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

Filing 150

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 139 Report and Recommendation. The Court GRANTS Plaintiff's Unopposed Motion for Default Judgment against Defendant Edwin Adquilen Valbuena Jr. 125 . Defendant Edwin Adquilen Valbuena Jr. is dir ected to pay Plaintiff damages in the amount of $15,200.00, together with costs, with interest to be paid at the statutory rate until said judgment is satisfied. Further, Defendant Edwin Adquilen Valbuena Jr. and his employees, agents and alias es, and all other persons acting directly or indirectly in concert with him, 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. Signed by Judge S Arthur Spiegel on 12/9/2014. (km1)(This document has been sent by the Clerks Office by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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 November 18, 2014
Report

and

Recommendation

of

Magistrate

Judge

Stephanie

Bowman (doc. 139), to which there has been no objection.

K.
For

the reasons that follow, the Court accepts 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. and All In One Service AIOS, LLC,
against whom default judgments have been entered (see docs. 51,
52 & 130, 131, respectively), and Edwin Adquilen Valbuena Jr.,
d/b/a VICIdial, the subject of the instant unopposed motion for
default judgment (doc. 125).

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 Defendant Valbuena, Plaintiff seeks money damages in
the

amount

of

$15,200.00

and

injunctive

relief

(id.

at

3-6

(PAGEID ##: 1819-1821)).
As

with

Defendant

Qall

Cord,

Plaintiff

sought

leave

to

serve Defendant Valbuena by e-mail under Fed. R. Civ. P. 4(f)(3)
in January 20142 (see doc. 83).

The Magistrate Judge granted

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 has
recognized (see doc. 121 at 2), that ruling does not affect
motions pending against any of the other defendants.
2
The Clerk had previously attempted service by international mail
on November 20, 2013 (see docs. 68, 71). As of January 15,
2014, however, nothing had been docketed to indicate that
service had been perfected, thus prompting Plaintiff’s motion to
serve Defendant Valbuena by e-mail (see doc. 83 at 2). The
envelope containing the Summons and the Third Amended Complaint
was not returned to the Clerk until May 5, 2014. It apparently
had arrived in the Philippines on November 28, 2013 and delivery
was attempted the following December 7. The hand-written
notation “Moved Out” appears on the envelope, as does the stamp
“Moved, Left No Address[.]” See doc. 104.
2

Plaintiff’s motion and very specifically instructed how the emails were to be worded, to what address they should be sent and
by whom (the Clerk and another person designated by Plaintiff),
and

what

steps

to

take

in

the

event

of

an

e-mail

delivery

failure notification (also known as an e-mail “bounce” message)
(doc. 90 at 4).

Thereafter, the Clerk sent the two e-mails it

was directed to send by the Magistrate Judge; no e-mail delivery
failure

notifications

03/21/2014).

occurred

(see

docket

entry

dated

Likewise, the person designated by Plaintiff also

sent an e-mail according to the Court’s instruction; no e-mail
delivery failure notification occurred in this instance either
(see doc. 105).

With service thus perfected, Plaintiff made

application to the Clerk for an entry of default pursuant to
Fed. R. Civ. P. 55(a) (doc. 106).
docketed the next day (doc. 108).
the

instant

motion

for

default

An Entry of Default was
Plaintiff ultimately filed
judgment

against

Defendant

Valbuena on September 5, 2014 (doc. 125).
Plaintiff

seeks

both

statutory

damages

and

injunctive

relief with regard to the four pre-recorded calls he received
from

Defendant

253-382-9903,

Valbuena

from

503-902-8480

the

and

phone

numbers

503-902-8479

253-382-9908,

(doc.

59,

Third

Amended Complaint ¶¶ 37-39, 94 & at page 25 (Prayer for Relief
¶¶ 1(d), 5)).
per

call

in

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

statutory

damages,
3

computed

as

follows:

$1,500 (triple damages) for a willful and knowing violation of
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)).

Such an

award would be consistent with the damages we previously awarded
against both Defendants Qall Cord and AIOS (see docs. 37, 51, 52
& 130, 131, respectively).

He also asks us to award $800 per

call

damages,

in

state

statutory

claiming

four

distinct

violations of the Ohio Consumer Sales Protection Act (“OSCPA”)
(Ohio

Rev.

Code

§

1345.09(B)).

Such

an

award

would

be

consistent with the damages we most recently awarded against
Defendant AIOS (see docs. 130, 131), which we find particularly
suitable in this instance.

The additional sanction3 sought here,

3

In making her damages recommendation with regard to Defendant
Qall Cord, 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 by the Magistrate Judge with regard to
Defendant Qall Cord earlier 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
4

and previously against Defendant AIOS (but not Defendant Qall
Cord),

concerns

a

failure

to

obtain

a

certificate

of

registration from the Ohio Attorney General, as required by Ohio
Rev. Code § 4719.02(A), which, by the express terms of Ohio Rev.
Code § 4719.14, is an unfair or deceptive act or practice in
violation
discrete

of

the

consumer

OSCPA.4

Section

protections,

4719

among

provides

them

a

a

number

mandate

that

of
a

nonresident telemarketer engage an Ohio resident to act as its
statutory agent for service of process.
4719.02(D).

See Ohio Rev. Code §

Had a statutory agent been in the picture vis-à-vis

Defendant Valbuena, the extraordinary and complicated process in
which Plaintiff, the Magistrate Judge and the Clerk of this
Court

engaged

avoided.

to

perfect

service

upon

him

would

have

been

Accordingly, for each of the four calls, Plaintiff

will be awarded state statutory damages in the amount of $800
for four distinct violations of the OSCPA.

The Court also finds

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. We adopted this analysis regarding our
damages award against Defendant AIOS and agreed with Plaintiff
that an additional fourth violation existed. See doc. 130 at 69.
4
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 December
8, 2014). Defendant Valbuena is not on that list, which was last
updated on December 1, 2014.
5

that injunctive relief under Ohio Rev. Code § 4719.15(A), along
with money damages, is warranted.

Although Defendant Valbuena

apparently resides in the Republic of the Philippines, he has
business connections with at least three U.S.-based companies:
VICIDial in Florida, Digium, Inc. in Alabama and voip-info.org
in California (see doc. 125 at 4-5).
Finally, we note that, when multiple parties are involved,
Fed. R. Civ. P. 54(b) provides that 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).

For the reasons set

forth in our Opinion and Order granting default judgment against
Defendant AIOS (see doc. 130 at 2-5), we so find.
conclusion,
Magistrate
Motion

the

Court

Judge

(doc.

for

Default

ACCEPTS
139)

Judgment

Valbuena Jr. (doc. 125).
is

directed

to

pay

and

the

recommendation

GRANTS

against

Thus, and in

Plaintiff’s

Defendant

of

the

Unopposed

Edwin

Adquilen

Defendant Edwin Adquilen Valbuena Jr.

Plaintiff

damages

in

the

amount

of

$15,200.00, together with costs, with interest to be paid at the
statutory

rate

until

said

judgment

is

satisfied.

Further,

Defendant Edwin Adquilen Valbuena Jr. and his employees, agents
and aliases, and all other persons acting directly or indirectly
in concert with him, are permanently enjoined from engaging in
any

unfair,

deceptive,

or

unconscionable
6

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:

December 9, 2014 s/S. Arthur Spiegel________________
S. Arthur Spiegel
United States Senior District Judge

7