UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

EXCELLER SOFTWARE CORP., et al., Case No. 1:18-cv-538

 

Plaintiffs, Barrett, J. 

 Bowman, M.J.

v.

JEFFREY DINE, et al., 

 

Defendants.

 

MEMORANDUM OPINION AND ORDER

On August 2, 2018, pro se Plaintiffs Ergun Fikri and Exceller Software Corporation

(“Exceller”), paid the requisite filing fee and initiated this litigation against their former 

attorneys, Jeff Dine, Jack Yoskowitz, Mark Hyland, and Seward & Kissel LLP (S&K). On 

August 10, 2018, Plaintiffs filed an amended complaint. (Doc. 3). Pursuant to local 

practice, this case was referred to the undersigned for initial consideration. On August 

24, 2018, the undersigned recommended that the case be DISMISSED sua sponte for 

lack of subject matter jurisdiction. (Doc. 13, Report and Recommendation (“R&R”)).

I. Background of Post-R&R proceedings

On September 6, 2018, Plaintiffs filed objections to the recommended sua sponte

dismissal of the entirety of this lawsuit. (Doc. 16). On October 1, 2018, Plaintiffs filed a 

“supplemental memorandum” concerning the same R&R, (Doc. 18), which Defendants 

have construed as an improper sur-reply to Defendants’ response to Plaintiffs’ objections 

to the R&R. Plaintiffs’ objections, Defendants’ response, and the supplemental 
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memorandum (a/k/a construed sur-reply) all remain pending before the presiding district 

judge, along with the R&R. 

Three additional motions filed over the past year now require additional attention: 

(1) Defendants’ motion to strike Plaintiff’s second supplemental brief; (2) Plaintiffs’ motion 

for leave to file supplemental briefs and sur-replies; and (3) Plaintiff’s motion for leave to 

find a new attorney for Exceller. For the reasons that follow, Defendants’ motion will be 

granted in part and denied in part, and Plaintiffs’ motions will be denied.

Ten months after the R&R was filed, Plaintiff Fikri filed yet another “supplemental 

brief.” The June 25, 2019 document appears to be in the nature of further objections or 

an additional sur-reply to the undersigned’s recommended dismissal of this case. On 

July 3, 2019, Defendants filed a motion to strike the latest supplemental brief as an 

untimely and improperly filed second sur-reply. (See Doc. 20). In turn, Plaintiff Ergun Fikri 

filed a pro se response in opposition to Defendants’ motion to strike, and both the pro se

Plaintiff and the corporate Plaintiff (ostensibly through counsel)1filed a motion specifically 

seeking leave to file “supplemental briefs and sur-replies.” (Docs. 21, 22).

Defendants filed a response in opposition to Plaintiffs’ motion in which Defendants

accuse Plaintiff Fikri of forging the signature of Rick Jones, Exceller’s attorney, and/or of 

improperly signing on Exceller’s behalf. (Doc. 23). The motion is supported by the 

Declaration of counsel verifying the authenticity of an email exchange between Mr. Jones 

 

1 At the time the R&R was filed, Exceller was not represented. Counsel first appeared on behalf of Exceller 

on September 6, 2019. The disputed “motion for permission to file supplemental briefs and sur-replies” 

facially appears to bear two different signatures: that of plaintiff Ergun Fikri, and a second signature that by 

“Rick A. Jones” on behalf of Exceller. However, as discussed infra, it appears that counsel for Exceller did 

not authorize his signature on the motion seeking leave to file “supplemental briefs and sur-replies.”
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and defense counsel, wherein Mr. Jones conceded that he had not authorized his 

signature on the court filing. In addition, on July 23, 2019, court staff had a brief telephone 

conversation with Mr. Jones in which he admitted that the signature on the referenced 

motion was not his own. Despite being advised by court staff to clarify the status of the 

contested signature in writing, no formal written clarification has been filed by Mr. Jones. 

On the other hand, further clarification has been provided by Plaintiff Fikri in the third 

motion pending before this Court. 

Specifically, on August 14, 2019, Plaintiff filed a motion seeking “leave to find a 

new attorney.” (Doc. 24). In this motion, Plaintiff clarifies that he is seeking to retain new 

counsel to represent Exceller. Plaintiff denies that he forged the signature of Mr. Jones

and instead asserts that he merely “sign[ed] on behalf of his Company with his own 

signature.” (Doc. 24 at 2). At the same time, Plaintiff admits that because Mr. Jones was 

traveling and unable to sign on behalf of his corporate client, Plaintiff signed on behalf of 

Exceller instead. Still, Plaintiff maintains that he has ever “knowingly forged anyone’s 

signature.” (Id.) Plaintiff has attached to his motion the same copies of email 

correspondence submitted by Defendants, in which Mr. Jones admits that he did not 

authorize Mr. Fikri to sign the motion on his behalf. Thus, both parties and their counsel

have now confirmed that the contested signature was not penned by Mr. Jones, but by 

the pro se Plaintiff Fikri. Although Mr. Jones has yet to file a formal motion to withdraw 

from representation as required, Plaintiff Fikri has made clear that he is seeking new 

counsel to represent Exceller. 
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II. Analysis

Defendants’ motion to strike Plaintiff’s second supplemental brief, construed as yet 

another sur-reply filed ten months post-R&R and without leave of court, will be granted 

only in part. The undersigned agrees that the document is untimely as well as 

procedurally improper and should be given no further consideration. At the same time, 

the undersigned declines to strike the document for reasons of judicial economy; namely, 

so that any reviewing court will have access to the complete record.

Plaintiff’s motion for leave to file supplemental memoranda and sur-replies will be 

denied. The time for such filings is long past, and Plaintiff’s insistence on continuing to 

file procedurally improper and legally frivolous arguments does nothing but further 

consume scarce judicial resources. If the presiding district judge declines to adopt the 

pending R&R and permits this case to continue, then – and only then – would it be 

appropriate to permit Plaintiff to file anything more in this record.

Plaintiff’s motion for leave to find a new attorney will be denied for the same 

reasons. The undersigned recommended dismissal of this case more than a year ago; 

there is no basis for further representation. Moreover, there is no constitutional right to 

counsel in a civil case, and this case does not present the type of “exceptional 

circumstances” in which the court would consider attempting to find counsel willing to 

represent Exceller on a pro bono basis. See Lavado v. Keohane, 992 F.2d 601, 605-606 

(6th Cir. 1993). 

III. Conclusion and Order

For the reasons stated herein, IT IS ORDERED THAT:
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1. Defendants’ motion to strike (Doc. 20) is GRANTED in part, to the extent that 

the supplemental brief (Doc. 19) should not be considered, but will not formally 

be stricken from the record;

2. Plaintiffs’ motion for leave to file supplemental memoranda and sur-replies 

(Doc. 21) is DENIED;

3. Plaintiffs’ motion seeking an extension of time to retain new counsel (Doc. 24) 

is DENIED;

4. Any further filings in this case are procedurally improper, and the filing of any 

further motions will be summarily denied, pending the Court’s adoption or 

rejection of the pending R&R.

s/ Stephanie K. Bowman 

Stephanie K. Bowman

United States Magistrate Judge