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Lucas v. Telemarketer Calling From (407) 476-5680

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

May 9, 2018


          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] 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, [2] 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.

         I. Background

         In the 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, [3] the undersigned specifically rejected every theory of liability under state law, as well as all other federal theories of liability.

         Evidence 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)).

         A few 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).

         In an 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).

         Finally, 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.

         On 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 ...

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