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

Filing 214

REPORT AND RECOMMENDATIONS - IT IS RECOMMENDED THAT Plaintiff's remaining claims against the two remaining Defendants, concerning two calls made in September 2011, should be DISMISSED WITH PREJUDICE under Rule 41(a)(2). IT IS FURTHER RECOMMENDED THAT final judgment be entered in favor of the Defendants, and that this case be CLOSED. Objections to R&R due by 5/23/2018. Signed by Magistrate Judge Stephanie K. Bowman on 5/9/2018. (km)(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,

Case No. 1:12-cv-630
Plaintiff,

Black, J.
Bowman, M.J.

v.

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

REPORT AND RECOMMENDATION
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

1

Plaintiff has filed at least 8 lawsuits in this Court alone, all containing similar allegations of illegal
telemarketing practices. In addition to the above captioned case, see Case No. 1:11-cv-409 (closed),
Case No. 1:15-cv-108 (closed), Case No. 1:16-cv-790, Case No. 1:16-cv-1102, Case No. 1:16-cv-1127
(closed), Case No. 1:17-cv-47 (closed); Case No. 1:17-cv-374 (closed). Plaintiff also filed a
“miscellaneous” case, Case No. 1:17-mc-02, that was administratively closed by Magistrate Judge
Litkovitz as improperly opened because it related to an existing civil case. In addition, Plaintiff’s filings in
this Court allude to related litigation he has pursued in state court(s).

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
2

Once TMC was dissolved, the Court granted counsel’s motion to withdraw from representation of that
entity.
3
Among the claims rejected in the R&R were claims for “aiding and abetting” and “joint enterprise” liability,
for “common law” liability, and for liability under related Ohio statutes or the Ohio Consumer Sales
Practices Act, as well as claims for negligence, nuisance, invasion of privacy, and various claims for
injunctive relief. (See Doc. 166 at 2-3, summarizing Doc. 91).

2

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.

3

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 directed the undersigned to convene a
conference of the case “to discuss moving the case forward,” whether through courtfacilitated mediation or trial. (Id. at 5).
On April 17, 2018, based upon the Court’s March 29 Order prohibiting Plaintiff
from further amendment and in light of the evidence (dating to 2014) that neither
Defendant had physically placed the offending two telephone calls, Defendant Fred
Accuardi filed a motion for sanctions under 28 U.S.C. § 1927. Defendant asserts that
the statutory damages for each call, even if proven and trebled under the TCPA,
amount to only $1,500 per call and that Plaintiff previously refused an offer of $5,000 to
settle his claims against Defendant. 4 Defendant complains that he has “incurred tens of
thousands of dollars in legal fees to defend [this] matter,” and argues that Plaintiff has
“willfully and intentionally” driven up the costs of defense based on the excessive

4

In a written response in opposition to a prior motion for sanctions against the Accuardi Defendants, the
Defendants similarly argued that they had ‘incurred thousands of dollars in legal bills’ after Plaintiff
allegedly refused Defendants’ settlement offer of $5,000 to resolve what Defendants describe as claims
worth – at most - $7,600.” The undersigned described “[s]everal things…wrong” with Defendants’
response, before granting Plaintiff’s motion for discovery sanctions under Rule 37. (See Doc. 138).

4

number of motions and other documents filed in this case. (Doc. 212 at 1). The statute
under which the Defendant seeks sanctions states:
Any attorney or other person admitted to conduct cases in any court of the
United States or any Territory thereof who so multiplies the proceedings in
any case unreasonably and vexatiously may be required by the court to
satisfy personally the excess costs, expenses, and attorneys' fees
reasonably incurred because of such conduct.
Id.
On May 7, 2108, Plaintiff moved for an extension of time, until May 21, 2018, to
file his response to Defendants’ motion based upon his representation that he has
requested that Defendant withdraw the same motion under Rule 11, Fed. R. Civ. P. 5
Additionally, Plaintiff sought additional time due to his busy litigation schedule, since he
also has an objection due to another R&R in another case. On May 8, the undersigned
granted Plaintiff’s motion for an extension of his response time by notational order.
On April 25, 2018, the undersigned convened a telephonic status conference
pursuant to Judge Black’s Order.

Although no court reporter was present, Plaintiff

readily conceded during that telephonic status call that under this Court’s prior rulings
and the law of the case, no triable issues remain in this case because neither of the
identified Defendants was the “true caller” that placed the two offending telephone calls
in September 2011. (See Minute Entry dated 4/25/18, stating “Plaintiff conceded that
the remaining claims involve only two calls made or initiated by a non-party...
Thus…there is no issue for trial”). Plaintiff urged the Court to enter judgment in favor of

5

This is not the first time that Plaintiff has sought sanctions against the Defendants. (See Docs. 122, 133,
138, 165, 174, 174, 178). Plaintiff partially succeeded (twice) in obtaining discovery sanctions against
Defendants under Rule 37, (Doc. 138, 178), although other requests for sanctions under other theories
have been denied.

5

the Defendants, in order that Plaintiff can take an appeal to the Sixth Circuit Court of
Appeals. At the conclusion of the call, the parties agreed that Plaintiff would file a
statement of non-disputed facts or, preferably, a joint stipulation regarding the calls,
following which the Court would enter judgment. (Id).
II.

Rule 41 Dismissal of this Case

The undersigned construes Plaintiff’s oral motion to enter judgment so that he
may pursue an appeal, together with his proposed stipulation of fact, as a motion to
dismiss under Rule 41.
Regrettably, if unsurprisingly, the parties have not been able to agree on a “joint
stipulation regarding the calls.”

However, on May 2, 2018, Plaintiff tendered the

following “Statement of Facts” to this Court: “Fred Accuardi and Telephone
Management Corporation, Inc. did not physically place the telephone calls from 508475-1352 and 508-475-1394 that are the subject of this litigation.” Defendant Accuardi
tendered a separate version, which the undersigned finds no need to discuss.
The undersigned concludes that based upon the law of this case, particularly as
set forth in the March 2014 R&R, Plaintiff’s written proposed stipulation eliminates the
sole remaining TCPA claims for the two September 2011 calls allegedly placed to
Plaintiff’s residence. Plaintiff has never alleged that either of those calls were placed to
sell any direct product or service of TMC or of Defendant Accuardi. Plaintiff’s initial
pleadings were summarized as follows:
The essence of Plaintiff’s claims against all six [Accuardi-related]
Defendants is that they are engaged in the marketing and sale of
telephone numbers to telemarketers who engage in illegal practices,
despite Defendants’ knowledge that their customers (the telemarketers)
are engaged in illegal activity.

6

*********
Perhaps the singular most important fact in this case is what is not alleged
by Plaintiff [in his second amended complaint]. Notably, Plaintiff does not
allege that any of the three entity Defendants, or [the] three
individuals…are themselves engaged in telemarketing to Plaintiff’s home.
Rather, the basis of Plaintiff’s claims against all six Defendants rests on
theories of vicarious and contributory liability, including the Defendants’
allegedly “long history of aiding telemarketers” by permitting and
encouraging the use of Defendants’ services for illegal telemarketing
purposes. (Doc. 22 at 15). Plaintiff alleges that the entity Defendants
“knew that their telephone numbers were being used for telemarketing
calls that violate 47 U.S.C. §227(b)(1)(B) and 227(c).” (Doc. 20 at ¶50).
…Plaintiff has never alleged (and Defendants deny) that any of the
Defendants have personally placed telemarketing calls to his home.
(Doc. 91, quoting Doc. 37 at 5-7, summarizing Plaintiff’s second amended complaint).
Despite his failure to allege that either of the remaining Defendants “personally
placed telemarketing calls” in the first two versions of his complaint, Plaintiff filed a third
amended complaint that – in stark contrast to earlier pleadings – alleged precisely that
form of direct “telemarketer” liability. Thus, Plaintiff’s third amended complaint alleged
for the first time that:
TMC [alone] either originated the telemarketing calls that I received in
which 508-475-1352 and 508-475-1394 appeared on my Caller ID device,
or they provided substantial assistance and support to the telemarketer
who originated those calls knowing that the telemarketer was engaged in
acts or practices that violate the Telephone Consumer Protection Act and
rules promulgated thereunder.” (Doc. 59 at ¶34). This allegation marks a
clear departure from the allegations of Plaintiff’s prior two complaints,
which the Court previously noted did “not allege that any of the three entity
Defendants, or three individuals…are themselves engaged in
telemarketing to Plaintiff’s home.”
(Doc. 91 at 7-8).
In the March 2014 R&R, the undersigned rejected Plaintiff’s multitude of
alternative theories of liability under which he believed that one or both Defendants

7

could be held “vicariously” liable as a telemarketer/caller. (See Doc. 166 at 2-3,
summarizing Doc. 91). However, based upon the new allegations in Plaintiff’s third
amended complaint that the two calls “may” have “originated” from Defendant TMC, and
that Fred Accuardi was the alter ego of that Defendant, the undersigned recommended
that a claim that TMC and/or Accuardi acted as the “telemarketer” that “initiated” the two
calls be permitted to proceed.
To the extent that Plaintiff is alleging that TMC alone actually originated
telemarketing calls from two telephone numbers, Plaintiff is correct in
arguing that he has adequately pleaded a TCPA violation against that
single Defendant. This is not vicarious liability, but instead direct liability
under the TCPA, because TMC alone is accused of initiating a call as a
telemarketer itself. More specifically, the undersigned concludes that
paragraphs 22, 32, and 34 of the third amended complaint, construed
liberally, allege that TMC alone may have “originated” two calls received
by Plaintiff… in which Plaintiff received a pre-recorded message in
violation of 47 U.S.C. §227(b)
(Doc. 91 at 18, emphasis added; see also Doc. 91 at 33, holding that despite the
“somewhat conclusory nature” of Plaintiff’s allegations that Fred Accuardi was the alter
ego of TMC, the allegations were “(barely) sufficient to state a theory of derivative
personal liability against Defendant Fred Accuardi based upon Plaintiff’s alleged TCPA
claim against Defendant TMC alone.”)
Plaintiff has now unequivocally stipulated that neither Defendant physically
placed either call as a telemarketer, such that neither call “originated” from or was
“initiated” by the Defendants. Plaintiff seeks the entry of judgment so that he may
pursue an appeal. This Court can and should conclusively hold, based upon Plaintiff’s
tendered written stipulation, that neither of the Defendants can be held liable under the
TCPA for Plaintiff’s remaining claim that the Defendants are directly liable as

8

telemarketers under the TCPA.

In short, Plaintiff concedes that he cannot prove his

claim under this Court’s prior rulings, and that there are no genuine issues of fact or law
remaining for trial. Considering that no other theories of liability or claims remain, the
Defendants are entitled to entry of final judgment.
III.

Defendant’s Motion for Sanctions and Further Motion Practice

Defendant’s motion for statutory sanctions against Plaintiff is dispositive, but not
yet ripe. In his motion seeking an extension of response time until May 21, Plaintiff
strongly implies that Plaintiff intends to file an additional motion seeking additional Rule
11 sanctions against Defendant Accuardi, based upon the Defendant’s filing of his
motion.

There is little doubt that Plaintiff’s anticipated responsive motion will evolve

into a new round of extensive and expensive - in terms of litigation and judicial costs briefing by both parties.
It should be clear from the review of the record set forth herein that: (1) Plaintiff
became aware that Sale Technology and not either of the lone remaining Defendants
was the “true caller” (i.e., “initiated” the two offending September 2011 calls) sometime
in 2014, prior to the close of discovery; (2) notwithstanding knowledge of that fact,
Plaintiff continually opposed the legal conclusions and recommendations of the March
2014 R&R, which predictably foreclosed his lone remaining claims against the two
Defendants, until that R&R was finally adopted as the opinion of the Court on June 5,
2017; (3) Plaintiff continues to believe that the rulings of this Court have been erroneous
and that the novel theories on which his claims were based remain viable; (4) Plaintiff
seeks the entry of judgment solely so that he may appeal to the Sixth Circuit; and (5)

9

Defendant does not oppose the entry of judgment in his favor by this Court, but will
oppose any appeal taken.
Should the parties continue to brief the Defendant’s pending motion for
sanctions, and should Plaintiff file a further Rule 11 motion (or similar motion for
counter-sanctions), the undersigned will resolve whatever motions are pending to the
best of her abilities, assuming that such post-judgment motions remain referred to her.
At the same time, and fully recognizing that this advice is likely to fall upon deaf ears,
the undersigned would implore both parties to carefully consider the continued
“scorched earth” policies of pursuing further motion practice in light of the recommended
dismissal of Plaintiff’s remaining claims against the two Defendants.
IV.

Conclusion and Recommendation

For the reasons stated herein, and in light of the unique and extensive history of
this case, IT IS RECOMMENDED THAT Plaintiff’s remaining claims against the two
remaining Defendants, concerning two calls made in September 2011, should be
DISMISSED

WITH

PREJUDICE

under

Rule

41(a)(2).

IT

IS

FURTHER

RECOMMENDED THAT final judgment be entered in favor of the Defendants, and that
this case be CLOSED.

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

VINCENT LUCAS,

Case No. 1:12-cv-630
Plaintiff,

Black, J.
Bowman, M.J.

v.

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

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
Objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All Objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the Objections.

A party shall respond to an opponent’s Objections within

FOURTEEN (14) DAYS after being served with a copy of those Objections. Failure to
make Objections in accordance with this procedure may forfeit rights on appeal. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.
1981).

11