Lucas v. Telemarketer Calling From (407) 476-5670 & Other Tel. Nos.
Lucas v. Telemarketer Calling From (407) 476-5670 & Other Tel. Nos.
2014 WL 12656102 (S.D. Ohio 2014)
May 22, 2014
Bowman, Stephanie K., United States Magistrate Judge
Summary
The court granted Defendants' amended motion to compel AT&T to respond to the previously issued subpoena for Defendant TMC's call records from September 2011. AT&T had declined to respond to the subpoena, but the court noted that the ESI sought by the subpoena was highly relevant and that AT&T had waived any objection to the subpoena. AT&T was ordered to respond by June 13, 2014.
Additional Decisions
Vincent LUCAS, Plaintiff,
v.
TELEMARKETER CALLING FROM (407) 476-5670 AND OTHER TELEPHONE NUMBERS, et al., Defendants
v.
TELEMARKETER CALLING FROM (407) 476-5670 AND OTHER TELEPHONE NUMBERS, et al., Defendants
Case No. 1:12-cv-630
United States District Court, S.D. Ohio, Western Division
Filed May 22, 2014
Counsel
Vincent Lucas, Amelia, OH, pro se.Helen Marie MacMurray, Lisa A. Messner, Mac Murray Petersen & Shuster, LLP, New Albany, OH, for Defendants.
Bowman, Stephanie K., United States Magistrate Judge
Opinion
I. Background
*1 The above captioned case involves Plaintiff's allegations of illegal telemarketing practices. Seeking monetary damages and injunctive relief, Plaintiff initiated this litigation pro se on August 20, 2012. He has amended his complaint several times, adding new claims and defendants. On March 20, 2014, the undersigned filed a Report and Recommendation (“R&R”) in which I recommended granting in part a motion to dismiss filed by six Defendants. Although I recommended the dismissal of most claims against most of those defendants, I recommended that Plaintiff's TCPA claims against Defendant Telephone Management Corporation (“TMC alone”) and Defendant Fred Accuardi be permitted to proceed, insofar as Plaintiff had alleged in his third amended complaint that those two Defendants were within the definition of a “telemarketer.” Specifically, Plaintiff had alleged in part that Defendant TMC alone “originated the telemarketing calls that I received in which 508-475-1352 and 508-475-1394 appeared on my Caller ID device.” (Third Amended Complaint at ¶ 34).
As explained in the R&R:
To the extent that Plaintiff is alleging that TMC alone actually originated telemarketing calls from two telephone numbers, Plaintiff is correct in arguing that he has adequately pleaded a TCPA violation against that single Defendant. This is not vicarious liability, but instead direct liability under the TCPA, because TMC alone is accused of initiating a call as a telemarketer itself. More specifically, the undersigned concludes that paragraphs 22, 32, and 34 of the third amended complaint, construed liberally, allege that TMC alone may have “originated” two calls received by Plaintiff between September 2011 and January 2013 in which Plaintiff received a pre-recorded message in violation of 47 U.S.C. § 227(b).
(Doc. 91 at 18). Similarly, the R&R explained that with respect to individual Defendant Fred Accuardi:
Plaintiff alleges that Fred Accuardi “has commingled his personal finances with those of Telephone Management Corporation,” and that both TMC alone and ITC are “closely held businesses controlled by Fred Accuardi and his family,” and are “an alter ego for Fred Accuardi and his family.” (Doc. 59 at ¶¶ 88, 90). Despite the somewhat conclusory nature of these allegations of personal involvement in TMC's alleged telemarketing activities, the undersigned finds the allegations to be (barely) sufficient to state a theory of derivative personal liability against Defendant Fred Accuardi based upon Plaintiff's alleged TCPA claim against Defendant TMC alone.
(Id. at 33).
Both Defendants and Plaintiff have filed objections to that R&R, which objections remain pending before the presiding district judge. After the R&R was filed, the undersigned partially granted Defendants' motion to stay further discovery against them. The undersigned directed the parties to continue discovery that relates to the “true caller” of the 508 number(s) upon which the non-dismissed TCPA claims are based. Defendants have maintained that TMC alone did not in fact make those calls, but that some other person or entity was responsible. Plaintiff concedes that if his objections are overruled and the R&R is adopted by the district judge in full, and if Defendants further can prove that TMC alone was not the caller, then he will no longer be able to state a TCPA claim against TMC alone and/or Fred Accuardi as a “telemarketer” for the reasons expressed in the R&R. The deadline for completion of discovery relating to the “true caller” is June 1, 2014.
II. Pending Motion to Compel Non-Party AT&T to Respond
*2 In an effort to prove that TMC alone was not the true caller, on April 14, 2014, Defendants issued a subpoena from this United States District Court to the AT&T Subpoena Center in Dallas, Texas, seeking all of Defendant TMC's call records from September, 2011, the time frame that the 508 numbers allegedly placed calls to Plaintiff. As of May 16, 2014, AT&T has declined to respond to the subpoena, stating that it will not respond absent a court order. Defense counsel represents in its motion that they have had telephone contact with one or more persons at the AT&T Subpoena Center. However, there is no record that AT&T has filed any written objection to the subpoena or filed a formal motion to quash or modify the subpoena. Defendants have now filed a motion to compel AT&T to respond to the previously issued subpoena, citing the impending June 1 deadline. Plaintiff filed a response on May 20, 2014 indicating that he has no objection to non-party AT&T being compelled to respond.
Although the time for AT&T to file any response to the recently served amended motion has not yet expired,[1] the undersigned accepts the representations of defense counsel that AT&T implicitly has conceded receipt/service of the subpoena but will not produce the requested information absent a court order. Rule 45(c)(2) states that a subpoena seeking the production of documents or electronically stored information may command such production “at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person.” The subpoena was issued to AT&T Subpoena Center in Dallas, Texas, but seeks the production of documents to the office of defense counsel in Ohio. Technically, this Court lacks authority to compel compliance with a subpoena that seeks production beyond a 100 mile radius of its jurisdictional boundaries. In order to obtain the requested documents, Defendants should have obtained a subpoena from, and filed a motion to compel in, the United States District Court for the Northern District of Texas, which includes Dallas.
Nevertheless, the undersigned recognizes that the information sought by the subpoena is highly relevant, and that (apparently) AT&T Subpoena Center has not sought to quash or modify the subpoena on geographical or any other grounds, but rather will comply with a court order. The undersigned further recognizes that, had the subpoena been issued from the Texas District Court, that court may well have transferred any motion to compel to this Court under Rule 45(f), Fed. R. Civ. P. for disposition, as the court that is most familiar with the subject matter to which the subpoena pertains.
III. Conclusion and Order
The Court having examined a copy of the subpoena issued to non-party AT&T Subpoena Center, and finding good cause for enforcement, and finding that AT&T appears to have waived any objection to the subpoena based upon the geographical boundaries of this Court, IT IS ORDERED THAT:
1. Defendants' amended motion to compel (Doc. 110) is GRANTED, and AT&T Subpoena Center is hereby COMPELLED to respond to the previously served subpoena by producing the requested information to defense counsel on or before June 13, 2014;
2. Defendants' prior motion to compel (Doc. 109) is denied as moot;
3. Defendants are responsible for immediate service of a copy of this Order upon non-party AT&T Subpoena Center, and shall file a Notice with this Court indicating such service.
Footnotes
Defendants previously filed a motion to compel that failed to include a copy of the subpoena. Defendants' first motion also failed to indicate whether it had served the non-party against whom the motion to compel was filed. Defendants remedied both errors by filing an amended motion on May 19, 2014.