Lucas v. Doe et al

Filing 165

ORDER adopting Report and Recommendation re 161 Report and Recommendation granting 124 Motion to Dismiss for Lack of Jurisdiction and denying 146 Motion for Contempt. Signed by Judge Michael R. Barrett on 3/31/19. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION CINCINNATI
VINCENT LUCAS,
Plaintiff,
Case No.1:16-CV-00790-MRB

vs.

Judge Michael R Barrett
DESILVA AUTOMOTIVE SERVICES,
ET AL.,
Defendants.
ORDER
This matter is before the Court on Plaintiff’s Objections to the magistrate
judge’s report (Doc. 161) recommending: (1) that the Salazar Defendants’ motion to
dismiss for lack of personal jurisdiction (Doc. 124) be granted; and (2) Plaintiff’s
motion for civil and/or criminal contempt (Doc. 146) be denied. Plaintiff timely filed
objections (Doc. 163), and Defendants timely responded (Doc. 164). This matter is
ripe for disposition.
I.

BACKGROUND
The procedural and factual background of this case has been recited in

several prior orders, and will not be fully restated here. In sum, however, Plaintiff
seeks to hold the three Salazar Defendants liable for four telephone calls he
received on separate dates in February 2015. Plaintiff advances claims under the
Telephone Consumer Protection Act (“TCPA”), the Ohio Telephone Solicitation Act,
the Ohio Consumer Sales Practices Act, and for alleged regulatory violations of the
Public Utility Commission of Ohio. (Doc. 108). The TCPA generally imposes liability
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upon those who “initiate” illegal calls or upon the “seller on whose behalf a call is
made[.]” In re Dish Network, LLC, 28 FCC Rcd. 5674, 2013 WL 1934349 (May 9,
2013).
On May 1, 2018, the magistrate judge recommended that this case be
dismissed and that Plaintiff’s motion for contempt be denied. Plaintiff offers the
following objections: (1) “the Magistrate Judge should have recommended that the
Defendants’ Motion to Dismiss [for lack of personal jurisdiction] be denied”; (2) “the
Magistrate Judge erred in recommending dismissal under Rule 12(b)(6)”; and (3)
“the Magistrate Judge should have recommended that my Motion for Contempt be
granted.” (Doc. 163).
II.

STANDARD
This Court shall consider objections to a magistrate judge's order on a

nondispositive matter and “shall modify or set aside any portion of the magistrate
judge's order found to be clearly erroneous or contrary to law.” Fed. R. Civ. P.
72(a). When objections to a magistrate judge’s order are received on a dispositive
matter, the assigned district judge “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3). After review, the district judge “may accept, reject, or modify the
recommended decision; receive further evidence; or return the matter to the
magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
Rule 72 requires objections to be “specific”:

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Each objection to the magistrate judge's recommendation
should include how the analysis is wrong, why it was
wrong and how de novo review will obtain a different result
on that particular issue. Merely restating arguments
previously presented, stating a disagreement with a
magistrate judge's suggested resolution, or simply
summarizing what has been presented before is not a
specific objection that alerts the district court to the alleged
errors on the part of the magistrate judge.
Martin v. E.W. Scripps Co., No. 1:12CV844, 2013 U.S. Dist. LEXIS 155673, at *5
(S.D. Ohio Oct. 30, 2013) (citations omitted). “A general objection which does not
specify the issues of contention is tantamount to filing no objections at all and does
not satisfy the requirement that objections be filed.” Allen v. Ohio Dep't of Rehab. &
Correction, 202 F.3d 267 (6th Cir. 1999).
III.

ANALYSIS
A. Objections to Magistrate Judge’s Personal Jurisdiction Analysis
First, Plaintiff objects on the basis that Defendants waived the personal

jurisdiction defense by entering a general appearance. The undersigned considered
and rejected this argument in a prior order. (Doc. 156). Thereafter, Plaintiff offers a
series of objections based upon the magistrate judge’s purported misapplication of
the “prima facie showing” standard as it relates to the issue of personal jurisdiction.
With respect to personal jurisdiction, the magistrate judge cited the following
standard:
“The plaintiff bears the burden of demonstrating that such
jurisdiction exists…. Additionally, in the face of a properly
supported motion for dismissal, the plaintiff may not stand
on his pleadings but must, by affidavit or otherwise, set
forth specific facts showing that the court has jurisdiction.”
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Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th
Cir.1991)(internal citations omitted). When the matter is
resolved on written submissions alone, the plaintiff will
satisfy his burden if he can make a “prima facie showing”
of personal jurisdiction. By contrast, when a pretrialevidentiary hearing is conducted, the preponderance-ofthe-evidence standard applies. Schneider v. Hardesty,
669 F.3d 693, 697 (6th Cir. 2012)(citing Serras v. First
Tennessee Bank National Association, 875 F.2d 1212,
1214 (6th Cir.1989)).
(Doc. 161, PageID 1285).
Plaintiff concedes that the magistrate judge cited the correct legal standard.
Therefore, because the issue of personal jurisdiction was decided on the papers,
Plaintiff was required to make a prima facie showing of the Court’s personal
jurisdiction over the Salazar Defendants. Plaintiff argues, however, that the
magistrate judge misapplied the prima facie showing standard. Specifically, Plaintiff
contends that the magistrate judge improperly weighed the evidence, when she was
instead required to accept Plaintiff’s allegations/evidence as true and disregard
Defendants’ allegations/evidence entirely. (Doc. 163-1, PageID 1317). The Court
disagrees. To determine whether a plaintiff makes a prima facie showing of
personal jurisdiction, “the court considers the pleadings in the light most favorable to
the plaintiff and does not weigh the disputed facts, although the court may consider
the defendant's undisputed factual assertions.” Best v. At&T Inc., No. 1:12-cv-564,
2014 U.S. Dist. LEXIS 142776, at *4 (S.D. Ohio Sep. 16, 2014) (emphasis added).
Applying the above standard, the Court is not persuaded that: (1) the
magistrate judge misapplied the standard; or (2) Plaintiff sustained his burden.
Plaintiff offered multiple theories in support of personal jurisdiction, including the
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theory that the Defendants physically dialed his number, thereby availing
themselves of this Court’s jurisdiction; however, the magistrate judge observed that
this conclusory assertion was based on Plaintiff’s conjecture. (Doc. 161, PageID
1293). Plaintiff also argued that the offending calls were placed by third parties and
routed by Defendants’ software through Defendants’ California computers and
networks. (Doc. 161, PageID 1295). Even accepting this assertion as true, though,
the magistrate judge found such an argument insufficient to create jurisdiction in
Ohio: “the hypothetical knowledge that a non-Ohio based . . . company, using
Defendants’ software, might call an Ohio customer in a manner that violates the
TCPA, cannot be viewed as the Defendants’ ‘purposeful’ availment in Ohio.” (Id.)
(citing Bridgeport Music, Inc. v. Still N The Water Pub., 327 F.3d 472, 478 (6th Cir.
2003)). Finally, the magistrate judge even analyzed personal jurisdiction under an
agency theory, despite Plaintiff’s failure to properly assert such a basis for liability.
(Doc. 161, PageID 1295). Accepting Plaintiff’s contentions as true, however, the
magistrate judge properly concluded that “Defendants’ relationship with the calls is
simply too insubstantial to support jurisdiction.” (Doc. 161, PageID 1297).
Ultimately, when the magistrate judge accepted all of Plaintiff’s nonconclusory allegations as true, they still failed to pass muster under Ohio’s long arm
statute and the Due Process clause. Accordingly, Plaintiff’s objections relating to
personal jurisdiction are not well taken.1

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In the portion of his brief objecting to the magistrate judge’s personal jurisdiction analysis, Plaintiff also
objected that the magistrate judge “misconstrued [his] claims.” Specifically, he claims that the magistrate
judge focused on his alternative ground for relief, while ignoring his primary ground. (Doc. 163-1, PageID
1318). Assuming arguendo that the magistrate judge ignored one of the theories of liability, Plaintiff fails

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B. Objections to the Magistrate Judge’s Rule 12(b)(6) Analysis
Plaintiff objects to the magistrate judge’s recommendation that the complaint
also be dismissed on Rule 12(b)(6) grounds, arguing that the magistrate judge
improperly relied upon documents beyond the four corners of the complaint. (Doc.
163-1, PageID 1326-27). However, Plaintiff does not direct the Court to what, if any,
extrinsic evidence was improperly considered by the magistrate judge as part of the
Rule 12(b)(6) analysis. The objection is thus too general to meet Rule 72’s
specificity requirement. Martin v. E.W. Scripps Co., No. 1:12CV844, 2013 U.S. Dist.
LEXIS 155673, at *5 (S.D. Ohio Oct. 30, 2013). The objection is thus overruled.
C. Objections to the Magistrate Judge’s Contempt Analysis
In objecting to the magistrate judge’s denial of the Motion for Contempt,
Plaintiff argues that the magistrate judge’s “recommendation is based on two faulty
conclusions: 1. that neither ‘intentionality’ nor bad faith has been demonstrated, and
2. that the statements are not material.” (Doc. 163-1, PageID 1327). Plaintiff also
argues that the Salazar Defendants lack credibility. (Id. at 1310-13). In this nondispositive matter, the Court “shall modify or set aside any portion of the magistrate
judge's order found to be clearly erroneous or contrary to law.” Fed. R. Civ. P.
72(a). Plaintiff objects to the magistrate judge’s “misguided” view of
materiality/intentionality (Id. at 1328), but fails to establish clear error or that the
magistrate judge’s conclusion is contrary to law. Thus, the objection is overruled.

to offer how if at all such an error affected the magistrate judge’s analysis of personal jurisdiction. The
argument is thus not well taken.

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IV.

CONCLUSION
For the foregoing reasons, and consistent with the above, the magistrate

judge’s report (Doc. 161) is ADOPTED, and:
(1) The Salazar Defendants’ motion to dismiss for lack of personal jurisdiction
(Doc. 124) is GRANTED; and
(2) Plaintiff’s motion for civil and/or criminal contempt (Doc. 146) is DENIED.
This matter is CLOSED AND TERMINATED from the active docket of this Court.
IT IS SO ORDERED.

s/Michael R. Barrett
________________________
Hon. Michael R. Barrett
United States District Judge

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