United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge
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. On March 20, 2014, the
undersigned recommended the dismissal of multiple claims in a
Report and Recommendation (“R&R”), the
disposition of which was initially stayed. (Docs. 91, 120).
Although the stay lasted for more than three years, the
R&R was fully adopted on June 5, 2017. (Doc. 195).
Therefore, 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,
“initiated” just two telephone calls to Plaintiff
on September 7 and 9, 2011 in violation of the Telephone
Consumer Protection Act (“TCPA”). For the reasons
that follow, the undersigned now RECOMMENDS THAT THIS CASE BE
DISMISSED in lieu of trial.
March 2014 R&R that was eventually adopted by the Court,
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,  the undersigned specifically rejected
every theory of liability under state law, as well as all
other federal theories of liability.
uncovered at the end of discovery strongly suggested that a
different entity than either of the identified Defendants - a
nonparty known as Sale Technology - had actually initiated
the two calls. Seeking sanctions for a tardy discovery
disclosure, Plaintiff informed the Court that evidence that
neither of the identified Defendants had made the two
offending calls was first produced on approximatley April 8,
2014, shortly after the March 2014 R&R was filed. (Doc.
122 at 3-4). Based upon that revelation, on November 18, 2014
the undersigned first accurately predicted the demise of this
case. “Plaintiff concedes that if his objections are
overruled and the R&R is eventually adopted, and if
Defendants further can prove that TMC was not the caller,
then he will no longer be able to state a TCPA claim against
TMC alone and/or Fred Accuardi as a
“telemarketer” for the reasons expressed in the
March R&R.” (Doc. 138, Order at 3; see
also Doc 178 at 2 (same)).
months later on February 26, 2015, the undersigned entered a
Memorandum Order that, in addition to ruling on several
motions, again pointed out 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).
August 2015 Order, the undersigned reiterated:
The only issue remaining in this case - absent rejection of
the pending [March 2014] 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.
(Doc. 178 at 14-15).
in the most recent R&R dated October 26, 2017, I
reiterated once again:
Thus, as of June 5, 2017, only Plaintiff's limited TCPA
claims concerning two calls allegedly made in September 2011
remain. The only Defendants that remain are TMC [dissolved]
and Fred Accuardi. No one disputes that based on the present
posture of this case, if the evidence shows that the
non-party Sale Technology made the two calls rather than TMC
and/or Accuardi, then neither of the remaining Defendants can
be held liable as the “true caller.”
(Doc. 206 at 6-7). The October 2017 R&R recommended
denying Plaintiff's motion for leave to file a fourth
amended complaint, primarily on procedural grounds, but
alternatively on the merits.
March 29, 2018, the presiding district judge adopted the
October 2017 R&R in part, denying Plaintiff leave to file
a fourth amended complaint on procedural grounds, but finding
no need to reach the alternative recommendation to deny leave
to amend on the merits. (Doc. 209). Noting that “[t]his
has been a long and contentious case, with over 200 filings
in over five years, ” the Court emphasized the
undersigned's conclusion that this case should “be
brought to a final conclusion at the earliest
opportunity.” (Doc. 209 at 4, quoting Doc. 206 at 14).
In an attempt to encourage final resolution of the extremely
limited remaining claims, Judge Black ...