437 F.Supp.3d 648
W.D. Tenn.2020Background
- Stevens-Bratton contracted with TruGreen in May 2013 and provided both a “Home Phone” and a “Cell Phone” number on the service agreement. She registered her cell number on the National Do-Not-Call (DNC) Registry on November 9, 2013.
- She began receiving telemarketing calls on her cell phone starting January 27, 2015, and alleges the calls were made by an automatic telephone dialing system (ATDS); she asked TruGreen to stop but calls continued.
- She filed a putative class action (TCPA) on July 15, 2015, asserting (1) ATDS/robocall claims under 47 U.S.C. § 227(b) and (2) DNC/internal do-not-call-procedure claims under 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200.
- The District Court compelled arbitration and dismissed; the Sixth Circuit reversed and remanded, and TruGreen moved for summary judgment (Oct. 2017) and later partial summary judgment (Sept. 2018).
- The court denied summary judgment on the ATDS claims because Stevens-Bratton lacked adequate discovery to oppose the motion; the court granted summary judgment to TruGreen on the DNC/regulatory claims because Stevens-Bratton failed to show her cell phone was used for residential purposes.
- TruGreen’s Sept. 2018 partial summary judgment motion was denied as moot in light of the court’s disposition of the Oct. 2017 motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did TruGreen call using an ATDS (§ 227(b) claims)? | Calls were made by an ATDS; plaintiff needs discovery to prove it. | Evidence shows employees did not use an ATDS; summary judgment should be granted. | Denied for now — summary judgment improper because plaintiff lacked adequate discovery to test defendant declarations and the ATDS issue remains contested. |
| Is Stevens‑Bratton a "residential telephone subscriber" for § 64.1200(c)/(d) (DNC/internal-procedure claims)? | Her cell is on the National DNC Registry and she says she uses the cell as her residential line. | She provided both home and cell numbers; she has not shown her cell was used for residential purposes. | Granted for defendant — plaintiff failed to present sufficient evidence that her cell phone was used for residential purposes; DNC registration alone insufficient at summary judgment. |
| What is the status of TruGreen’s Sept. 12, 2018 partial summary judgment motion? | N/A | Motion sought alternative grounds to dismiss claims 3–6. | Denied as moot because the court already resolved those claims in the Oct. 2017 motion. |
Key Cases Cited
- Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (2012) (federal courts have federal-question jurisdiction over TCPA claims)
- Charvat v. EchoStar Satellite, LLC, 630 F.3d 459 (6th Cir. 2010) (TCPA statutory/regulatory context cited for jurisdictional and interpretive points)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for summary judgment and genuine dispute requirement)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (movant’s burden and summary judgment framework)
- Ball v. Union Carbide Corp., 385 F.3d 713 (6th Cir. 2004) (plaintiff must have full opportunity for discovery before summary judgment)
- Bobo v. United Parcel Serv., Inc., 665 F.3d 741 (6th Cir. 2012) (reversal where plaintiff showed need for further discovery to oppose summary judgment)
- Riley v. California, 573 U.S. 373 (2014) (recognition of pervasive and private nature of cell phones)
- Carpenter v. United States, 138 S. Ct. 2206 (2018) (further emphasis on privacy interests in cell-phone data)