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

Filing 249

REPORT AND RECOMMENDATIONS - IT IS RECOMMENDED THAT: (1) Defendant Fred Accuardi's Answer to the Third Amended Complaint 198 should be STRICKEN; (2) The Clerk of Court should enter a default against Fred Accuardi under Fed. R. Civ. P. Rule 55( a) on all remanded claims, based upon his failure to appear. Objections to R&R due by 11/16/2020. Signed by Magistrate Judge Stephanie K. Bowman on 11/2/2020. (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
On September 8, 2020, the undersigned entered a Memorandum Opinion and
Order that granted in part and denied in part Plaintiff’s Motion seeking an Order to require
Defendant Fred Accuardi to enter an appearance and to participate in discovery, or
alternatively, to be held in default. (Doc. 247). Because Defendant has failed to comply
with this Court’s last Order, the undersigned now recommends that his answer be stricken
and that a default be entered against him.
I.

Background

Plaintiff filed suit against multiple Defendants more than eight years ago, seeking
to recover damages for alleged violations of state and federal laws relating to
telemarketing practices. (Doc. 1). Plaintiff filed a third amended complaint on October 31,
2013, and obtained default judgments against three of the identified defendants. (Docs.
51, 52, 130). On March 20, 2014, the undersigned recommended the dismissal of most
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claims against the remaining six Defendants, while allowing a TCPA claim to proceed
against Defendant Telephone Management Corporation (“TMC”) and Defendant Fred
Accuardi concerning two telephone calls made in September 2011. (Doc. 91 at 34). That
R&R was adopted by the presiding district judge in June 2017. (Doc. 119).
On June 6, 2018, the remaining TCPA claim was dismissed. (Docs. 214, 216).
Plaintiff appealed. The Sixth Circuit initially affirmed this Court’s judgment, (Doc. 221),
but subsequently granted in part a petition for rehearing, limited to the “disposition of
Lucas’s federal claim and any state claim deemed to be derivative of the federal [TCPA]
claim.” (Doc. 222 at 3). In its Order directing remand on the early dismissal of those
claims, the Sixth Circuit directed this Court to consider, in the first instance, the
applicability of two FCC decisions that had been filed after the 2014 R&R recommending
dismissal. (Id. at 9).
Following remand, the undersigned directed the six Defendants impacted by the
remand Order to file a new motion to address (at a minimum) all issues that were
referenced by the Sixth Circuit. (Doc. 227). No motions were filed. Instead, Plaintiff filed
an application seeking the Entry of Default against five Defendants,1 and defense counsel
moved to withdraw. (Docs. 233, 236, 239). The undersigned granted both motions.
(Docs. 242, 243). Thus, as of June 18, 2020, Fred Accuardi remains the lone Defendant
against whom no default has been entered on the reinstated vicarious liability claims.
On June 23, 2020, Plaintiff moved for an order requiring Fred Accuardi to enter an
appearance, to comply with Rule 26(f) and 26(a)(1), or alternatively, to enter a default

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Plaintiff’s withdrew his application as to Defendant Fred Accuardi because that Defendant had filed an
Answer for the sole TCPA claim that this Court initially permitted to proceed. (See Doc. 198).

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against Fred Accuardi. (Doc. 244). Based on an ambiguity in the record, the undersigned
partially granted and partially denied that motion in order to allow Defendant additional
time to clarify whether he intended to mount a pro se defense against the reinstated
claims. (See Doc. 247 at 9: “To eliminate any lingering uncertainty and provide the pro
se Defendant with all the process that is due, the Court will require Defendant Fred
Accuardi to file a status report within twenty (20) days that expressly either confirms or
denies his abandonment of all defenses in this case concerning the reinstated and
remanded vicarious liability claims.”). To the extent that Defendant might yet seek to
defend against the claims, the Court granted Plaintiff’s request that the Defendant be
directed to immediately participate in a Rule 26(f) conference. However, the Court
signaled that the entry of default followed by a default judgment was likely if the Defendant
refused to appear.
If Defendant is unwilling to appear in this Court to defend against the
reinstated vicarious liability claims, then this Court will assume that all facts
alleged by Plaintiff are admitted and that the legal claims that the Sixth
Circuit has deemed to be at least “consistent with” the more recent FCC
rulings state at least a plausible claim to support a judgment. When
considering whether a complaint states a claim in relation to
a default judgment, the court accepts the allegations in the complaint as
true.
(Id. at 8).

The Court also issued a strong warning to Defendant concerning the

suggestion in the record that he was refusing service by mail of documents sent to him
by the Plaintiff. (See id. at 6, citing Doc. 240 at 6; Doc. 239-1).
The Court served the September 8, 2020 Order on Defendant by both ordinary first
class mail and by certified mail. The first class mail was not returned, indicating receipt.
However, the certified mail was returned as “refused,” reflecting an intentional refusal to

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accept service. (Doc. 248). Defendant Accuardi also failed to file the written status report
within the time allotted by the Court, confirming the strong suggestion of his abandonment
of all defenses, as already noted in the record. The Court’s last Order made clear that an
entry of default would follow should Defendant Accuardi fail to comply with any portion of
the Order.
Defendant Fred Accuardi shall file a written status report within twenty (20)
days of the filing date of this Order If Defendant Fred Accuardi fails to
comply with any portion of this Order, this Court will consider him to have
abandoned all defenses to the reinstated vicarious liability claims and to be
willfully refusing to participate in discovery in this case, for which an
appropriate sanction would be the entry of default on the reinstated
claims.
(Doc. 247 at 10, ¶4).
II.

Analysis

At this point in time, the partial Answer that Fred Acuardi filed through prior counsel
on June 19, 2017, (Doc. 198), should be stricken as a sanction for his refusals to appear,
to respond to the reinstated claims on remand,2 and to comply with Rule 26(f) or this
Court’s last order directing him to do so. Rule 37(b)(2)(A) provides:
If a party …fails to obey an order to provide or permit discovery, including
an order under Rule 26(f), 35, or 37(a), the court where the action is
pending may issue further just orders. They may include the following:
***
(iii) striking pleadings in whole or in part.
Id. The Sixth Circuit has explained that prior to considering discovery sanctions, a trial
court should consider: (1) whether the party's failure to cooperate in discovery is due to
willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the opposing

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Defendant’s original Answer addressed only the single claim permitted to proceed, and did not address
the then-dismissed claims that have been reinstated on remand.

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party's failure to cooperate in discovery; (3) whether the sanctioned party was warned
that failure to cooperate could lead to severe sanctions; and (4) whether less drastic
sanctions were imposed or considered. Harmon v. CSX Transp., Inc., 110 F.3d 364, 36667 (6th Cir. 1997) (quoting Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842
F.2d 150, 153-155 (6th Cir. 1988)). Each of these factors favors striking Defendant’s
answer in this case.
Based upon Defendant’s failure to appear and the recommended striking of the
earlier Answer, the Clerk of Court also should enter a default. Although the entry of a
default often is a ministerial matter under Rule 55(a), it is included in this Report and
Recommendation because it so closely relates to the striking of the prior Answer.
III.

Conclusion and Recommendations

For the reasons discussed, IT IS RECOMMENDED THAT:
1. Defendant Fred Accuardi’s Answer to the Third Amended Complaint (Doc. 198)
should be STRICKEN;
2. The Clerk of Court should enter a default against Fred Accuardi under Rule
55(a), Fed. R. Civ. P., on all remanded claims, based upon his failure to appear.

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

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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 after
being served with a copy thereof. 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 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).

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