Lucas v. Telemarketer Calling From (407) 476-5680 and Other Telephone Numbers
Filing
85
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 58 Report and Recommendation, denying as moot 35 Motion to Dismiss filed by Defendant Telephone Management Corporation, denying 41 Motion for Summary Judgment filed by Plaintiff Vincent Lucas. Signed by Judge S Arthur Spiegel on 1/23/2014. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
VINCENT LUCAS,
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:
:
:
:
:
:
:
:
:
:
:
Plaintiff,
vs.
TELEMARKETER CALLING FROM
(407) 476-5680 AND OTHER
TELEPHONE NUMBERS, et al.,
Defendants.
Case No. 1:12-cv-00630
OPINION AND ORDER
This matter is before the Court on the October 31, 2013
Report
and
Recommendation
Bowman (doc. 58).
dispositive
of
Magistrate
Judge
Stephanie
K.
Said Report and Recommendation addresses two
motions,
namely
the
Motion
to
Dismiss
filed
by
Defendants F. Antone Accuardi, Fred Accuardi, Steve Hamilton,
International
Telephone
Communications
Group,
and
Corporation,
Telephone
Pacific
Management
Telecom
Corporation
(hereinafter “Accuardi Defendants”) (doc. 35) and Plaintiff’s
Motion for Summary Judgment (doc. 41).
have
objected
with
regard
to
to
the
their
The Accuardi Defendants
Magistrate
Judge’s
recommended
Motion
Dismiss
(doc.
to
69),
decision
to
which
Plaintiff has responded (doc. 75).
Conversely, Plaintiff has
objected
recommended
to
the
Magistrate
Judge’s
1
decision
with
regard to his Motion for Summary Judgment (doc. 67), to which
the Accuardi Defendants have filed a reply (doc. 74).
We
turn
first
to
the
Motion
to
Dismiss
filed
by
the
Accuardi Defendants (doc. 35) in response to Plaintiff’s Second
Amended
Complaint
(doc.
20).
The
Magistrate
Judge
has
recommended that it be denied as moot inasmuch as Plaintiff was
given
leave
to,
and
subsequently
did,
file
a
Third
Amended
Complaint that purportedly addresses the issues raised by the
Accuardi Defendants in their motion.
She noted that, “[t]o the
extent that Defendants disagree with Plaintiff’s position that
the third amended complaint cures any prior deficiencies in the
claims against them, they remain free to file a new motion to
dismiss, either in addition to or in lieu of filing an answer to
that complaint” (doc. 58 at 5).
Plaintiff was given leave to
file a third amended complaint in a Memorandum Order issued the
same day as the Report and Recommendation currently under review
(see doc. 57).
In support of her decision, the Magistrate Judge
observed
Plaintiff’s
that
motion
was
unopposed.
Although
Plaintiff had represented in his motion that counsel for the
Accuardi Defendants indicated that her clients had instructed
her
to
“vigorously
oppose”
it
(see
doc.
53
at
1),
no
such
pleading ever was filed by her, and, as the Magistrate Judge
correctly stated, “the time for doing so has long expired” (id.
at 2).
2
The Accuardi Defendants object to the Magistrate Judge’s
decision
granting
Plaintiff
leave
to
file
a
third
amended
complaint, stating, without elaboration, that their failure to
oppose
was
“[d]ue
to
a
clerical
error” (see doc. 69 at 1).
and
technologically
related
Plaintiff responds by attaching to
his memorandum a copy of the e-mail exchanges between himself
and opposing counsel concerning his request for her consent to
file his motion to amend as well as his confirmation of service
through the Clerk of Court’s CM-ECF system once he did file same
(see doc. 75, Exhibits A and B).
Defendants
offers
no
satisfactory
Counsel for the Accuradi
excuse
for
her
failure
to
oppose.
Under
Fed.
R.
Civ.
P.
72(a),
an
order
issued
by
a
Magistrate Judge regarding a non-dispositive matter may be set
aside only if it “is clearly erroneous or contrary to law.”
Magistrate Judge Bowman’s Memorandum Order, in which she grants
Plaintiff
leave
to
amend,
is
neither.
Thus,
the
Accuardi
Defendants’ objection is overruled and the Magistrate Judge’s
Order
remains
in
effect.
Having
thus
ruled,
we
proceed
to
accept, affirm and adopt her recommended decision, which we have
reviewed de novo under Fed. R. Civ. P. 72(b), to deny as moot
the Accuardi Defendants’ Motion to Dismiss.
Judge’s
recommendation
foreshadowed,
the
As the Magistrate
Accuardi
Defendants
filed a Motion to Dismiss Plaintiff’s Third Amended Complaint
3
(see doc. 70) at the same time they filed the objection we have
just considered and overruled.
They clearly will suffer no
prejudice from our adoption of this recommended decision and we
believe
declines
it
to
appropriate
under
the
consider
sanctions
circumstances.
under
Fed.
R.
The
Civ.
Court
P.
11,
however, as Plaintiff invites.
We turn next to the Motion for Summary Judgment filed by
Plaintiff seeking judgment as a matter of law on the issue of
whether his “acceptance of the offer to cure under Ohio Revised
Code § 1345.092 is a binding, final resolution of the claims
under Ohio law against” the Accuardi Defendants (doc. 41 at 1).
The
Magistrate
Judge
has
recommended
that
it
be
denied.
Plaintiff has objected to her recommendation (doc. 67), and so
we review it de novo pursuant to Fed. R. Civ. P. 72(b).
As
reported
by
the
Magistrate
Judge,
the
Ohio
General
Assembly enacted a new provision to its Consumer Sales Practices
Act (“OCSPA”), with an effective date of July 3, 2012.
This
provision allows a “supplier” who is sued by a “consumer” under
the OCSPA to make a “cure offer” to resolve the dispute.
§ 1345.092(A).
O.R.C.
The cure offer must be delivered by certified
mail, id., and include both of the following two provisions:
(1) Language that clearly explains the resolution being
offered by the supplier consisting of the following
separate components:
4
(a) A supplier’s remedy that consists solely of monetary
compensation to resolve alleged violations of this chapter;
(b) Reasonable attorney’s fees that consist of legal fees
necessary or reasonably related to the filing of the
initial complaint, not to exceed two thousand five hundred
dollars;
(c) Court costs incurred by the consumer that are related
to the filing of the initial complaint;
(2) A prominent notice that clearly and conspicuously
contains the following disclosure in substantially the
following form:
NOTICE: THIS LETTER INCLUDES A “CURE OFFER” THAT IS BEING
OFFERED TO SETTLE ALL ALLEGED VIOLATIONS OF CHAPTER 1345.
OF THE REVISED CODE RAISED BY YOUR WRITTEN COMPLAINT. THE
CURE OFFER INCLUDES BOTH A “SUPPLIER'S REMEDY” TO SOLVE
THIS DISPUTE AND AN OFFER TO PAY YOUR ATTORNEY'S FEES UP TO
$2,500.00 AND YOUR COURT COSTS IN FILING THE COMPLAINT. YOU
ARE NOT OBLIGATED TO ACCEPT THIS CURE OFFER AND HAVE THE
RIGHT TO CONSULT WITH LEGAL COUNSEL BEFORE MAKING YOUR
DECISION.
YOU MUST NOTIFY THE SUPPLIER WITHIN 30 DAYS OF RECEIPT OF
THIS CURE OFFER OF YOUR DECISION TO EITHER ACCEPT OR REJECT
THE OFFER BY FILING A RESPONSE WITH THE COURT AND SENDING A
COPY OF THE RESPONSE TO THE SUPPLIER. IF THE COURT DOES NOT
RECEIVE YOUR RESPONSE WITHIN THE REQUIRED TIME, YOUR
FAILURE TO RESPOND WILL, BY LAW, BE CONSIDERED REJECTION OF
OUR OFFER.
REJECTION OF THIS CURE OFFER COULD IMPACT YOUR ABILITY TO
COLLECT COURT COSTS AND LEGAL FEES. IF A COURT, JURY, OR
ARBITRATOR FINDS IN YOUR FAVOR, BUT DOES NOT AWARD YOU AN
AMOUNT MORE THAN THE VALUE OF THE SUPPLIER'S REMEDY, THE
SUPPLIER WILL NOT BE RESPONSIBLE FOR TREBLE DAMAGES,
ATTORNEY'S FEES, OR ANY COURT COSTS YOU INCUR AFTER THE
DATE THIS CURE OFFER WAS MADE (fill in the date).
VALUE OF SUPPLIER'S REMEDY = $(fill in the blank)
THE SELLER ALSO AGREES TO PAY YOUR ATTORNEY'S FEES, UP TO
$2,500.00, THAT ARE NECESSARY OR REASONABLY RELATED TO THE
FILING OF YOUR INITIAL CLAIM, AS WELL AS YOUR COURT COSTS.
5
Id. § 1345.092(D).
Given the quickness with which the parties
must act under this provision, it is clear that the General
Assembly had in mind the purpose of early resolution of claims
when possible.
It is quite plain that, within her May 14, 2013 letter
labeled “IMPORTANT:
THIS IS AN OFFER TO SETTLE AND IS SUBJECT
TO RULE 408 OF THE FEDERAL RULES OF EVIDENCE,” counsel for the
Accuardi Defendants stated her clients’ intent to “resolve the
matter in its entirety” (doc. 31 at 1).
Such an objective makes
perfect strategic sense to the Court.
The Accuardi Defendants
wished not only to seek the protection of Section 1345.092 and
“exercise [their] right to cure”, but, in the course of that
exercise, they wished “also [] to resolve this matter in its
entirety”
for
“supplier’s
the
same
remedy”
in
dollar
the
amount
Notice
they
(id.
listed
(emphasis
as
the
added)).
Plaintiff saw through their inventive tactic, however, because,
in
his
acceptance,
he
made
the
following
points
in
clarification:
I am responding to your clients’ offer to cure made
under Ohio Revised Code § 1345.092.
I hereby accept your
clients’ offer to cure my claims under Ohio Revised Code §
1345 with the understanding that acceptance of this offer
would resolve all claims brought under state law against
your clients but would not in any way affect the claims
brought under federal law . . . . To be absolutely clear,
my claims under federal law will not be dismissed or
compromised as the result of accepting your clients’ offer
to cure my state law claims under Ohio Revised Code § 1345.
If this understanding is contrary to your understanding of
6
the effect of the acceptance of the offer to cure, please
advise me in writing as soon as possible and in any event
no later than June 17, 2013.
Acceptance of this offer to cure my state law claims,
while leaving the federal claims intact, will greatly
simplify the issues involved in this lawsuit, thus reducing
your clients’ expenses in defending against the lawsuit,
and will reduce your clients’ potential total liability,
and is consistent with the purpose and intent of ORC §
1345.092.
My attorney’s fees to date are zero and my court costs
are the $350 civil filing fee.
Evidence of these court
costs is available from the court records.
An offer to cure under ORC § 1345.092 may not require,
as a condition for accepting the offer, that a plaintiff
forfeit federal legal rights and claims.
ORC § 1345.092
(D)(1)(a) says that the resolution offered by the supplier
must contain a ‘supplier’s remedy that consists solely of
monetary compensation to resolve alleged violations of this
chapter.’ (Emphasis added.) . . . Furthermore, a state
statute cannot diminish my rights to treble damages, court
costs, etc. under federal statutes in pursuing federal
claims in a federal court. In short, a requirement that a
plaintiff forfeit federal claims in order to accept an
offer to cure under ORC § 1345.092 would be contrary to the
letter, purpose, and intent of ORC § 1345.092, and would be
contrary to the proper relationship between federal and
state law.
(doc. 36 at 1-2).
The
Court
frames
the
question
presented
in
a
manner
slightly different from the suggestion of either party.
At
issue, we believe, is whether the integrity of the cure offer
was compromised because it was tendered as a component of a
larger proposal to settle all pending claims, not just ones
brought under the OCSPA.
In other words, given the language and
purpose of Section 1345.092, can the Court construe the letter
7
from counsel for the Accuardi Defendants as containing both a
cure offer and a separate offer to settle, such that one is
severable from the other?
Because Plaintiff accepted the former
but rejected the latter, an affirmative answer would allow the
relief Plaintiff seeks, namely grant of his motion for partial
summary
judgment
and
an
order
directing
Defendants
to
pay
Plaintiff the supplier’s remedy specified plus the cost to file
his complaint.
The
Accuardi
Defendants
argued
successfully
to
the
Magistrate Judge that the statute ought not be so construed, as
she reports that to accept Plaintiff’s view would result in a
defendant never being able to “execute a global settlement of
both federal claims and state law claims, if one of those state
law
claims
happens
to
Moreover, she opined,
to
restrict
the
‘cure
fall
under
§
1345”
(doc.
58
at
9).
“[i]f the Ohio legislature had intended
offer’
only
to
settlement
of
claims
falling under § 1345, the legislature presumably could have, and
would have, made that intention more explicit by more clearly
stating that no other claims may be settled by a cure offer
filed under the statute” (id. at 9-10).
The Court does not necessarily agree that acceptance of
Plaintiff’s theory would portend such a result.
As earlier
referenced, the OCSPA’s “right to cure” provision is a shield
for
suppliers/defendants
to
8
be
used
against
consumers/plaintiffs.
It
does
not
preclude
the
traditional
approach of an out-of-court compromise, but, rather, functions
to penalize a plaintiff who, if the matter proceeds to trial,
does not prove damages in excess of a defendant’s cure offer.
It is one, but not the only, method to resolve an action brought
under
the
OCSPA,
with
the
added
benefit
to
a
defendant
of
capping the potential award of damages, fees, and costs for
which it may be liable.
But by its terms, though, it very
clearly does not anticipate a cause of action that includes more
than a claim under the OCSPA.
We appreciate how one might interpret the use of the verb
“includes”
in
the
statutorily-recommended
language
for
the
Notice (i.e., “THIS LETTER INCLUDES A ‘CURE OFFER’ THAT IS BEING
OFFERED TO SETTLE ALL ALLEGED VIOLATIONS OF CHAPTER 1345. OF THE
REVISED CODE RAISED BY YOUR WRITTEN COMPLAINT[]”) to justify the
broader
reading
urged
by
Defendants.
1345.092(D)(2) (emphasis added).
See
O.R.C.
§
But “includes” is used not
only in the first sentence of the template, but also the second
(i.e., “THE CURE OFFER INCLUDES BOTH A ‘SUPPLIER’S REMEMDY’ TO
SOLVE THIS DISPUTE AND AN OFFER TO PAY YOUR ATTORNEY’S FEES UP
TO $2,500.00 AND YOUR COURT COSTS IN FILING THE COMPLAINT[]”).
Id. (emphasis added).
“includes”
as
We think it appropriate, then, to read
synonymous
with
9
“contains,”
rendering
each
sentence
a
simple
declarative
statement,
inviting
neither
a
narrow nor a broad construction.
The Ohio courts have provided no case law to guide us.
This Court observes, however, that the “plain language” aspect
of
the
Notice
circumstance,
required
as
by
here,
Section
1345.092(D)
involving
a
addresses
the
defendant/supplier
represented by counsel and a plaintiff/consumer appearing pro
se.
To allow a defendant the opportunity to make a cure offer
with regard to OCSPA claims contingent upon a global settlement
of
all
other
legislative
claims
goal
of
strikes
us
safeguarding
as
inconsistent
David-like
with
consumers
a
from
Goliath-like suppliers, notwithstanding the advice to consumers
within the Notice of their right, “TO [NOT] ACCEPT THIS CURE
OFFER AND . . . TO CONSULT WITH LEGAL COUNSEL BEFORE MAKING YOUR
DECISION” (see O.R.C. § 1345.092(D)(2)).
Simply
stated
and
in
conclusion,
once
the
Accuardi
Defendants made their cure offer part of a global settlement
agreement, it ceased to be a discrete “cure offer” that either
could
be
pursuant
accepted
to
by
Section
or
later
1345.092.
enforced
Because
against
it
Plaintiff
included
the
additional term of resolving all claims brought against them,
not just the ones pursuant to Section 1345, Defendants’ “cure
offer” was conditional, as was Plaintiff’s “acceptance” of it.
The Ohio statutory scheme was not followed, and a basic “meeting
10
of the minds” under traditional principles of contract law did
not
occur.
Accordingly,
Plaintiff’s
motion
seeking
a
money
judgment in connection with the purported “cure offer” must be
denied.
In sum, the objection filed by the Accuardi Defendants with
regard to that portion of the Magistrate Judge’s October 31,
2013 Memorandum Order granting Plaintiff leave to file a third
amended complaint (see doc. 57 at 3 ¶ 1) is OVERRULED, as is
their
concomitant
recommended
(doc.
69),
objection
decision
which
with
the
to
regard
Court
the
to
Magistrate
their
ACCEPTS,
Motion
AFFIRMS
Judge’s
to
Dismiss
and
ADOPTS.
Therefore, the Motion to Dismiss by the Accuardi Defendants is
DENIED
AS
Magistrate
MOOT.
The
objection
Judge’s
recommended
filed
decision
by
Plaintiff
with
regard
to
the
to
his
Motion for Summary Judgment (doc. 41) likewise is OVERRULED.
The Court ACCEPTS, AFFIRMS AND ADOPTS said recommendation and
thus Plaintiff’s Motion for Summary Judgment is DENIED.
SO ORDERED.
Dated: January 23, 2014
s/S. Arthur Spiegel________________
S. Arthur Spiegel
United States Senior District Judge
11
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