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Lucas v. Telemarketer Calling From (407) 476-5680 and Other Telephone Numbers

United States District Court, S.D. Ohio, Western Division

October 26, 2017


          Black, J.


          Stephanie K. Bowman United States Magistrate Judge

         The above captioned case involves Plaintiff's allegations of illegal telemarketing practices. Seeking monetary damages and injunctive relief, Plaintiff initiated this litigation pro se on August 20, 2012.[1] As explained below, the only claims remaining in this case are claims that a now-dissolved entity known as Defendant TMC, and/or its alter ego, Defendant Fred Accuardi, made two telephone calls to Plaintiff in September 2011 in violation of a provision of federal law. However, evidence uncovered at the end of discovery strongly suggests that a different entity known as Sale Technology actually initiated those two calls, but the time for filing any dispositive motions has long expired.

         Currently before the undersigned is Plaintiff's motion to file a fourth amendment to his complaint. (Doc. 199). For the following reasons, I now recommend that Plaintiff's motion be DENIED.

         I. Background

         After initiating suit more than five years ago, Plaintiff amended his complaint three times, continually adding new parties and expanding his claims that various Defendants violated multiple federal and state laws and both federal and state common law by engaging in illegal telemarketing practices. On March 20, 2014, the undersigned filed a Report and Recommendation (“R&R”) that recommended dismissal of most pending claims against most Defendants, [2] on the basis that Plaintiff's third amended complaint failed to state any claim, with the exception of federal Telephone Consumer Protection Act (“TCPA”) claims against Telephone Management Corporation (“TMC”) and Defendant Fred Accuardi. (Doc. 91).

         Plaintiff had asserted many claims concerning multiple telephone calls that he allegedly received in violation of the National Do Not Call Registry status of his residential telephone number. However, the undersigned rejected Plaintiff's theories of “vicarious/contributory liability” under the TCPA, and further held that the only claims permitted to proceed were TCPA claims regarding two specific telephone calls, alleged by Plaintiff to have been “originated” by TMC and received by Plaintiff on September 7 and September 9, 2011. (Doc. 91 at 18, citing Third Amended Complaint at ¶ 34). The undersigned found that, based on the allegations of the complaint, only TMC and Accuardi fell within the definition of a “telemarketer” under the TCPA for the two referenced calls. In recommending dismissal of all other claims, [3] the undersigned specifically rejected every theory of liability under state law, as well as all other federal theories of liability.

         In Objections filed by both parties and other post-R&R documents, Defendants TMC and Accuardi maintained that neither Defendant actually initiated or placed either of the two referenced telephone calls. Plaintiff admitted that if Defendants' proof demonstrated that neither was the “true caller” of the September 2011 calls, then (under the R&R) he would not be able to continue even his single TCPA claim against the two Defendants.

         Although none of the parties sought extension of the expired dispositive motion deadline, the undersigned extended discovery, directing the parties to complete discovery relating to the “true caller” by June 1, 2014. (Minute entry of 4/16/14). On May 22, 2014, the undersigned granted Defendants' motion to compel non-party AT&T to respond to a subpoena seeking records relating to TMC's calls from September 2011. (Docs. 110, 112). Defendants later identified an entity called “Sale Technology” as the “true caller.” (Doc. 122-8, Exh. H). On November 18, 2014, the undersigned granted Plaintiff's motion to compel additional discovery from Defendants, directing Defendants to respond by November 28, 2014. (Doc. 138 at 23). At the same time, the undersigned granted Plaintiff's motion for Rule 37 sanctions against Fred Accuardi and TMC “for their failure to adequately respond to Plaintiff's earlier discovery requests [and]…failure to fully comply with this Court's prior order compelling supplemental discovery disclosures, and the resulting tardy disclosure of [a relevant]… email.” (Id.) Both parties filed Objections to that order, which were overruled. (Doc. 169).

         In the meantime, after the March 2014 R&R was filed dismissing all claims and parties except those relating to the two September 2011 calls, this case took a procedural detour when Plaintiff filed a petition with the Federal Communications Commission. The petition sought a ruling from the FCC consistent with a legal theory that the R&R had rejected, that “a person is vicariously or contributorily liable if that person provides substantial assistance or support to any seller or telemarketer when that person knows or consciously avoids knowing that the seller or telemarketer is engaged in any act or practice” that violates the TCPA. (Doc. 166, citing Docs. 114 and 114-1). On August 5, 2014, the then-presiding district judge[4] granted Plaintiff's motion to stay the Court's ruling on the March 2014 R&R pending further ruling by the FCC on Plaintiff's petition. (Doc. 120). Urging the FCC to rule “promptly, ” the Court directed the parties to file status reports every 120 days. (Doc. 120 at 12).

         On February 26, 2015, the undersigned entered a Memorandum Order that ruled on several motions filed by Plaintiff. The Order summarized the complex litigation history and pointed out that the recent reassignment to U.S. District Judge Black invited his reconsideration of how long the existing stay on March 2014 R&R should continue. (Doc. 166). The Order reiterated that: “If Sale Technology is proven to be the true caller [of the two September 2011 calls] and the March 2014 R&R is adopted, the last remaining claims in this lawsuit will be subject to dismissal.” (Doc. 166 at 17). In denying Plaintiff's motions to expand discovery into new calls and potential new claims, the Court wrote:

It seems clear that Plaintiff's real purpose is to continue to expand his claims and the number of defendants in this existing litigation. Indeed, he argues that once he determines the identity of the caller or callers, “joinder of the new claims into this lawsuit is permitted under Rule 20(a)(2)(B).” (Doc. 164 at 3). The undersigned could not disagree more. Ironically, Plaintiff himself footnotes a contrary view, suggesting that “if there is no connection at all between these calls” and those at issue in this lawsuit, “I would choose to pursue claims regarding the new calls in a separate lawsuit….” (Doc. 164 at 3). The undersigned takes judicial notice of the fact that Plaintiff recently initiated a new lawsuit against Victor Jolin, presumed to relate to some of the recent calls he alleges that he has received.

(Doc. 166 at 18). Indeed, as noted in footnote 1 above, Plaintiff has instituted multiple lawsuits against many Defendants concerning similar calls and alleging similar claims in this Court. Judge Black overruled all Objections to the February 2015 Order, but did not explicitly address whether to continue the stay on ruling on the March 2014 R&R. (Docs. 169, 171).

         Plaintiff continued to file new discovery-related motions, including a motion seeking additional sanctions against both TMC and Accuardi. On August 20, 2015, the undersigned ruled on several matters, increasing the monetary sanction against TMC and Accuardi payable to Plaintiff under Rule 37 from the original $500 to $1, 000 per Defendant, based in part upon the Defendants' “inexcusable” delay in payment. (Doc. 178 at 13). On the same date, the undersigned recommended the denial of Plaintiff's dispositive motions for contempt and entry of default judgment. (Doc. 179). Plaintiff filed Objections to both the Order and the R&R, which the district court overruled. (Doc. 186).

         In the August 2015 Order, the undersigned also expanded the existing stay.

The only issue remaining in this case - absent rejection of the pending R&R - are the two “508” [area code] calls ostensibly made by a non-party [Sale Technology]. The time for TMC and Fred Accuardi to file a motion for summary judgment on those limited issues has expired, but they too could not be dismissed out completely, even if the Court permitted them to file a belated motion to prove that they were not the “true caller” of the 508 calls, unless the long-pending R&R were to be fully adopted. All remaining issues regarding the prior production of discovery and sanctions have been resolved. Rather than continuing to engage in piecemeal or satellite litigation, a full stay of all further proceedings in this case is appropriate at this time.

(Doc. 178 at 14-15). Plaintiff again filed Objections, which were again overruled. (Doc. 186). During the period of a full stay of all proceedings, little was filed other than the ...

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