United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge
Vincent Lucas (“Lucas”) is an experienced pro
se litigant who frequently litigates claims against
Defendants that he believes have illegally placed
telemarketing calls to his home telephone
number. Plaintiff initiated this lawsuit on July
27, 2016, by paying the requisite filing fee and filing a
complaint that alleged only that “John Doe”
Defendants had violated federal law by engaging in illegal
telemarketing practices. Although Plaintiff failed to
identify any of the “John Does” within the first
90 days after filing suit, he eventually identified a total
of seventeen Defendants alleged to be responsible for various
calls on multiple dates.
than a year after Plaintiff had initiated suit, on September
12, 2017, the undersigned magistrate judge granted Plaintiff
leave to file a second amended complaint. At the same time,
the Court entered a calendar order. (Docs. 106, 121). On
October 19, 2017, the undersigned filed a Report and
Recommendation (“R&R”) that recommended
rulings on approximately a dozen motions, most of which had
been filed by Plaintiff. (Doc. 122). Plaintiff vigorously
objected to that R&R, (Doc. 123), and those objections
were submitted to the presiding district judge, U.S. District
Judge Michael R. Barrett, for de novo review. On
March 31, 2018, Judge Barrett adopted the R&R as the
opinion of the Court, with one notable exception discussed
below. (Doc. 156).
November 16, 2017, Defendants 310 Network Inc.,
NexInteractive Inc., and Rodolfo Salazar (hereinafter the
“Salazar Defendants”), through counsel, filed a
motion to dismiss, asserting that this Court lacks personal
jurisdiction over them. (Doc. 124). While that motion
remained pending, the parties proceeded with contentious
discovery, leading to multiple rulings by the undersigned on
disputed issues. (Docs. 126, 134, 138, 139, 143).
motion to dismiss for lack of jurisdiction remains pending
and is addressed by this R&R, along with a motion more
recently filed by Plaintiff that seeks to hold the Defendants
in both civil and criminal contempt. For the following reasons, I
recommend that Defendants' motion be granted and that
Plaintiff's motion be denied.
Defendants' Motion to Dismiss
seeks to hold the three Salazar Defendants liable for four
telephone calls he received on separate dates in February
2015. Plaintiff alleges that the Salazar Defendants are
liable under the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. §§227(b) and
227(c), the Ohio Telephone Solicitation Act, the Ohio
Consumer Sales Practices Act, and for alleged regulatory
violations of the Public Utility Commission of Ohio. (Doc.
108). Plaintiff further alleges that all seventeen identified
defendants, including the Salazar Defendants, committed a
“pattern of corrupt activity under Ohio Rev. Code
§ 2923.32, ” that “Salazar personally
participated in or authorized the violation of the TCPA and
OCSPA, ” that “Salazar has failed to follow the
corporate formalities” for NexInteractive, Inc. and 310
Networks, and that Salazar is “personally liable for
the actions of the respective companies.” (Id.
at ¶¶94-96). Plaintiff seeks the imposition of
joint and several liability against the Salazar Defendants
for “at least $18, 000” in statutory damages, the
imposition of treble damages, and permanent injunctive
relief, as well as “costs, attorney fees, and
interest.” (Doc. 108 at 14).
Salazar Defendants argue that the allegations do not satisfy
the requirements of Ohio's long-arm statute, Ohio R.C.
§2307.382, or the Due Process Clause of the U.S.
Constitution to permit this Court to exercise personal
jurisdiction over them.
The Threshold Issues of Waiver and Consent to Personal
turning to the merits of Defendants' motion, the Court
must address threshold issues of waiver and consent.
Plaintiff argues that the Salazar Defendants have consented
to the Court's personal jurisdiction and/or waived their
personal jurisdiction defense through their conduct.
served Defendant Salazar on January 12, 2017, and served
Defendants 310 Network, Inc. and NexInteractive, Inc. on or
about January 17, 2017. Plaintiff sought and obtained a
Clerk's entry of default after Defendant Salazar failed
to timely answer Plaintiff's amended complaint. (Doc.
29). On March 20, 2017, Plaintiff filed a motion seeking
default judgment against Salazar. (Doc. 68). Thereafter,
Salazar sent a letter to the Court, which the Clerk of Court
construed and docketed as an Answer on April 18, 2017. (Doc.
74). On May 30, 2017, after Plaintiff filed his first motion
to amend/correct his amended complaint (Doc. 80), Salazar
sent a second letter to the Clerk of Court, which the Clerk
also construed and docketed as an Answer. (Doc. 89). On July
21, 2017, Salazar filed a third pro se document, which was
docketed as a Motion to Dismiss on behalf of all three
Salazar Defendants. (Doc. 98). None of the referenced pro se
documents sent to the Court by Salazar raised the affirmative
defense of personal jurisdiction.
upon the failure of Salazar to raise the defense in his three
pro se communications, Plaintiff argues that Salazar has
consented to the jurisdiction of this Court over his person,
and also has consented to jurisdiction over the two
corporations associated with him. For similar reasons,
Plaintiff argues that Salazar has waived any personal
jurisdiction defense. However, Judge Barrett recently
determined that the two letters were improperly construed by
the Clerk as responsive pleadings. In the same Order, Judge
Barrett struck Salazar's pro se motion to dismiss from
the record. (Doc. 156). Judge Barrett's Order is
controlling and dispositive on all issues presented
concerning the Salazar Defendants' alleged consent and/or
waiver of their personal jurisdiction defense.
of background, on August 21, 2017, newly retained counsel
entered his appearance on behalf of the Salazar Defendants.
(Doc. 103). After Plaintiff was granted leave to file a
Second Amended Complaint, Defendants, through counsel, filed
an answer and a motion to dismiss, both of which assert the
defense of personal jurisdiction. Plaintiff initially
objected to the Salazar Defendants being permitted to file an
Answer to the Second Amended Complaint, based in part on
arguments that Salazar exhibited undue delay and failed to
cure deficiencies in his earlier pro se filings. Both the
undersigned in her R&R and Judge Barrett rejected
Plaintiff's arguments. (See Doc. 156 at 19-20).
In overruling Plaintiff's Objections to the R&R,
Judge Barrett explained that Salazar's initial pro se
communications had been improperly construed by the Clerk of
Court as pleadings:
Plaintiff's initial pro se letters were construed by the
clerk and docketed as answers, but the Court is not convinced
they should be treated as such. Plaintiff appears to concede
that the letters are not easily classifiable. (Doc. 68;
PageID 261). Indeed, Defendant Salazar's letters could be
construed as inquiries to the Clerk's Office about
whether the summons/complaint were legitimately issued by the
Clerk, as Defendant Salazar feared he had received
essentially a counterfeit summons. (Doc. 68; PageID 269). See
also Doc. 112-3, PageID 682. Thus, under the
specific facts of this case, the Court declines to treat
Defendant Salazar's letters as his initial responsive
(Doc. 156 at 20, n.6)(emphasis added).
his objections to the R&R, Plaintiff maintained that
even if the Court did not strike the Defendants' Answer
in its entirety, the Court should at least strike the
affirmative defenses of personal jurisdiction and improper
venue. However, Judge Barrett also rejected Plaintiff's
arguments that Salazar had forfeited those defenses:
Plaintiff argues that Defendant Salazar waived his
personal jurisdiction and venue defenses because they were
not included “in his original answer or motion
permitted by Rule 12.” However, the defense is included
[in] the original answer (Doc. 109), as this Court has
declined to treat Defendant Salazar's pro se letters to
the Clerk as his initial pleadings. See n. 6, supra.
Furthermore, Salazar's only motion predating the answer
has been stricken, per Plaintiff's request.
See n. 1, supra. Therefore, there has been
technical compliance with Rule 12(h). ...Furthermore, the
Court is not persuaded that Defendant Salazar's early
conduct in this litigation created the
“expectation” that he intended to defend on the
merits. Indeed, Plaintiff has argued that Defendant
Salazar's early resistance to participating in this
litigation amounts to sanctionable conduct. Plaintiff cannot
have it both ways.
Plaintiff's forfeiture objection is overruled.
(Doc. 156 at 22, distinguishing King v. Taylor, 694
F.3d 650, 656 (6th Cir. 2012) and State Auto Ins. Co. v.
Thomas Landscaping & Constr., Inc., 494 Fed.Appx.
550, 554 (6th Cir. 2012)(affirming waiver on grounds that the
defendant's pro se Answer was never stricken). In short,
based upon the thorough analysis and rulings contained in
Judge Barrett's Order of March 31, 2018, none of the
three Salazar Defendants have consented to the jurisdiction
of this Court or waived their right to assert the affirmative
defense of this Court's lack of personal jurisdiction.
extent that Plaintiff may be arguing that the two corporate
entities lack the capacity to present any defense at all,
including but not limited to the affirmative defense of
personal jurisdiction, based upon their
“suspended” status in California, Judge
Barrett's recent Order also resolved that issue.
[T]he Court is persuaded that the proper course is to treat
these two corporations as “unincorporated associations,
” which - regardless of state law on capacity - may
“be sued” where enforcement of a federal right is
at issue. Because this Court is exercising its federal
question jurisdiction over the TCPA claim, and Rule
17(b)(3)(a) confers on Defendants 310 Network, Inc. and
NexInteractive, Inc. the capacity to present a defense, so
to[o] may they present a defense to the claims over which
this Court exercises supplemental jurisdiction.
(Doc. 156 at 13).
also argues that the Defendants waived the personal
jurisdiction defense when newly retained counsel filed a
Notice of Appearance on August 21, 2017. (See Doc. 103). In
his opposition to Defendants' motion to dismiss,
Plaintiff cites Gerber v. Riordan, 649 F.3d 514 (6th
Cir. 2011) to argue that a general Notice of Appearance by
counsel waives both service and the defense of personal
jurisdiction. In his Objections to the undersigned's
October 2017 R&R, Plaintiff also cited Gerber to
support his waiver argument, maintaining that, contrary to
Defendants' position, that case has not been
“abrogated.” (Doc. 123-1 at 20 and n.25).
Judge Barrett's March 31, 2018 Order does not
specifically discuss Gerber, the Court did cite
King v. Taylor, a post-Gerber case in which
the Sixth Circuit clarified that the mere filing of an
appearance is not sufficient to waive service. See
King, 694 F.3d at 656 n. 7. More importantly, Judge
Barrett unequivocally held that the Salazar Defendants had
not waived or forfeited their right to present a personal
jurisdiction defense to Plaintiff's Second Amended
Complaint. (See Docs. 109, 124). Judge Barrett's
rulings represent the law of the case on these issues. The
undersigned further finds persuasive the Defendants'
arguments that post-Gerber case law, including
Taylor and other lower court cases, have
appropriately rejected the broad interpretation of
Gerber advocated by Plaintiff. Additionally,
Gerber is factually distinguishable.
similar reasons, and based upon Judge Barrett's rejection
of the same argument, the undersigned rejects Plaintiff's
argument that the Defendants waived their personal
jurisdiction defense through conduct that gave the
“reasonable expectation” that they intended to
defend the case on the merits. (Accord Doc. 156 at
21-22). In short, I find no waiver on the record presented.
The Merits of Defendants' Motion To Dismiss: A Lack of
determined that the Salazar Defendants have neither consented
to personal jurisdiction in this Court nor waived their
ability to present that defense, the undersigned turns to the
merits of the Defendants' motion. The Defendants argue
that they do not transact business in Ohio and do not
contract to provide goods or services in this state.
plaintiff bears the burden of demonstrating that such
jurisdiction exists…. Additionally, in the face of a
properly supported motion for dismissal, the plaintiff may
not stand on his pleadings but must, by affidavit or
otherwise, set forth specific facts showing that the court
has jurisdiction.” Theunissen v. Matthews, 935
F.2d 1454, 1458 (6th Cir.1991)(internal citations omitted).
When the matter is resolved on written submissions alone, the
plaintiff will satisfy his burden if he can make a
“prima facie showing” of personal
jurisdiction. By contrast, when a pretrial-evidentiary
hearing is conducted, the preponderance-of-the-evidence
standard applies. Schneider v. Hardesty, 669 F.3d
693, 697 (6th Cir. 2012)(citing Serras v. First Tennessee
Bank National Association, 875 F.2d 1212, 1214 (6th
Cir.1989)). On the written record presented, and assuming
that the lower prima facie standard applies, the
undersigned recommends that the Defendants' motion be
granted, because all of the specific facts Lucas has alleged
“collectively fail to state a prima facie
case for jurisdiction.” Theunissen, 935 F.2d
grounds for the exercise of personal jurisdiction, Plaintiff
relies in part on Advanced Dermatology v. Adv-Care
Pharmacy, Inc., 2017 WL 5067576 (N.D. Ohio, 2017), a
recent unpublished TCPA case from the Northern District of
Ohio. In that case, the district court denied a Canadian
defendant's motion to dismiss a TCPA claim, where either
the defendant, or a third-party telemarketer on its behalf,
sent unwanted telemarketing faxes to Plaintiff's office
fax machine without his consent. Although the undersigned
finds Advanced Dermatology to be factually
distinguishable, its explanation of Ohio's long-arm
statute is helpful:
[U]nder Ohio law, “personal jurisdiction over
non-resident defendants is available only if (1) the long-arm
statute confers jurisdiction and (2) jurisdiction is proper
under the Federal Due Process Clause.” Conn v.
Zakharov, 667 F.3d 705, 711 (6th Cir. 2012). The
critical constitutional due process inquiry is whether the
defendant has sufficient “minimum contacts” with
the forum state so that the district court's exercise of
jurisdiction over it comports with “traditional notions
of fair play and substantial justice.”
International Shoe Co. v. Washington, 326 U.S. 310,
316 (1945). Depending on the type of minimum contacts in a
case, personal jurisdiction can either be general or
specific. CompuServe, Inc. v. Patterson, 89 F.3d
1257, 1263 (6th Cir. 1996); Reynolds v. Intern. Amateur
Athletic Ass'n, 23 F.3d 1110, 1116 (6th Cir. 1994).
General jurisdiction exists where a defendant's
“continuous and systematic” contacts with a forum
render the defendant amenable to suit in any lawsuit brought
against it in the forum. Specific jurisdiction exists if the
subject matter of the lawsuit arises out of or is related to
the defendant's contacts with the forum. See
Nationwide Mut. Ins. Co. v. Tryg Int'l Ins. Co.,
Ltd., 91 F.3d 790, 793 (6th Cir. 1996). In this case,
only specific jurisdiction is applicable. The Sixth Circuit
has consistently applied the following criteria to determine
whether specific jurisdiction exists:
First, the defendant must purposefully avail himself of the
privilege of acting in the forum state or causing a
consequence in the forum state. Second, the cause of action
must arise from the defendant's activities there.
Finally, the acts of the defendant or consequences caused by
the defendant must have a substantial enough connection ...