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

Filing 209

DECISION AND ENTRY ADOPTING IN PART 206 REPORT AND RECOMMENDATIONS. Plaintiff's motion to amend the complaint 199 is DENIED. Plaintiff's request for further sanctions against Defendants 203 is DENIED. Signed by Judge Timothy S. Black on 3/29/18. (sct)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
VINCENT LUCAS,
Plaintiff,
vs.
TELEMARKETER CALLING FROM
[phone] AND OTHER
TELEPHONE NUMBERS, et al.,
Defendants.

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Case No. 1:12-cv-630
Judge Timothy S. Black
Magistrate Judge Stephanie K. Bowman

DECISION AND ENTRY
ADOPTING IN PART THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 206)
This case is before the Court pursuant to the Order of General Reference to United
States Magistrate Judge Stephanie K. Bowman. Pursuant to such reference, the
Magistrate Judge reviewed the pleadings filed with this Court and, on October 26, 2017,
submitted a Report and Recommendations (R&R). (Doc. 206). 1 Plaintiff filed
objections on November 9, 2017. (Doc. 207).
After reviewing the R&R and Plaintiff’s objections, this Court concurs with the
Magistrate Judge’s conclusion that Plaintiff’s motion for leave to file a fourth amended
complaint should be denied for procedural reasons. 2 Although Fed. R. Civ. P. 15(a)
requires that leave to amend “shall be freely given when justice so requires,” a review of
the circumstances leading to this amendment causes the Court to conclude that justice
1

A brief background on the procedural history of this case can be found in the R&R. (Doc. 206,
at 2–7).
2

As noted in the R&R, the Magistrate Judge had the authority to simply issue an Order denying
the motion for leave to amend for procedural reasons, as that would fall within the scope of the
procedural referral in this case. (Doc. 206, at 9 n. 8). However, as the Magistrate Judge chose to
issue a Report and Recommendation on that issue, the Court reviews the issue de novo.
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clearly does not require permitting an additional amendment. Defendants would be
substantially prejudiced by this new filing, which constitutes undue delay. Plaintiff’s
proposed fourth amended complaint is heavily based on legal principles stated in an FCC
declaratory ruling issued July 10, 2015 that Plaintiff argues supports his claim that
Defendants can be held liable for various violations of the Federal Telephone Consumer
Protection Act, Ohio Telemarketing Act, and Ohio Consumer Sales Practices Act. (Doc.
207, at 6). However, his motion to file a fourth amended complaint was not filed until
July 12, 2017—two years after the allegedly impactful FCC declaratory ruling and more
than four years after his third amended complaint was filed. (Doc. 199). While delay
itself is not a sufficient reason to deny a motion for leave to amend, excessive delay may
be considered as a factor in finding that leave to amend a complaint should be denied,
along with bad faith, repeated failure to cure deficiencies in the complaint, undue
prejudice to the opposing party, and futility of the amendment. See Forman v. Davis, 371
U.S. 178, 182 (1962).
Plaintiff argues that it would have been illogical to expect him to amend his
complaint to reflect the 2015 FCC ruling earlier than now because a ruling on
Defendant’s motion to dismiss Plaintiff’s third amended complaint was held in abeyance
from August 5, 2014 to June 5, 2017 while a petition for a declaratory FCC ruling filed
by Plaintiff which could have been pertinent to this case was pending. 3 However, an
analysis of the docket indicates that Plaintiff was an extremely active filer in this case
even while his FCC petition was being reviewed up until the Court issued a complete stay
3

That petition has not received a ruling to this day. This Court reopened the case on June 5,
2017 after determining that indefinitely waiting on an FCC decision that may never come was
inappropriate. (Doc. 195).
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on the case on August 20, 2015, more than a month after the 2015 FCC ruling. (Doc.
178). Plaintiff made several filings throughout the abeyance, including various motions
for sanctions and motions related to discovery as well as regular status reports regarding
his pending FCC petition. It is clear from the docket that Plaintiff has consistently
remained an active advocate in this case.
Plaintiff claims that “[i]f that R&R [recommending denial of the third amended
complaint] were rejected, the complaint would not need to be amended.” (Doc. 207, at
3). This argument lacks merit. Plaintiff was aware that the Magistrate Judge had
recommended dismissal of several claims from the third amended complaint as early as
March 20, 2014. (Doc. 91). If, as Plaintiff now argues, an FCC declaratory ruling issued
July 10, 2015 had “dramatically expanded the circumstances under which someone other
than a physical caller may be held liable by the TCPA” (Doc. 199, at 3) and accordingly
given Plaintiff additional grounds to support his claims, Plaintiff, who has been actively
participating in this litigation for years regardless of the abeyance, should have made a
filing amending his complaint to add these grounds for relief. For Plaintiff to say that
informing the Court and Defendants of additional grounds for relief was only necessary
in the event that his previous claims were dismissed smacks of gamesmanship rather than
a good-faith effort to put Defendants on notice of the legal basis for the claims against
them.
Defendants are clearly prejudiced by Plaintiff’s attempt to file a fourth amended
complaint. Several defendants who were dismissed from the case by this Court’s
previous Order (see Doc. 195) would be added back into the case by the proposed fourth
amended complaint. (Doc. 199-1, at 1). These defendants will have to incur additional
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significant time and expense in defending the new claims and revised legal basis for those
claims raised in the new complaint. Defendants could have been put on notice of
Plaintiff’s view that the 2015 FCC Declaratory ruling provided support for his claims
more than two years ago, which could have dramatically changed the parties’ litigation
strategy. Under these circumstances, the Court concurs with the R&R that the extreme
prejudice caused to Defendants by a fourth amended complaint at this stage of the
litigation is too great to grant Plaintiff’s motion. This Court accordingly adopts that
portion of the R&R recommending denial of Plaintiff’s motion for leave to amend for
procedural reasons.
The R&R also recommended in the alternative that Plaintiff’s motion for leave to
amend his complaint be denied for substantive reasons, as the proposed amendment
would be futile. (Doc. 206, at 9–14). This Court, having already ruled that the motion
should be dismissed for procedural reasons, need not and does not address this portion of
the R&R (hence this Court adopts the R&R in part only).
This has been a long and contentious case, with over 200 filings in over five years,
and vigorous advocacy from both sides, while being unable to progress beyond the filing
of complaints and motions to dismiss. It is time for the remaining claims to progress in a
more substantive fashion. The Court agrees with the Magistrate Judge’s conclusion that
this case should be “brought to a final conclusion at the earliest opportunity.” (Doc. 206,
at 14). Whether that occurs through a voluntary resolution of the parties or through trial
is not the decision of this Court. However, the claims at this point are set, and it is time
to get on with it.
Accordingly, for the reasons stated above,
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1) Plaintiff’s motion to amend the complaint (Doc. 199) is DENIED;
2) Plaintiff’s request for further sanctions against Defendants (Doc. 203) is
DENIED;
3) The Magistrate Judge shall call a conference of the remaining parties in this
case at her convenience to discuss moving the case forward. If the parties at
that conference cannot consent to court-facilitated mediation or trial before the
Magistrate Judge pursuant to 28 U.S.C. §636(c), this Court at that time will
schedule the remaining claims for trial.
IT IS SO ORDERED.
Date: 3/29/18

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

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