251 F. Supp. 3d 1187
M.D. Tenn.2017Background
- Plaintiff Craig Cunningham, a Nashville resident and serial TCPA plaintiff, alleges he received at least 28 prerecorded/robocalls promoting a “free” home security system and monitoring services tied to Rapid Response Monitoring Services, Inc. (RRMS), Safeguard America, and Homeland Security, LLC.
- Cunningham answered one call, was prompted to press 1, engaged further to identify the callers, and later met an installer (he later says he did not receive the system and was investigating for litigation).
- Second Amended Complaint asserts: Count I — violations of 47 U.S.C. § 227(b) (auto-dialed/prerecorded calls); Count II — violations of § 227(c)(5) via 47 C.F.R. § 64.1200(d) (do‑not‑call/internal procedures); Count III — civil conspiracy to violate the TCPA.
- RRMS and its CEO MacDonnell moved to dismiss (lack of Article III standing, failure to state claims, conspiracy defects); three individual officers moved to dismiss for lack of personal jurisdiction; Cunningham sought limited jurisdictional discovery.
- Magistrate Judge recommended dismissal for lack of Article III standing; District Judge conducted de novo review, rejected the standing ground, but granted dismissal in part: Count II dismissed as to all parties; Counts I and III dismissed as to the individual defendants and MacDonnell in his individual capacity; Count I dismissed as to RRMS only insofar as it relied on apparent authority; personal‑jurisdiction discovery was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | Cunningham alleges invasion of privacy / nuisance from unwanted robocalls sufficient for concrete, particularized injury | RRMS: Cunningham is a "professional plaintiff" who welcomed or solicited calls, so he suffered no real injury | Court: Plaintiff has standing; the fact he litigates or investigated does not negate an invasion of privacy at pleading stage; R&R on standing not adopted |
| Zone of interests | Cunningham's harms fall within TCPA's purpose to protect privacy from unwanted calls | RRMS: Professional‑plaintiff status places Cunningham outside statute's protective zone | Held: Cunningham is within the TCPA's zone of interests; statute incentivizes private enforcement |
| Vicarious liability for §227(b) (actual/apparent authority & ratification) | Cunningham alleges RRMS authorized Safeguard to generate leads and benefited from scheme (agency/ratification theories) | RRMS: it sold monitoring to Safeguard, not to consumers; contracts and facts do not show agency or seller status; apparent authority allegations are conclusory | Held: Count I survives except: (1) dismissed as to RRMS to the extent based on apparent authority (insufficient factual allegations); (2) other vicarious theories (actual authority/ratification) allowed to proceed at pleading stage (fact issues) |
| §227(c)(5) / do-not-call rule (Count II) | Cunningham relies on 47 C.F.R. §64.1200(d) violations (internal procedures) to state a §227(c)(5) claim | RRMS: §227(c)(5) and its regulations protect residential subscribers; Cunningham alleges only calls to a cellular number | Held: Count II dismissed for all parties — plaintiff failed to allege his number was used for residential purposes |
| Civil conspiracy (Count III) | Alleged coordinated scheme among RRMS, Safeguard, Homeland, and telemarketers to generate leads and benefit RRMS | RRMS: conspiracy allegations are conclusory and lack particularity | Held: Count III survives as to corporate defendants — allegations of agreement, common objective, and overt acts suffice at pleading stage; dismissed as to individual defendants due to lack of personal jurisdiction |
| Personal jurisdiction over individual defendants | Cunningham argued corporate‑officer liability theories and sought discovery on jurisdiction | Individual Defendants: no Tennessee contacts; affidavits deny contacts or calls; request for jurisdictional discovery is fishing expedition | Held: Court adopts Magistrate Judge — personal jurisdiction lacking over Roman, Coursey, and Keith; claims against these individuals dismissed; jurisdictional discovery denied |
| Individual liability of MacDonnell | Cunningham alleges MacDonnell, as RRMS CEO, is liable individually | RRMS/MacDonnell: allegations are conclusory and fail to show personal involvement | Held: Claims against MacDonnell in his individual capacity dismissed for lack of specific factual allegations |
Key Cases Cited
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (Sup. Ct.) (statutory‑right violations require concrete and particularized injury for Article III standing)
- Mims v. Arrow Financial Services, LLC, 565 U.S. 368 (Sup. Ct.) (TCPA’s objectives and characterization of telemarketing harms)
- Charvat v. NMP, LLC, 656 F.3d 440 (6th Cir.) (47 C.F.R. § 64.1200(d) arises under § 227(c) and do‑not‑call regulations)
- Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir.) (unwanted telemarketing as an invasion of privacy supporting TCPA harms)
- Ashcroft v. Iqbal, 556 U.S. 662 (Sup. Ct.) (plausibility standard for pleading)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (Sup. Ct.) (plausibility and pleading requirements)
- Daimler AG v. Bauman, 134 S. Ct. 746 (Sup. Ct.) (general jurisdiction / "continuous and systematic" contacts)
- CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir.) (prima facie showing standard for personal jurisdiction)