Ferron v. 411 Web Directory et al

Filing 132

ORDER denying 95 Defendant Dish Network's Motion for Attorney Fees; denying 101 Defendant NPS' Motion for Attorney Fees; denying as moot 121 Plaintiff's Motion to Strike Evidentiary Materials Improperly Filed; denying 128 Defendant 411 Web Directory's Motion for Attorney Fees. Signed by Judge Gregory L Frost on 6/21/11. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN W. FERRON
Plaintiff,

CASE NO. 2:09-cv-153
JUDGE GREGORY L. FROST
Magistrate Judge Terence P. Kemp

v.
411 WEB DIRECTORY, et al.,
Defendants.

OPINION & ORDER
This matter is before the Court on the following:
1. Defendant Dish Network’s motion for attorneys’ fees (ECF No. 95), Plaintiff’s
memorandum in opposition (ECF No. 100), Dish Network’s reply memorandum (ECF No. 104),
Dish Network’s notices of supplemental authority (ECF Nos. 105, 124, 125, 131);
2. Defendant National Programming Service, LLC’s (“NPS”) motion for attorneys’ fees
(ECF No. 101), Plaintiff’s memorandum in opposition (ECF Nos. 111, 112), and NPS’s reply
memorandum (ECF No. 114);
3. Defendant 411 Web Directory’s motion for attorneys’ fees (ECF No. 128); and
4. Plaintiff’s motion to strike evidentiary materials improperly filed (ECF No. 121),
Defendant Dish Network’s memorandum in opposition (ECF No. 122); and Plaintiff’s reply
memorandum (ECF No. 123).
For the reasons that follow, the Court DENIES Defendants’ motions and DENIES as
MOOT Plaintiff’s motion.

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I. Background
On May 4, 2010, this Court granted all three of the defendants’ dispositive motions (ECF
No. 91): Defendant Dish Network’s Motion to Dismiss (ECF No. 38), Defendant NPS’s Motion
for Summary Judgment (ECF No. 61), and Defendant 411 Web Directory’s Motion for Summary
Judgment (ECF No. 69). In that Opinion and Order, the Court determined that the issue before it
was identical to the issue that the Honorable Michael H. Watson had ruled upon in Ferron v.
Echostar Satellite, LLC, 727 F. Supp. 2d 647 (S.D. Ohio 2007). In Echostar, Judge Watson
determined that Plaintiff could not succeed on his claim filed pursuant to the Ohio Consumer
Sales Practices Act, Ohio Rev. Code § 1345.01 et seq. (“OCSPA”). This Court adopted the
Echostar Opinion in its entirety, granted Defendants’ dispositive motions, and entered judgment
in favor of Defendants. Since that time, the Sixth Circuit affirmed Echostar. See Ferron v.
Echostar, No. 09-4407, 2010 U.S. App. LEXIS 26403 (6th Cir. Dec. 28, 2010).
Defendants in three separate motions have moved for attorneys’ fees. This Court held an
oral hearing on this issue on August 5, 2010, and all briefing is complete. Plaintiff has moved to
have stricken certain documents that are attached as evidence to support one of the motions for
attorneys’ fees. These are the only issues remaining for resolution in this action.
II. Defendants’ Motions for Attorneys’ Fees
Defendants move for attorneys’ fees under Ohio Revised Code § 1345.01, which
provides in relevant part:
(F) The court may award to the prevailing party a reasonable attorney’s fee limited
to the work reasonably performed, if either of the following apply:
(1) The consumer complaining of the act or practice that violated this chapter has
brought or maintained an action that is groundless, and the consumer filed or
maintained the action in bad faith;
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Ohio Rev. Code § 1345.01(F)(1). The Court, therefore, must determine whether the instant
action was groundless and maintained in bad faith.
After Judge Watson was affirmed by the Sixth Circuit on his merits decision in Echostar,
he addressed the prevailing defendants’ motions for attorneys’ fees under Ohio Revised Code §
1345.01(F)(1). See Ferron v. Echostar, No. 2:06-cv-453 (March 21, 2011). Judge Watson
determined that the case was not groundless or maintained in bad faith. This Court finds his
analysis persuasive and his decision correct:
This case required the Court to interpret the scope of the OCSPA. The
central issue was whether Plaintiff, a lawyer, could maintain an action based on
allegedly deceptive emails when the facts showed he could not have been deceived
by them. The Ohio Supreme Court had never addressed the issue. See Ferron, 727
F. Supp. 2d at 655. There was ostensibly a split of authority in the Ohio appellate
courts. Compare Chestnut v. Progressive Cas. Ins. Co., 166 Ohio App. 3d 299 (8
Dist. 2006) and Crull v. Maple Park Body Shop, 36 Ohio App. 3d 153 (12 Dist.
2006) with Zindle v. Hawks, No. 13016, 1987 WL 16660, at *3 (Ohio App. 9 Dist.
Sept. 2, 1987). While this Court ultimately found Chestnut and Crull more
persuasive, in light of Zindle it cannot fairly be said that Plaintiff’s lawsuit was
completely unsupported or frivolous. Given that the Ohio Supreme Court had not
ruled on the issue, and the split in appellate authority, the Court cannot say that the
instant lawsuit was groundless or maintained in bad faith.
Id. at 2.
For these same reasons, this Court cannot say that the case sub judice was groundless or
maintained in bad faith. Thus, Defendants’ motions for attorneys’ fees are not well taken.
III. Plaintiff’s Motion to Strike
Plaintiff requests that the Court strike certain evidentiary materials submitted by one of
the defendants in support of its motion for attorneys’ fees. Because the Court denied that
defendant’s motion for attorneys’ fees without need to rely upon the evidence at issue, Plaintiff’s
request has been rendered moot.

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IV. Conclusion
For the reasons set forth above, the Court DENIES Defendant Dish Network’s motion
for attorneys’ fees (ECF No. 95), DENIES Defendant NPS’ motion for attorneys’ fees (ECF No.
101), DENIES Defendant 411 Web Directory’s motion for attorneys’ fees (ECF No. 128), and
DENIES as MOOT Plaintiff’s motion to strike evidentiary materials improperly filed (ECF No.
121). The Clerk is DIRECTED to remove this case from this Court’s docket.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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