Last November, TCPAWorld reported on Vincent Lucas’ winding road to seek TCPA relief that started now some seven and one-half years ago. After seemingly hitting a dead end in the United States Court of Appeals for the Sixth Circuit (Sixth Circuit), a panel of that Court had second thoughts about the potential vicarious liability of certain platform-provider defendants. So it granted a partial rehearing, sending the case back to the District Court to consider the Federal Communications Commission (FCC) decisions that had adopted a “‘totality of the circumstances test’” to determine “whether a platform provider is so involved in placing” offending calls “as to be deemed to have initiated them.” The full story on the trek to that junction can be found here.
So Mr. Lucas trod back to the United States District Court for the Southern District of Ohio. And last week that Court wrote the latest chapter in this long-running TCPA saga in Lucas v. Telemarketer Calling From (407) 476 and Other Telephone Numbers, 2020 U.S. Dist. LEXIS 36918, Case No. 1:12-cv-630, United States District Court for the Southern District of Ohio, March 3, 2020.
First, there was the Sixth Circuit’s instruction that the Court ask Mr. Lucas about the status of an FCC petition he had filed in 2014 on the vicarious liability issue. As noted in our previous report, that petition resulted in a stay of the case for nearly three years. Mr. Lucas responded that “the FCC does not respond to [such] …questions” from petitioners and suggested that perhaps the Court should make such an inquiry. More about this later.
Having dispensed with that obligation, the Court addressed Mr. Lucas’s motion now to vacate a protective order that the Court had entered in connection with his broad request for discovery on certain TCPA claims that had been dismissed.
The Court had previously denied a similar motion and did so again, declining to reopen a door that already been closed. The Sixth Circuit had only granted rehearing on the claim that the defendants might be “‘held vicariously or contributorily liable under the TCPA based on their knowledge that their telemarketer clients were using the numbers that defendants assigned to them to make illegal calls to Lucas and whether the defendants’ alleged assistance in making those calls was sufficient to subject them to TCPA liability.’” It said nothing about resurrecting dismissed claims, so vacating the protective order that precluded discovery on those claims “is not appropriate.”
At most, Mr. Lucas can get discovery as to his vicarious liability claim (and any “derivative” state claim). Yet the Court found that even that discovery was “not yet appropriate (emphasis supplied).”
After all this, why not? Well, the Court first has to consider “issues of law concerning the viability of Plaintiff’s claims.” As yet, “…. no Court has…determined whether Plaintiff’s…complaint does or does not state any viable claim” in light of the FCC rulings that led to the Sixth Circuit’s partial rehearing, even if the Court were to determine that those rulings “are fully applicable.” As Magistrate Judge Bowman observed, Mr. Lucas’s motion to vacate, “asks for too much, too soon.”
To set the stage for the next turn in this circuitous path, the Court directed that any new motions to dismiss, addressing at a minimum the issues raised by the Sixth Circuit, be submitted by March 25, 2020.
And remember that suggestion about the Court making inquiry of the FCC? The Court directed Mr. Lucas to submit, by March 20, 2020, a “proposed Order…that directs the FCC to provide an update on the status of the Plaintiff’s long pending June 18, 2014 petition….”
TCPAWorld will, of course, continue to go along for this ride.