
in controversy exceeds $75,000. 28 U.S.C. § 1332(a).
To satisfy the complete diversity requirement, the parties must be citizens of different
states. 28 U.S.C. § 1332(a). A corporation is a citizen of every state where it is incorporated and
where it has its principal place of business. Id. § 1332(c)(1). Amazon is incorporated in the state
of Delaware and has its principal place of business in the state of Washington. (ECF No. 1 at 2–
3). Mr. Asamoah is a citizen of Ohio. (ECF No. 5 at 2). Thus, the parties are completely diverse.
Additionally, the amount in controversy must exceed “the sum or value of $75,000, exclusive of
interest and costs.” Id. § 1332(a). Mr. Asamoah requests multiple forms of relief, including
$25,000,000 in damages in his Amended Complaint. (ECF No. 5 at 12). As Mr. Asamoah has
conceded that the he seeks damages that exceed $75,000, this amount in controversy has also been
satisfied. Accordingly, the Court finds that diversity jurisdiction exists in this case and that removal
to federal court was proper. Mr. Asamoah’s Motion to Remand (ECF No. 11) is DENIED.
B. Motions for Default Judgment
1. Standard of Review
Rule 55 of the Federal Rules of Civil Procedure governs defaults and default judgments.
When a party against whom a judgment for relief is sought has failed to plead or otherwise defend,
and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default. Fed. R.
Civ. P. 55.
An entry of default does not automatically entitle the plaintiff to a default judgment. See
F.C. Franchising Sys., Inc. v. Schweizer, No. 1:11-CV-740, 2012 WL 1945068, at *3 (S.D. Ohio
May 30, 2012). The party seeking the default must show the court that, “when all of the factual
allegations in the complaint are taken as true, the defendant is liable for the claim(s)
asserted.” Methe v. Amazon.com.dedc, LLC, No. 1:17-CV-749, 2019 WL 3082329, *1 (S.D. Ohio
July 15, 2019) (quoting Said v. SBS Elecs., Inc., No. 1:08-CV-3067, 2010 WL 1265186, at *2
(E.D.N.Y. Feb. 24, 2010)).
When considering whether to enter default judgment, the Sixth Circuit instructs courts to
take into account the following factors: “1) possible prejudice to the plaintiff; 2) the merits of the
claims; 3) the sufficiency of the complaint; 4) the amount of money at stake; 5) possible disputed
material facts; 6) whether the default was due to excusable neglect; and 7) the preference for
decisions on the merits.” Russell v. City of Farmington Hills, 34 F. App’x 196, 198 (6th Cir. 2002).
2. First Motion for Default Judgment
When Amazon was served with a copy of the State Action Complaint on December 7,
2020, it had until January 4, 2021 to file its Answer. See Ohio R. Civ. P. 12(A)(1) (“The defendant
shall serve his answer within twenty-eight days after service of the summons and complaint upon
him.”). On January 4, 2021, however, Amazon filed a Notice of Removal based on federal diversity
jurisdiction. (ECF No. 1). The removal filing triggered an automatic seven-day extension to file a
response in federal court. See Fed. R. Civ. P. 81(c)(2)(C) (“A defendant who did not answer before
removal must answer or present other defenses or objections under these rules within . . . 7 days
after the notice of removal is filed.”). Amazon therefore had until January 11, 2021 to file its
response with this Court.
Mr. Asamoah prematurely filed his first Motion for Default Judgment. Rather than wait to
see if Amazon filed within the seven-day extension period, Mr. Asamoah filed his first Motion for
Default Judgment on the original answer deadline date, January 4, 2021, alleging Amazon failed
to answer the Complaint timely. (ECF No. 6). For this reason, Mr. Asamoah’s first Motion for
Default Judgment (ECF No. 6) is hereby DENIED.
3. Second Motion for Default Judgment
Mr. Asamoah filed a second Motion for Default Judgment on January 26, 2021, which used
nearly identical wording as his first motion. On January 12, 2021, the Court stayed Amazon’s
response deadline until after the Court resolved forthcoming motions to remand and to consolidate.
Because neither the Motion to Remand nor the Motion to Consolidate had been resolved when this
motion was filed, Mr. Asamoah’s second Motion for Default Judgment (ECF No. 15) is hereby
DENIED.
C. Motion to Certify Order for Interlocutory Appeal
Interlocutory appeals are to be reserved for “exceptional circumstances” and are generally
disfavored. Sinclair v. Schriber, 834 F.2d 103, 105 (6th Cir. 1987). The burden rests on the party
seeking certification of an interlocutory appeal to show that exceptional circumstances exist
warranting the interlocutory appeal. Alexander v. Provident Life & Acc. Ins. Co., 663 F. Supp. 2d
627, 639 (E.D. Tenn. 2009) (citing 28 U.S.C. § 1292(b)).
Under § 1292(b), the Court may issue relief of an interlocutory appeal only if three criteria
are satisfied: (1) the question must involve a controlling issue of law; (2) there must be a substantial
ground for difference of opinion; and (3) an immediate appeal would materially advance the
ultimate termination of litigation. Id.; Cook v. Erie Ins. Co., No. 2:18-cv-00282, 2021 WL
1056626, at *2 (S.D. Ohio Mar. 19, 2021). The Sixth Circuit has steadfastly held that the history
of § 1292(b) plainly shows that the statute is “not intended to open the floodgates to a vast number
of appeals from interlocutory orders in ordinary litigation.” Cardwell v. Chesapeake & Ohio Ry.
Co., 504 F.2d 444, 446 (6th Cir. 1974).
Mr. Asamoah’s Motion to Certify Order for Interlocutory Appeal fails to identify a legal
question that the Court can appropriately certify for appeal. Instead, the motion asks the Court “to
amend the Court’s Order of January 6, 2021, involving Amazon’s Motion for Notice of Removal.”
(ECF No. 13). Amazon’s Notice of Removal, however, is not a motion, and the Court did not issue
an order granting the removal.2 A notice of removal is automatically applied when a defendant
properly files all applicable materials with the state and federal courts. See 28 U.S.C. §§ 1446–47.
This Court did not issue an order pertaining to the validity of the Notice of Removal prior to
addressing Mr. Asamoah’s Motion to Remand above. Additionally, Mr. Asamoah’s Motion to
Remand, not this Motion to Certify an Order for Interlocutory Appeal, was the proper route to
challenge removal. Therefore, Mr. Asamoah’s Motion to Certify for Interlocutory Appeal (ECF
No. 13) is DENIED.
D. Motion to Strike
Rule 12(f) allows a court to “strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike
are infrequently granted and viewed with disfavor. Brown & Williamson Tobacco Corp. v. United
States, 201 F.2d 819, 822 (6th Cir. 1953); Lunsford v. United States, 570 F.2d 221, 229 (8th Cir.
1977). Motions to strike should be granted if “it appears to a certainty that plaintiffs would succeed
despite any state of the facts which could be proved in support of the defense and are inferable
from the pleadings.” Williams v. Jader Fuel Co., 944 F.2d 1388, 1400 (7th Cir.1991) (citations
and internal quotation marks omitted).
Mr. Asamoah’s Motion to Strike asks the Court to strike Amazon’s Notice of Removal,
arguing that this action is not removable because none of the claims arises under the Constitution,
laws, or treaties of the United States. Mr. Asamoah’s motion fails to consider that federal courts
also have subject matter jurisdiction over claims involving diversity of citizenship, where the
parties are comprised of diverse citizens and the amount in controversy is greater than $75,000.
2 The Court did enter a Related Case Memorandum Order on January 6, 2021, which determined that cases
2:20-cv-0003 and 2:20-cv-3305 are related.
See 28 U.S.C. § 1332(a). Because the Court has diversity jurisdiction over this matter, removal
was proper.
Additionally, Mr. Asamoah has failed meet his burden for this motion. The Federal Rules
allow a court to strike insufficient defenses or redundant, immaterial, impertinent, or scandalous
matters. Amazon’s Notice of Removal is not a defense, and Mr. Asamoah has not demonstrated
that the removal notice was redundant, immaterial, impertinent, or scandalous. Therefore, Mr.
Asamoah’s Motion to Strike (ECF No. 14) is DENIED.
E. Motion to Compel
The Federal Rules of Civil Procedure require parties to provide certain initial disclosures
regardless of whether they receive a discovery request. See Fed. R. Civ. P. 26(a)(1). A party must
provide the initial disclosure “at or within 14 days after the parties’ Rule 26(f) conference unless
a different time is set by stipulation or court order, or unless a party objects during the conference
. . . .” Fed R. Civ. P. 26(a)(1)(C). If one party does not comply with the rules, another party may
file a motion for an order to compel initial disclosure. Fed. R. Civ. Pro. 37(a)(1). The movant must
include a certification that they have “in good faith conferred or attempted to confer with the person
or party failing to make disclosure or discovery in an effort to obtain it without court action.” Id.
Additionally, Local Rule 37.1 states that before filing a motion to compel, the parties must exhaust
all extrajudicial means for resolving their differences and issues. S.D. Ohio Civ. R. 37.1
No Rule 26(f) conference has yet taken place for this action. The Federal Rules of Civil
Procedure make clear that Amazon does not have a duty to disclose any information until the
conference has occurred. Additionally, Mr. Asamoah’s motion fails to include a certification
showing he made any attempt to speak with Amazon prior to filing. Amazon states that it never
received any communication from Mr. Asamoah attempting to correct this issue extrajudicially.
(ECF No. 21 at 2). Mr. Asamoah did not comply with the rules for filing a Motion to Compel.
Accordingly, the Court hereby DENIES Mr. Asamoah’s Motion to Compel. (ECF No. 17).
F. Motion to Consolidate
Amazon moves to consolidate the Federal Action (2:20-cv-3305) and the State Action
(2:21-cv-003). When actions before a court involve a common question of law or fact, the Court
has the discretion to: “(1) join for hearing or trial any or all matters at issue in the actions; (2)
consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay.” Fed. R.
Civ. P. 42(a).
To consolidate the actions, there does not need to be “complete identity of legal and factual
issues posed in the cases which are the subject of the request.” J4 Promotions, Inc. v. Splash Dogs,
LLC, Nos. 2:09-cv-136, 2:10-cv-432, 2010 WL 3063217, at *1 (S.D. Ohio Aug. 3, 2010). The goal
of consolidation “is to administer the court’s business with expedition and economy while
providing justice to the parties.” Stillwagon v. City of Delaware, No. 2:14-CV-1606, 2016 WL
6094157, at *2 (S.D. Ohio Oct. 19, 2016) (internal quotations omitted). The Court must ensure
“that consolidation does not result in unavoidable prejudice or unfair advantage.” Cantrell v. GAF
Corp., 999 F.2d 1007, 1011 (6th Cir. 1993).
District courts have broad discretion when determining when consolidation is appropriate
and should consider the following factors when making the decision:
Whether the specific risks of prejudice and possible confusion are overborne by the
risk of inconsistent adjudications of common factual and legal issues, the burden
on parties, witnesses and available judicial resources posed by multiple lawsuits,
the length of time required to conclude multiple suits against a single one, and the
relative expense to all concerned of the single-trial, multiple-trial alternatives.
Stillwagon, 2016 WL 6094157, at *2.
The state and federal actions at issue here share numerous commonalities of fact. They
involve identical parties and counsel, and both actions relate to the allegedly unlawful termination
of Mr. Asamoah. The complaints in the two actions contain virtually identical wording, causes of
action, and requested relief. Additionally, Mr. Asamoah appears to treat both actions
interchangeably, as evinced by the various motions that have been filed in both cases, even when
not entirely fitting or relevant. It is not in the best interest of either party to expend the time, money,
or resources that would be required to resolve these two, nearly identical lawsuits separately.
Furthermore, consolidation of the state and federal actions will promote efficiency and
judicial economy while preventing the possibility of inconsistent judgments. This Court began
adjudicating Mr. Asamoah’s federal claim nearly five months before the state action was filed.
Resolving the consolidated cases together will help prevent possible confusion that may result
from inconsistent decisions of common factual issues, and it will conserve judicial resources.
Because the cases share common questions of fact and consolidation will facilitate efficiency, the
Court hereby GRANTS Amazon’s Motion to Consolidate.
Going forward, the Court hereby ORDERS the parties in this matter to submit all future
filings under the following case and caption:
MICHAEL ASAMOAH, :
: Case No. 2:20-cv-3305
Plaintiff, :
: CHIEF JUDGE ALGENON L. MARBLEY
v. :
: Magistrate Judge Elizabeth P. Deavers
AMAZON.COM SERVICES, INC., :
:
:
Defendant. :
The Court issues this instruction to promote efficient litigation and to ensure parties receive timely
notice of new occurrences as they arise.
IV. VEXATIOUS LITIGATOR
As Magistrate Judge Vascura has previously explained:
Federal courts have recognized their own inherent power and constitutional
obligation to protect themselves from conduct that impedes their ability to perform
their Article III functions and to prevent litigants from encroaching on judicial
resources that are legitimately needed by others.” Meros v. Dimon, No. 2:17-cv-
103, 2017 WL 6508723, at *9 (S.D. Ohio Dec. 20, 2017) (quoting Johnson v. Univ.
Housing, No. 2:06-cv-628, 2007 WL 4303729, at *12 (S.D. Ohio, Dec. 10,
2007) . . . The Sixth Circuit has upheld various prefiling restrictions trial courts
have imposed on vexatious litigators. See, e.g., Filipas v. Lemons, 835 F.2d 1145
(6th Cir. 1987); Feathers v. Chevron U.S.A., 151 F.3d 264, 269 (6th Cir. 1998);
Wrenn v. Vanderbilt Univ. Hosp., Nos. 94-5453, 95-5593, 1995 WL 111480 (6th
Cir. Mar. 15, 1995).
Clemons v. Ohio State Univ., No. 2:18-CV-1217, 2018 WL 6931871, at *4 (S.D. Ohio Nov. 5,
2018), report and recommendation adopted sub nom. Clemons v. Kasich, No. 2:18-CV-1217, 2018
WL 6499516 (S.D. Ohio Dec. 11, 2018), aff’d sub nom. Clemons v. DeWine, No. 19-3033, 2019
WL 7567197 (6th Cir. May 2, 2019).
Mr. Asamoah has filed more than ten active lawsuits in the Southern District of Ohio in
the past two years, each presenting virtually identical complaints, and many of which are
unquestionably meritless. Accordingly, this Court deems Mr. Asamoah a vexatious litigator and
ENJOINS him from filing any new action in any court in this district, unless he accompanies such
a new action with a certificate from an attorney who is licensed to practice in this Court or the
State of Ohio, stating that there is a good faith basis for the claims Mr. Asamoah seeks to assert.
If Mr. Asamoah files another complaint in this or any other court, he is ORDERED to
include the captions and case numbers of all his prior actions.
Case No. 2:21-cv-4039
Case No. 2:21-cv-4038
Case No. 2:21-cv-4026
Case No. 2:21-cv-4025
Case No. 2:21-cv-3724
Case No. 2:21-cv-0003
Case No. 2:20-cv-6590
Case No. 2:20-cv-5376
Case No. 2:20-cv-3305
Case No. 2:19-cv-5507
Case No. 2:19-cv-5292
The Clerk is DIRECTED to refuse to docket any new complaint unless it is accompanied
by the required certificate.
V. CONCLUSION
For the foregoing reasons, the Court DENIES Mr. Asamoah’s Motion to Remand,
DENIES both of Mr. Asamoah’s Motions for Default Judgment, DENIES Mr. Asamoah’s Motion
to Certify, DENIES Mr. Asamoah’s Motion to Strike, DENIES Mr. Asamoah’s Motion to
Compel, and GRANTS Amazon’s Motion to Consolidate.
Further, Mr. Asamoah is DEEMED A VEXATIOUS LITIGATOR and is ENJOINED
from filing any new actions without submitting a statement from an attorney licensed to practice
in this Court or the State of Ohio certifying that there is a good faith basis for the claims Mr.
Asamoah seeks to assert. Mr. Asamoah is further ORDERED to include the captions and case
numbers of all his prior actions, should he file a complaint in this or any other court.
IT ISSO ORDERED.
ALGENON TL. MARB
CHIEF UNITED STATES DISTRICT JUDGE
DATED: August 17, 2021
14