Common Core Litigation: Magistrate Judge Recommends to Re-Open SDOH TCPA Case and Then Dismiss All Remaining Claims

I was recently informed that math is taught differently nowadays.  Kids are using logic, and more apples and oranges versus my old-school base 10 and long division.  Nonetheless, in either event the result should remain the same.  Magistrate Judge Stephanie Bowman applies this same philosophy in her Report and Recommendation to re-open Lucas v. Desilva Auto. Servs and then, dismiss it once and for all.  No. 1:16-cv-790, 2019 U.S. Dist. LEXIS 130146 (S.D. Ohio Aug. 5, 2019).

In Lucas, Magistrate Judge Bowman recognizes the Court’s previous error in dismissing the case in its entirety.  However, just because the Magistrate Judge believes that the reason the case was dismissed was faulty, it does not mean the case should remain open.  She recommends the end result should be the same – with a full dismissal.

The procedural history of this case is enough to make your head spin.  In sum, Plaintiff Lucas is an experienced TCPA plaintiff, with a total of at least 11 lawsuits in the SDOH, alone.  Id. at fn. 1.  In his Complaint, Lucas sued three unnamed defendants, alleging a total of 42 illegally placed telemarketing calls to his home phone line.  In December 2016, Plaintiff filed his First Amended Complaint, now naming 16 defendants, including Callvation, LLC (a now-dissolved Florida LLC) and the registered agent of Callvation, Jeffrey Torres.  Lucas then obtained entries of default for various defendants including Callvation and Torres.

Fast forward to September 2017, when the Plaintiff files his Second Amended Complaint in which he voluntarily dismisses six defendants, and adds one defendant.  In a March 31, 2018 order, the District Judge explained that the Second Amended Complaint rendered any previous entry of default moot.  Therefore, the Plaintiff would be required to seek new entries of default for any remaining defendants.  (Spoiler Alert: He didn’t).  Further, District Judge Michael Barrett adopted the Magistrate Judge’s R&R to dismiss three more defendants.  However, Judge Barrett mistakenly ordered the clerk to close the docket and rendered the case “Closed and Terminated” without realizing that Torres’ and Callvation’s cases remained open.  Oops.

That brings us to today.  In her R&R, Magistrate Judge Bowman recommends to reopen the case as to Torres and Callvation, and then, dismiss the case again.  Apparently, the Sixth Circuit requires you to show your work.

After finding that this Court had authority to rule on the issues even though the case was technically closed, Magistrate Judge Bowman first explains that default judgment against the two remaining defendants is not justified because the Plaintiff never sought entries of default after filing his Second Amended Complaint.  Seems pretty straightforward; their cases should remain open.

However, Magistrate Judge Bowman then continues in her recommendation and wastes no time highlighting the shortcomings in the Plaintiff’s “relatively small (and likely uncollectable)” case.  Id. at *17.  Most importantly, the Judge finds that Plaintiff has alleged no real harm, other than 2-3 minutes of his time.  Instead, she continues, “[H]e is pursuing relatively small statutory damages under the TCPA and related Ohio law. This Court has expended an inordinate amount of judicial resources on this case, including but not limited to Plaintiff’s two motions for default judgment. Allowing Plaintiff additional time to first move for entries of default before following up with a third motion for default judgment after such a lengthy delay, and considering that Plaintiff was clearly advised of the correct procedural course some 16 months ago, would be prejudicial to the public interest in obtaining the prompt resolution of cases. Id. at *19.

Remember, only two defendants remain.  Callvation, the business, no longer exists.  Torres, the officer and statutory agent, now lives with his parents and informed the Plaintiff he would file for bankruptcy protection if the Court renders judgment against him.  If Magistrate Judge Bowman only previously hinted that the Plaintiff is wasting the Court’s time – she just made it crystal clear.

What is also important to our analysis in TCPA World is § E. of the Report and Recommendation.  Here, the Magistrate Judge provides the District Judge with yet another alternative for proper dismissal of the case against Torres.  Namely, the Sixth Circuit has yet to rule on whether the officer of an entity can be held liable under the TCPA if the plaintiff makes no allegations as to the officer’s individual involvement beyond their title.  Id. at *22.  In Lucas, the Plaintiff did not provide any allegation that Torres was directly and personally participating in the alleged TCPA violations.  Therefore, the case against him should be dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6).  

The takeaway from this procedural nightmare provides us guidance on when to include (or when to file for a dismissal of claims against) officers of named entities in TCPA actions.  If you have no proof of knowledge, direction, or personal involvement by the officer, the SDOH directs you to leave him/her off your complaint. 

After the parties (okay… the Plaintiff) submit objections to the R&R, Judge Barrett will issue his order.  Stay tuned for TCPA World’s follow up post on Judge Barrett’s ultimate opinion, and regardless of his forthcoming rationale, we promise no calculators necessary.

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