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

Filing 186

DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 179) AND OVERRULING OBJECTIONS TO THE MEMORANDUM ORDER OF THE MAGISTRATE JUDGE (Doc. 181). Signed by Judge Timothy S. Black on 11/6/2015. (jlw)(This document has been sent 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,
Plaintiff,
v.
TELEMARKETER CALLING FROM
407 (476-5680) AND OTHER
TELEPHONE NUMBERS, et al.,
Defendants.

: Case No. 1:12-cv-630
:
: Judge Timothy S. Black
: Magistrate Judge Stephanie K. Bowman
:
:
:
:
:
:
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DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 179) AND
OVERRULING OBJECTIONS TO THE MEMORANDUM ORDER
OF THE MAGISTRATE JUDGE (Doc. 181)
This case is before the Court pursuant to the Order of General Reference in the
United States District Court for the Southern District of Ohio Western Division to United
States Magistrate Judge Stephanie K. Bowman.

Pursuant to such reference, the

Magistrate Judge reviewed the filings with this Court and, on August 20, 2015, submitted
a Report and Recommendation (Doc. 179) in relation to Plaintiff’s motion for contempt
and default judgment, and any other dispositive sanctions sought in Plaintiff’s motion for
sanctions (Doc. 175). The Magistrate Judge addressed the non-dispositive portion of
Plaintiff’s motion for sanctions in a Memorandum Order filed the same day. (Doc. 178).
Plaintiff filed objections to the Report and Recommendation and Memorandum Order
(Doc. 181), and Defendants F. Antone Accuardi, Fred Accuardi, Steve Hamilton,

International Telephone Corporation, Pacific Telecom Communications Group, and
Telephone Management Corporation (“Defendants”) responded. 1
As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo all
of the filings in this matter.

Upon consideration of the foregoing, the Court does

determine that such Report and Recommendation should be and is hereby adopted in its
entirety; and Plaintiff’s objections to the Report and Recommendation are overruled.
Plaintiff’s objections to the Memorandum Order are likewise overruled. Accordingly:
1.

The Report and Recommendation (Doc. 179) is ADOPTED;

2.

Plaintiff’s motion for contempt and default judgment, and any other
dispositive sanctions sought in Plaintiff’s motion (Doc. 175) is DENIED;
and

3.

Plaintiff’s Objections to the Memorandum Order (Doc. 181) are
OVERRULED.

IT IS SO ORDERED.
Date: 11/6/15

1

s/ Timothy S. Black
Timothy S. Black
United States District Judge

Plaintiff’s objections are not well taken.

Plaintiff’s arguments were fully addressed in the
Magistrate Judge’s Memorandum Order (Doc. 178) and this Court adopts the Magistrate Judge’s
reasoning as explained by her. The entry of default judgment as a discovery sanction is a draconian
sanction, warranted in only the most egregious circumstances. See Thurmond v. Wayne, 447 Fed. App’x.
643, 2011 WL 2270901, at *4 (6th Cir. June 10, 2011). Similarly, the drastic nature of contempt of court
sanctions “dictates that such judicial powers be used only in clear and urgent instances.” Springfield
Bank v. Caserta, 10 B.R. 57, 59 (S.D. Ohio Mar. 4, 1981). Here, as noted by the Magistrate Judge, it is
still not entirely clear what responsive documents existed in 2012 in PacTel’s possession. Plaintiff,
however, subsequently discovered the relationship between ITC and PacTel through other means. The
delay in discovery of the information had no impact at all on the course of the litigation. As a result, the
imposition of such drastic sanctions is not appropriate here. And because it is not clear what responsive
documents existed in PacTel’s possession, the Court cannot find that Defendants knowingly made false
statements to the Court.

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