Lucas v. Telemarketer Calling From [phone] and Other Telephone Numbers

Filing 130

OPINION AND ORDER rejecting 121 Report and Recommendations, granting 87 Plaintiff's Motion for Default Judgment against Defendant All In One Service AIOS, LLC. Defendant All In One Service AIOS, LLC is directed to pay Plaintiff damages in the amount of $3,800.00, together with costs, with interest to be paid at the statutory rate until said judgment is satisfied. Further, Defendant All In One Service AIOS, LLC, and its officers, employees, agents and aliases, and all other pers ons acting directly or indirectly in concert with Defendant, are permanently enjoined from engaging in any unfair, deceptive, or unconscionable act or practice in violation of either Ohios Consumer Sales Protection Act, Ohio Rev. Code §§ 1345.01 et seq., or Ohios Telephone Sales Solicitation Act, Ohio Rev. Code §§ 4719.01 et seq., as well as the related provisions of the Ohio Administrative Code. Signed by Magistrate Judge Stephanie K. Bowman on 10/16/2014. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

VINCENT LUCAS,

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Plaintiff,

v.

TELEMARKETER CALLING FROM
[phone] AND OTHER
TELEPHONE NUMBERS, et al.,
Defendants.

Case No. 1:12-cv-00630

OPINION AND ORDER

This matter is before the Court on the August 13, 2014
Report

and

Recommendation

of

Magistrate

Judge

Stephanie

K.

Bowman (doc. 121), to which Plaintiff has objected (doc. 124).
For

the

reasons

that

follow,

the

Court

rejects

the

recommendation of the Magistrate Judge.
Plaintiff’s Third Amended Complaint (doc. 59) names nine
defendants,

six

of

whom

have

come

to

litigation as the “Accuardi Defendants”1.

1

be

known

as

in

this

The other three are

The Accuardi Defendants consist of three corporate entities and
three individuals, and their alleged relationship to one another
is detailed in our Opinion and Order docketed on August 5, 2014
(doc. 120). They have filed a motion to dismiss all claims
against them on the theory that they cannot be held vicariously
liable for calls made by telemarketers to whom they provide
telephone numbers (see doc. 70), which, with one small
exception, the Magistrate Judge has recommended we grant (see
doc. 91). Before the Court could issue its decision as to
whether to accept, reject or modify her recommendation,
Plaintiff filed a notice with the Clerk advising that he had
1

Qall Cord Philippines Ltd., Co., against whom a default judgment
has been entered (see docs. 51, 52), Edwin Adquilen Valbuena
Jr., d/b/a VICIdial, whose default has been entered by the Clerk
(see doc. 108), and All In One Service AIOS, LLC (“AIOS”), the
subject of the instant unopposed motion for default judgment
(doc. 87).

Plaintiff alleges that the latter three defendants

placed telemarketing calls to his residential telephone line in
violation of federal and state statutes.

With regard to AIOS,

Plaintiff seeks money damages in the amount of $3,800.00 and
injunctive relief (doc. 87 at 5-7 (PAGEID## 1315-1319)).
The Magistrate Judge reports that AIOS appears to have been
properly served in Florida (see doc. 78, 81), after which, upon
application by Plaintiff (doc. 82), the Clerk filed an Entry of
Default (doc. 84).

She recommends against granting Plaintiff’s

motion for default judgment on the authority of Charvat v. DFS
Services LLC, 781 F. Supp. 2d 588 (S.D. Ohio 2011).

In that

case, also involving alleged violations of the federal Telephone
Consumer Protection Act (“TCPA”), Judge Sargus decided to hold

filed with the Federal Communications Commission a “Petition for
Expedited Declaratory Ruling” on the vicarious liabililty issue.
He concomitantly filed a motion to stay the Accuardi Defendants’
motion to dismiss and asked this Court for a referral to the
FCC—under the primary jurisdiction doctrine—of the question
presented in his Petition (doc. 115). We granted Plaintiff’s
motion (see doc. 120). But as the Magistrate Judge recognized,
that ruling does not affect motions pending against any of the
other defendants.
2

in abeyance a motion for default judgment pending resolution of
the merits of the entire action:
Epixtar's default was entered by the Clerk on July 1,
2010 (Doc. 62), and [the plaintiff] Charvat subsequently
moved for a default judgment. However, as this case
involves multiple defendants, an entry of judgment against
Epixtar is not appropriate at this time. See, e.g., Frow v.
De La Vega, 82 U.S. 552 [] (1872); Kimberly v. Coastline
Coal Corp., No. 87-6199, 1988 WL 93305, at *3 (6th Cir.
Sept. 9, 1988) (per curiam) (“When a default is entered
against one defendant in a multi-defendant case, the
preferred practice is for the court to withhold granting a
default judgment until the trial of the action on the
merits against the remaining defendants. If plaintiff loses
on the merits, the complaint should then be dismissed
against both defaulting and non-defaulting defendants.”)
Accordingly, the Court will hold Charvat's motion for a
default judgment against Epixtar in abeyance pending
resolution of the merits of this action. At such time as
the merits are finally resolved, Charvat may move the Court
for permission to reactivate the default judgment motion.
Id. at 591 (emphasis added).

With due respect to our colleague

in the Eastern Division, we do not believe the same result is
required or appropriate here.

In Frow, which remains good law

despite its considerable age, there was an allegation of joint
fraud and conspiracy between all defendants.

A decree against

one operated as a decree against all, “[b]ut if the suit should
be decided against the complainant on the merits, the bill will
be dismissed as to all the defendants alike.”
(emphasis added).

82 U.S. at 554

While the defendants before Judge Sargus were

not quite so closely linked, Plaintiff Charvat alleged they all
violated the law in an identical way, by placing unsolicited
telemarketing calls to him—despite his request to be placed on
3

the

national

Do-Not-Call

credit card company.
situated.

registry—on

behalf

of

the

Discover

All defendants, therefore, were similarly

Here, however, there is a great divide between the

theories of liability vis-à-vis the Accuardi defendants and the
telemarketing defendants, such as AIOS, to whom they provide
telephone numbers.
may

not

be

held

telemarketers

A determination that the Accuardi defendants
vicariously

who

actually

liable

for

initiated

the

the

actions

allegedly

of

the

unlawful

calls, for example, will not create the conundrum anticipated by
Frow.

The “key question” we must consider now is “whether[,]

under

the

defendants

theory
must

be

of

the

complaint,

uniform.”

liability

Shanghai

of

Automation

all

the

Instrument

Co., Ltd. v. Kuei, 194 F. Supp. 2d 995, 1007 (N.D. Cal. 2001)
(footnote omitted) (emphasis added).

On the facts before us, it

clearly is not.
We disagree that a “preferred practice” in this Circuit
should,

or

must,

be

inferred

from

Kimberly.2

It

is

an

unpublished, per curiam opinion, and understandably so, as it
rectifies a series of missteps caused by virtue of the case
2

The Magistrate Judge cites three other unpublished cases that
have applied this “rule”, two of which also were authored by
Judge Sargus. See Alig-Mielcarek v Jackson, No. 2:11-cv-00255,
2013 WL 6000975 (S.D. Ohio Nov. 12, 2013) (Sargus, J.); Concheck
v. Barcroft, No. 2:10-cv-656, 2011 WL 3359612 (S.D. Ohio Aug. 3,
2011) (Sargus, J.). The third, an insurance declaratory
judgment action, was decided by our colleague Judge Marbley.
Penn-Star Ins. Co. v. Barr-Bros. Plastering Co., Inc., No. 2:10CV-587, 2011 WL 795062 (S.D. Ohio Feb. 28, 2011) (Marbley, J.).
4

being reassigned too often—albeit for legitimate reasons—at the
trial

court

level.

Still,

review

of

the

underlying

uncovers, again as in Frow, similarly-situated defendants.3

facts
But

even if this Court were satisfied that such an inference is
warranted, as Plaintiff aptly points out, deeming a practice
“preferred” does not mean that “a different practice can never
be used” (see doc. 124 at 1).
Fed. R. Civ. P. 54(b) provides that when multiple parties
are

involved,

a

trial

court

“may

direct

entry

of

a

final

judgment as to one or more, but fewer than all, parties only if
the court expressly determines that there is no just reason for
delay[]” (emphasis added).

We so find.

Cf. Broadcast Music,

Inc. v. Wheels, Inc., No. 1:07-cv-78, 2008 WL 1751522 (E.D.
Tenn.

Apr.

11,

2008)

(Mattice,

J.;

Lee,

M.J.).

The

Court

incorporates not only our discussion above, but also the fact
that if a judgment against AIOS is postponed, Plaintiff may lose
what little ability he has to collect against it.

For example,

a $626,000 judgment and a $3,500 bill of costs were levied and
taxed, respectively, against AIOS’s owner on August 27, 2012
and, to date, apparently neither has been satisfied.

See State

of Missouri, et al. v. Christian Serna, Case No. 1122-CC10695,

3

In this particular instance, two companies, Coastline Coal and
Howes Coal, were accused of failing to pay wages and overtime in
violation of the Fair Labor Standards Act and a common law
employment contract. See Kimberly, supra, 1988 WL 83305, at *1.
5

https://www.courts.mo.gov/casenet/cases/judgements.do
visited October 10, 2014).
risk,

and

the

interests

(last

Insolvency, therefore, is a genuine
of

justice

would

seem

to

dictate

allowing Plaintiff to begin enforcement proceedings sooner than
later.
Plaintiff

seeks

both

statutory

damages

and

injunctive

relief with regard to the second call he received from AIOS from
the

phone

number

(206)

496-0802

(doc.

59,

Third

Amended

Complaint ¶¶ 35-36, 40, 94 & at page 25 (Prayer for Relief ¶¶
1(c), 4)).4

Specifically, he asks the Court to award $3,000 in

federal statutory damages, computed as follows:

$1,500 (triple

damages)

of

for

a

willful

and

knowing

violation

the

TCPA’s

automated-call requirement (47 U.S.C. § 227(b)(3)) and $1,500
(triple damages) for a willful and knowing violation of the
TCPA’s Do-Not-Call list (47 U.S.C. § 227(c)(5)).
would

be

consistent

with

the

damages

we

Such an award

previously

against Defendant Qall Cord (see docs. 37, 51, 52).

awarded
He also

asks us to award $800 in state statutory damages, claiming four
distinct violations of the Ohio Consumer Sales Protection Act
4

Under the TCPA, an individual may bring a private right of
action once he “has received more than one telephone call within
any 12-month period by or on behalf of the same entity in
violation of the regulations prescribed under this
subsection[.]” See 47 U.S.C. § 227(c)(5) (emphasis added).
Plaintiff alleges that “each telemarketer [sued] originated at
least two telephone calls within a twelve month period” to his
residential landline. (See doc. 59, Third Amended Complaint ¶
40.)
6

(“OSCPA”) (Ohio Rev. Code § 1345.09(B)).

Based on the report of

the Magistrate Judge regarding telemarketing calls initiated by
Defendant Qall Cord, this Court previously found three separate
violations, awarding $600 per call in state statutory damages.
Plaintiff
raised

or

asks

us

to

considered

find
in

an

additional

this

Court’s

violation,

ruling

with

one

regard

not
to

Defendant Qall Cord or in Charvat v. NMP, LLC, 656 F.3d 440 (6th
Cir. 2011), the authority upon which the Magistrate Judge relied
in making her damages recommendation (see doc. 37).5

Plaintiff

asks that we increase the award by $200 to sanction AIOS for
failing to obtain a certification of registration from the Ohio

5

The Magistrate Judge relied upon the Sixth Circuit’s
interpretation of Ohio law as to when separate violations of the
TCPA are remediable under the OCSPA. See Charvat v. NMP, LLC,
656 F.3d 440, 450-52 (6th Cir. 2011). Key is whether the
regulations, although discrete, are nonetheless directed at
preventing the same harm. If so, multiple violations will
result in only a single compensable injury. Id. at 451-52
(citing Charvat v. Ryan, 168 Ohio App. 3d 78, 90-92, 2006-Ohio3705, 858 N.E.2d 845, 856-57, overruled on other grounds, 116
Ohio St. 3d 394, 2007-Ohio-6833, 879 N.E.2d 765). The three
separate injuries identified concerning the calls made by the
NMP defendants, and with regard to Defendant Qall Cord in this
litigation, were calls were placed to a number on the national
Do-Not-Call registry in violation of 16 C.F.R. §
310.4(b)(iii)(B); calls that did not disclose the identity of
the seller in violation of 16 C.F.R. § 310.4(d)(1), thus
preventing the called party from contacting the telemarketer to
avoid future calls; and calls that failed to disclose their
purpose was to effect a new sale in violation of 16 C.F.R. §
310.4(d)(2) and Ohio Admin. Code § 109:4-3-11(A)(1), thus
deceiving the caller about the true purpose of the call. See
doc. 37 at 10.
7

Attorney General6, as required by Ohio Rev. Code § 4719.02(A)7,
which, by the express terms of Ohio Rev. Code § 4719.148, is an
unfair or deceptive act or practice in violation of the OSCPA.9
He

argues

provides

that

Section

discrete

4719

consumer

identified in NMP, supra.
applicant

for

“telephone

extensive

and

obviously

serves

a

protections

separate

purpose

independent

of

and

those

It identifies the information an
solicitor”

designed

to

must

disclose,

ferret

out

which

is

companies

or

individuals associated with fraud-based activity in either the

6

Plaintiff has alleged that none of the named Defendants, AIOS
obviously included, registered in Ohio as telemarketers (see
doc. 59, Third Amended Complaint ¶ 48).
7
4719.02 Certificate of registration; application
(A) No person shall act as a telephone solicitor without first
having obtained a certificate of registration or registration
renewal from the attorney general under section 4719.03 of the
Revised Code.
8
4719.14 Consumer sales practices act applicable
A violation of section 4719.02, 4719.05, or 4719.06; division
(C),(D), or (E) of section 4719.07; section 4719.08; or division
(A) of section 4719.09 of the Revised Code is an unfair or
deceptive act or practice in violation of section 1345.02 of the
Revised Code.
(Emphasis added.)
A list of companies currently registered as telephone solicitors
under Ohio Rev. Code §§ 4719.01 et seq., the Telephone
Solicitation Sales Act, which includes a roll of pending
applicants, is available at
http://www.ohioattorneygeneral.gov/Individuals-andFamilies/Consumers/Telephone-Soliciters (last visited October
14, 2014). Defendant AIOS is not on that list, which was last
updated on September 2, 2014. Attached to Plaintiff’s instant
motion was the list current as of November 15, 2012 (doc. 87,
Exh. L); AIOS does not appear there either.
9

8

criminal

or

civil

arenas.

4719.02(B)(5),(7),(8).

See,

Moreover,

e.g.,

Ohio

Section

Rev.

4719.02(D)

Code

§

mandates

that a nonresident telemarketer engage an Ohio resident to act
as its statutory agent for service of process.

Although not as

complicated as with Defendant Valbueana—for either Plaintiff,
the

Magistrate

Judge

or

the

Clerk

of

this

Court10—without

question, service on Defendant AIOS would have been an easier
process had there been a statutory agent in the picture.

The

Court is satisfied that a failure to register with the attorney
general is indeed a separate injury, and mindful of the Ohio
General Assembly’s instruction that the provisions of the OSCPA
are “remedial in nature and shall be liberally construed[,]” see
Ohio Rev. Code § 4719.18, we conclude that Plaintiff’s argument
is well-taken.

Accordingly, he will be awarded state statutory

damages in the amount of $800 for four distinct violations of
the OSCPA.
We

turn

finally

to

Plaintiff’s

request

relief under Ohio Rev. Code § 4719.15(A).

for

injunctive

He reads the language

of the statute as requiring the Court to issue an injunction
upon finding a violation of the OSCPA.

We disagree that the

statute leaves the Court without discretion in this regard, as
Section

4719.15(A)

states

in

pertinent

part,

“Upon

[a

plaintiff’s] showing that the telephone solicitor or salesperson
10

See docs. 72, 76, 83, 90, 104-05.
9

has committed a violation . . . , the court shall grant an
injunction, temporary restraining order, or other appropriate
relief[]”

(emphasis

ours).

We

need

not

decide

the

issue,

however, because we believe injunctive relief, along with money
damages, is a suitable remedy here.
In

conclusion,

therefore,

the

Court

REJECTS

the

recommendation of the Magistrate Judge (doc. 121) and instead
GRANTS Plaintiff’s Motion for Default Judgment against Defendant
All In One Service AIOS, LLC (doc. 87).

Defendant All In One

Service AIOS, LLC is directed to pay Plaintiff damages in the
amount of $3,800.00, together with costs, with interest to be
paid at the statutory rate until said judgment is satisfied.
Further,

Defendant

All

In

One

Service

AIOS,

LLC,

and

its

officers, employees, agents and aliases, and all other persons
acting directly or indirectly in concert with Defendant, are
permanently enjoined from engaging in any unfair, deceptive, or
unconscionable act or practice in violation of either Ohio’s
Consumer Sales Protection Act, Ohio Rev. Code §§ 1345.01 et
seq., or Ohio’s Telephone Sales Solicitation Act, Ohio Rev. Code
§§ 4719.01 et seq., as well as the related provisions of the
Ohio Administrative Code.
SO ORDERED.
Dated:

October 16, 2014 s/S. Arthur Spiegel________________
S. Arthur Spiegel
United States Senior District Judge
10