Case Information
*1 Before W OOD Chief Judge , R OVNER H AMILTON , Circuit Judges .
R OVNER Circuit Judge
. Caregivers, Ltd., (“Helping Hand”) filed suit against Restaurants, Inc., Mid Wilshire Consulting, Inc. (“Mid Wilshire”), Brian Kang, Greg Jones, alleging violation Telephone Consumer Protection Act (“TCPA”), U.S.C. § Specifi cally, asserted Mid Wilshire, through Kang Jones, unsolicited advertisement *2 Helping Hand on behalf Darden. district court grant ‐ ed Darden’s motion for summary judgment and dismissed claims against remaining defendants without preju ‐ dice. subsequently stipulated dismis sals against remaining defendants should be treated as dismissals prejudice, and therefore decision final and appealable. now appeals grant summary judgment Darden, arguing district court applied wrong legal standard granting summary judgment erred limiting discovery denying its motion Federal Rule Civil Procedure 56(d). district relied upon undisputed facts (in
cluding facts properly disputed) grant summary judgment, we include those relevant facts as set forth by here. Brian Kang CEO sole employee Mid Wilshire, doing business Social Wellness. Jones worked independent contractor half Social Wellness, set up “Lunch ‘n Learn” op portunities doctors provide wellness presentations at companies. At those presentations, doctors pre order food attendees, behalf Social Wellness, Jones contacted Restaurants, Inc.—the owner cer tain Olive Garden trademarks—to explore strategic alli ance. Specifically, Jones sought permission use Olive Garden logo advertising promote So cial Wellness’s programs offering Olive Garden food attendees. handled all communications between Darden, Kang never communicated anyone Darden. *3 ‐
A series email and phone communications ensued tween Jones and various persons at Darden. Initially, Jones communicated with Kasha Momot, who then Director Brand Management at Darden. Momot and Jones exchanged emails and spoke once twice by phone begin ning in July Jones also communicated with Ken Bott, Director Commerce Programs Partnerships for Darden. A month two after initial email with Jones, Momot left employment elsewhere. After Momot’s departure, Jones communicated primarily with Bott.
A series emails possibly phone calls took place beginning in early September between Jones Bott, in which marketing possibilities discussed in more detail. those communications, Jones proposed market ing Social Wellness engage email marketing, first by sending emails test group informing people where food purchased wellness presentations, way Social deter mine whether incorporating Olive Garden name resulted greater interest enrollment Wellness’s pro grams. Jones sent mock ‐ up email using different company’s logo, although mock up exact email us ing an Olive Garden logo ever proposed.
Jones also had contact another employee Darden, Roberto Sanchez, one point. Jones contacted Bott because some doctors problems ordering online Olive Gar den, Bott asked Sanchez help Jones online ordering process. Thereafter, Sanchez spoke Jones phone “Online Ordering Guide.”
No advertising medium other than email was ever dis ‐ cussed communications regarding potential mar keting between Darden and Social Wellness. Despite that, Social Wellness engaged a marketing effort by fax, using Olive Garden logo on a flyer was created us ing Photoshop by a person who Kang and Jones found on Craigslist. Kang and Jones obtained Olive Garden logo and a picture food through Google searches and/or online company selling photos—not from Darden—and cluded logo and picture flyer. The flyer stated Social Wellness was teaming up Olive Garden a “Lunch n’ Learn” and a complimentary catered lunch provided. All contact information flyer such as email address and phone number was Social Well ness. flyer was faxed fax numbers Social Well ness obtained from Google search and from a list pur chased person Craigslist. Bott never saw flyer prior distribution, and Jones admitted he never discussed Darden possibility sending faxes email marketing discussed. marketing by also inconsistent Darden’s practices. generally does market fax, nor practice enter into partnerships without number protections. Specifically, Darden’s practice en tering into partnerships require senior management sign off, utilize written agreements including mas ter services agreement statement work outlining logo usage business expectations, well nondisclosure agreement. never entered into contract together pay each any money. Regarding authorization use Olive Garden logo, Bott maintains permission ever given, *5 ‐ asserts “Bott told him Darden had ’no problem your telling your companies where food coming from.’” Dist. Ct. Mem. Op. and Order ‐ ‐
That faxed flyer received by Caregiv ers, Ltd., on October 31, 2014, and filed suit against Darden, Social Wellness, Kang, and on December 17, alleging faxed advertisement violated TCPA. That Act addresses in part problem unsolicited fax advertisements which result in unwanted cost recipient in terms impeding access their machine business uses cost operation machine.
Darden then sent cease ‐ desist letter Kang Social Wellness demanding they cease using Darden’s Olive Garden trademark. Social Wellness responded email Darden’s counsel Kang he stated “[t]his letter inform you Dardens [sic] Restaurants & Olive Garden had nothing do message sent Caregivers LTD. It totally Social Wellness Group just trying offer free lecture health wellness.” subsequently sued Social Wellness Kang trademark infringement, alleging continued use Olive Garden trademarks faxes third par ties. appear lawsuit, obtained default judgment permanent injunc tion matter. court’s order found that, default, relevant facts complaint admitted including willful infringement Olive Garden trade marks.
In TCPA action, Helping Hand served all defendants but Darden appeared. Wellness, Kang, and did appear, and Helping Hand did not move for class status nor it seek to hold them in default. Helping Hand sought numerous depositions, including from Darden em ployees Bott Sanchez former employee Momot. court allowed deposition Bott, but to avoid conducting depositions without all parties to case, stayed further depositions Darden employees until Helping Hand brought forward plan either bring remaining defendants into case pursue default judgment. Helping Hand proceeded depose Bott, Kang Jones. After those depositions, court declined lift stay further depositions after Helping Hand indicated it still had either bring those defendants into case move default judgment. then moved for sum mary judgment, response motion summary judgment, Helping Hand filed motion Rule 56(d) requesting stay lifted so it depose Momot Sanchez. denied stay request, however, holding Helping Hand failed explain how depositions either person add information available Jones, Kang, Bott, all whom already deposed, granted summary judgment favor against plaintiff. this appeal, challenges grant summary judgment against two grounds. On mer its, argues erred application agency law granting summary judgment. It also argues erred refusing lift stay depositions refusing grant Rule 56(d) motion. *7 7
We turn then Helping Hand’s challenge the legal principles applied the court. granting summary judgment Darden, the reasoned that Helping Hand had failed show acted as Darden’s agent it express, implied, or apparent authority from send faxes on behalf. serts the erred relying on agency principles, language the statute regulation instead estab lishes can be directly liable if it benefitted promotion advertisement regardless whether it authorized it.
statute issue provides unlawful “to use telephone facsimile machine, computer, or device send, telephone facsimile machine, an unsolicited ad vertisement,” unless fell within one exceptions such sender has established business relationship recipient, recipient made number available through specified means, or unsolicited advertisement contained notice meeting certain statutory requirements. U.S.C. § 227(b)(1)(C); Bridgeview Health Care Ctr., Ltd. Clark 2016). regulations have defined “sender” “the person or entity whose half facsimile unsolicited advertisement or whose goods or services are advertised or promoted unsolic ited advertisement.” C.F.R. § 64.1200(f)(10).
focuses language second clause regulation—which defines sender include “a person entity … whose goods services are adver tised promoted unsolicited advertisement.” Id . It argues provision lacks “on whose behalf” lan guage first clause, therefore imposes direct lia *8 8 17 1282 bility standard anyone whose goods or services were promoted advertisement. Under that provision, ar ‐ gues, Darden is liable advertisement of Olive Garden regardless whether advertisement sent its be half or its authorization. contends Social Wellness entered into a “strategic alli ance” Social whereby benefitted faxes Wellness, Olive Garden re ceived more business following fax, therefore liable under second clause regulation. points decisions circuits, Palm Beach Golf Ctr.–Boca, Inc. v. John G. Sarris, D.D.S., P.A ., F.3d 1245 (11th Cir. 2015), Siding Insulation Co. v. Alco Vending, Inc. , F.3d (6th Cir. 2016), consistent its inter pretation TCPA liability under regulation.
Clark we considered same statute regulation rejected interpretation hold an entity strictly liable if goods or services advertised a regardless authorization such advertisement. We reaffirmed holding Paldo Sign & Dis play Co. Wagener Equities, Inc. 2016), noting strict liability approach, compet itor send out thousands unsolicited facts promoting another company’s goods services, thereby bankrupting company, even though company played part sending authorizing faxes. Id . We noted “[a]lthough literal language regulation suggests such result possible, … be liable sender, person must have done something advertise goods ser vices.” Id . Therefore, both Clark Wagener we held agency rules should applied determine whether ac *9 17 ‐ 1282 9 tion done on behalf a principal. Clark , F.3d at 938; Wagener F.3d at 797.
Although argues that those holdings are inconsistent circuit decisions, that argument does withstand scrutiny. In Palm Beach Golf Center Elev ‐ enth Circuit held that a person whose services are advertised unsolicited fax transmission held liable direct ly TCPA so long as advertisement sent “on its behalf.“ F.3d at 1254. Thus, that decision is con sistent our recognition that liability attaches those persons entities whose behalf unsolicited sent.
Sixth Circuit’s decision Alco Vending included lan guage interpreting second clause regulation im posing a strict liability standard, but held that conduct case preceded addition language therefore impose standard case. at 891–92. In a subsequent decision, however, Health One Medi cal Center, Eastpointe P.L.L.C. Mohawk, Inc., 2018), Sixth Circuit addressed case fac tually analogous this one, rejected strict liability standard. In case, Mohawk Medical, pharmaceutical wholesaler, unsolicited faxes medical providers ad vertising prices for various drugs. Id . addition suing Mohawk Medical, whom obtained default judgment, medical provider sued Bristol Meyers Squibb Pfizer based theory they “sent” faxes purposes TCPA because drugs they manufac tured among ones which discounted pricing advertised faxes. Id . Sixth Circuit looked language statute itself requires person *10 “use … device send, to a telephone facsimile machine, an unsolicited advertisement.” Id .; U.S.C. § 227(b)(1)(C). The court held that by language, therefore, the statute re quires that defendant must “send” an advertisement, the common meaning of send is either cause be con veyed or dispatch. Mohawk at 801. The held the defendants neither caused the faxes be conveyed nor they dispatch them, therefore could not be liable under statue. Id . The held regulation must be read context statutory text it implements, therefore could not be read as expanding liability person or entity who could not be characterized sender. Id . at 802. held Alco Vending could be read holding “an innocent party—like Bristol Pfizer here— could by some legal alchemy be held liable having ‘sent’ faxes.” Id . Therefore, after Mohawk it is clear Sixth Circuit interpretation statute is inconsistent our caselaw recognizing defendant who has no connection whatsoever sending fax cannot held liable TCPA.
That is clear import plain language stat ute. Nothing statute allows imposition liability entity wholly unaware use logo fax. interpretation adopted this circuit Clark Wagener proper, there reason us depart it now.
Under standard, demonstrate liability if produced evidence had ex press actual authority send Darden’s behalf, even if implied actual authority apparent authority. Clark has failed provide *11 any such evidence. At best, it provided testimony that Jones, representing Wellness, engaged discussions regarding a joint marketing involve sending of emails. No wri tt en or digital correspondence, or testimony, indicates any discussion of fax advertising. fact, Jones—who responsible for sending fax adver ‐ tisement—acknowledged that there never any discus ‐ sion of sending fax advertisements. Helping Hand fails its arguments distinguish type of mar keting discussed, but course type marketing is pre cisely issue implicates TCPA liability. Email market ing does run awry TCPA; relevant question here whether there were any communications indicate authorization send a fax advertisement, issue Bo tt are agreement adver tisements discussed or approved, wri tt en or testimonial evidence allows for a contrary inference. asserts, however, lack such ev idence result district court’s refusal allow depose two witnesses—Kasha Momot Roberto Sanchez—and erred refusing discovery denying subsequent motion Federal Rule Civil Procedure 56(d). Rule 56(d) provides “[i]f non movant shows ffi davit or declaration that, for speci fi ed reasons, cannot present facts essential justify opposi tion, may: (1) defer considering motion or deny it; (2) allow time obtain ffi davits declarations take discovery; (3) issue appropriate order.” As acknowledges, we review discovery decisions abuse discretion. Ku tt ner Zaruba 2016). Moreover, “’[a] trial judge’s decision consider defendant’s motion sum *12 1282 mary judgment before allowing plainti ff depose cer tain witnesses discovery ma tt er, which we review abuse discretion standard.’” Davis v. G.N. Mortg. Corp. , F.3d 869, (7th Cir. 2005), quoting Grayson O’Neill , 815–16 2002). We will ffi rm such de terminations unless court’s ruling lacks basis in law or fact or clearly appears arbitrary. Ku tt ner at 974.
Both Momot Sanchez conversations with Jones, although timing nature their communications render them lesser players in discussions than Bo tt who deposed. Sanchez was consulted by Jones only assist online ordering process, nothing in docu ments testimony this case implies an involvement marketing discussions. And Momot not employ ee communications with Jones im mediately preceded fax advertisement, she left early September Jones pointed his discussions Bo tt basis his belief he could send advertisements Olive Garden logo, both Bo tt Jones deposed. contention Momot Sanchez provide relevant testimony thus necessarily rests notion provided authorization engage fax advertising but re member he lied about it, because Jones—who fax advertisements—testi fi ed deposition he never discussed marketing anyone Darden.
We have held does abuse dis cretion denying additional discovery “where request ‘was based nothing more than mere speculation amount fi shing expedition.’” re Dairy Farmers *13 17 1282 13 of America, Inc. Cheese Antitrust Litig. 2015), quoting Davis at The mere hope, without more, of revealing “smoking gun” insu ffi cient to support unbounded discovery. See id . We need deter mine whether the discovery request in this case rested on more than speculative hope evidence, however, because the district court’s discovery determination must upheld more fundamental ground.
The district court this case deny the plainti ff the ability to take the depositions Momot Sanchez this case; the court merely required the plainti ff to proceed course action as to defendants before taking such depositions. At time deposition request, Momot was no longer an employee Darden. Sanchez was employee but as mentioned above was tasked help ing online ordering system there indica tion he had any involvement marketing issues. district court August stayed depositions as to those persons because three four defendants case yet to appear although they had been served, plainti ff unable tell court what plan either bring those defendants into action move de fault as them. court expressed same concerns subsequent hearings October June when again asked lift stay depo sitions. once again unable inform respect those defendants ei ther bring them into remove them case.
Decisions district cut o ff limit discovery so avoid piecemeal litigation fall squarely within management province court. Kallal CIBA *14 17 1282 Vision Corp ., F.3d 443, 446–47 (7th Cir. 2015). Here, properly concerned with expansion depositions prior to determination to whether plainti ff would proceed its case against remaining defendants. Its determination to stay further depositions reasonable means streamlining discovery, encouraging prosecution case, and avoiding duplication discovery would occur if defendants subsequently appeared case sought same depositions. power to obtain depositions this case rested squarely Hand—with requiring Helping to reveal either to seek default to otherwise proceed against remaining defendants. It insubstantial burden, but one chose to ignore. It now argues it did not want to seek default because it impede likelihood obtaining class status, but did not present justi fi cation district move for class status despite having completed depositions main parties marketing conversations. We consistently have upheld court’s discretion manage cases control discovery, do so here. See Citizens for Appropriate Rural Roads v. Foxx 1068, (7th Cir. 2016) (“[a] party who fails comply deadlines related discovery otherwise forestalls prosecution their own case is entitled seek additional discovery when opposing side moves summary judgment.”); Olivieri Rodriguez 1997) (“[p]retrial discovery time consuming expensive; protracts complicates litigation; judges are commended rather than criticized keeping tight reins it.”). Where failure secure discovery due party’s own lack diligence, *15 district court can its discretion hold party to consequences its choice decide summary judgment motion. See, e.g., Davis 886; Flint City Belvidere 2015). Here, Helping Hand chose to ignore remaining defendants despite court’s repeated determination it proceed those depositions until formulated plan address those defendants so ensure manageable discovery procedure. Its lack diligence responding court’s concerns addressing issue left consequence inability take those depositions prior disposition summary judgment motion. district abuse its discretion its case management decision been clearly communicated holding Helping Hand its own choices, particularly where action requested inform address prosecution case against remaining defendants.
Accordingly, decision AFFIRMED.