Stevens-Bratton v. Trugreen, Inc.Stevens-Bratton v. Trugreen, Inc.
ORDER
On July 15, 2015, Plaintiff Kasie Stevens-Bratton filed this putative class action against Defendant TruGreen, Inc., alleging violations of the Telephone Consumer Protection Act,
The second motion is TruGreen‘s September 12, 2018 Motion for Partial Summary Judgment. (ECF No. 156.) Stevens-Bratton responded оn November 9, 2018. (ECF No. 163.) TruGreen replied on November 30, 2018. (ECF No. 170.)
For the following reasons, TruGreen‘s October 17, 2017 Motion for Summary Judgment is DENIED in part and GRANTED in part. TruGreen‘s September 12, 2018 Motion for Partial Summary Judgment is DENIED AS MOOT.
I. Background
TruGreen is a lawn care service provider with its headquarters in Memphis, Tennessee. (ECF No. 118 ¶ 1.) On May 15, 2013, Stevens-Bratton entered into an agreement with TruGreen for lawn care services. (Id. ¶ 2.) On this service agreement, Stevens-Bratton provided two telephone numbers in boxes labeled “Home Phone” and “Cell Phone.” (Id. ¶ 5.) TruGreen agreed to provide lawn care services from May 15, 2013, until May 15, 2014. (Id. ¶ 3.) On November 9, 2013, Stevens-Bratton registered her cellular telephone number with the National Do-Not-Call Registry. (ECF No. 164 ¶ 14.)
On January 27, 2015, Stevens-Bratton began to receive telemarketing calls from TruGreen on her cellular telephone. (ECF No. 164 at ¶ 2.) Stevens-Bratton alleges those calls
On July 15, 2015, Stevens-Bratton filеd this putative class action against TruGreen, alleging violations of the TCPA. (ECF No. 1.) In her complaint she states six claims. Her first two
causes of action allege that TruGreen used an ATDS to make “more than ten telemarketing calls” to her cellular telephone after January 27, 2015” in violation of
On July 15, 2015, Stevens-Bratton sought class certification or, in the alternative, a stay of certification briefing pending discovery. (ECF No. 9.) On August 26,
Sixth Circuit reversed on January 11, 2017. See Stevens-Bratton v. TruGreen, Inc., 675 F. App‘x 563, 565 (6th Cir. 2017); (ECF No. 50).
On October 17, 2017, TruGreen filed a motion for summary judgment on all of Stevens-Bratton‘s claims. (ECF No. 109.) The parties filed timely response and reply briefs, respectively. (ECF Nos. 117, 122.) On September 12, 2018, TruGreen filed a motion for partial summary judgment on four of Stevens-Bratton‘s six claims, offering arguments different from those raised in its October 17, 2017 Motiоn for Summary Judgment. (ECF No. 156.)
II. Jurisdiction
The Court has jurisdiction over Stevens-Bratton‘s claims. Under
III. Standard of Review
Under
The moving party must show that the nоnmoving party, having had sufficient opportunity for discovery, lacks evidence to support an essential element of its case. See
When confronted with a properly supported motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine dispute for trial. See
Although summary judgment must be used carefully, it “is an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action[,] rather than a disfavored procedural shortcut.” FDIC v. Jeff Miller Stables, 573 F.3d 289, 294 (6th Cir. 2009) (quotation marks and citations omitted).
IV. Analysis
A. October 17, 2017 Motion for Summary Judgment
In TruGreen‘s October 17, 2017 Motion, it seeks summary judgment on all of Stevens-Bratton‘s claims. (ECF No. 109.) As
1. Claims 1 and 2
Stevens-Bratton‘s first and second causes of action are brought under
has decided that “predictive dialers”2 fall within the TCPA‘s statutory definition of an ATDS. See In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14091-93 (2003).
TruGreen argues that it is entitled to summary judgment on claims one and two because the undisputed evidence proves that it did not call Stevens-Bratton using an ATDS. (ECF No. 109-1 at 6-13.) Stevens-Bratton responds that summary judgment is premature because discovery had just commenced at the time TruGreen filed its Motion and she needs more time to conduct discovery on the ATDS issue. (ECF No. 117 at 7-13.)
TruGreen is not entitled to summary judgment on Stevens-Bratton‘s first two claims based on the facts developed at the time of the Motion. “It is well-established that the plaintiff must receive ‘a full opportunity to conduct discovery’ to be able to successfully defеat a motion for summary judgment.” Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)).
When TruGreen filed its Motion, Stevens-Bratton had not had an opportunity to engage in meaningful discovery. The first scheduling order in this case was not entered until about three weeks after TruGreen filed its Motion. (ECF No. 116.) Initial disclosures were due about two weeks later. (See id. ¶ 3.) Stevens-Bratton had not yet had a substantive chance to procure
any discovery responses, deposition testimony, or expert testimony.
TruGreen relies principally on declarations to support its Motion. (See ECF Nos. 110-1, 110-2.) Stevens-Bratton, through an attorney declaration, submits that, when the Motion was filed, she had not yet had an opportunity to test those declarations by way of depositions, internal documents, or information from third-party vendors. (ECF No. 119 ¶¶ 2-10.) That is sufficient to preclude a grant of summary judgment at this time.
TruGreen contends that Stevens-Bratton‘s lack of opportunity does not matter because “[n]o amount of discovery is going to change the fact that TruGreen‘s employees” did not use an ATDS to call Stevens-Bratton. (ECF No. 122 at 4.) TruGreen contends that discovery would be “a futile fishing expedition.” (Id.)
The parties have had the opportunity for further discovery. They can now address summary judgment on Stevens-Bratton‘s first two claims with the benefit of an adequate record. TruGreen‘s motion is DENIED on claims one and two.
2. Claims 3, 4, 5, and 6
Stevens-Bratton‘s third, fourth, fifth, and sixth causes of action allege that TruGreen violated the TCPA by: (a) initiating telemarketing calls to Stevens-Bratton withоut following internal procedures for maintaining a list of people who ask not to receive telemarketing calls (i.e., an internal do-not-call list); and
(b) initiating more than one telephone solicitation within a twelve-month period to Stevens-Bratton despite her registering her telephone number with the National Do-Not-Call Registry. (ECF No. 1 ¶¶ 53-68.) TruGreen makes two arguments that it is entitled to summary judgment on claims three through six: (1) Stevens-Bratton is not a “residential telephone subscriber” because she provided both a cellular telephone number and a home telephone number in her service agreement with TruGreen; and (2) Stevens-Bratton has failed to prove that she is a “residential telephone subscriber” because she does not present sufficient evidence that she used her cellular telephone for residential purposes. (ECF No. 109-1 at 13-15.) TruGreen‘s second argument is compelling.
a list of persons who request
To succeed on a claim alleging violations of the relevant regulations, a plaintiff must prove, inter alia, that she was a “residential telephone subscriber.” See
vacated in part on other grounds, 80 F. Supp. 3d 917, 920 (C.D. Ill. 2015)).
It is undisputed that Stevens-Bratton received calls from TruGreen on her cellular telephone. (ECF No. 164 ¶ 2.) Some courts have found that calls to cellular telephones, in part because of their inherent characteristics, categorically fail to satisfy the “residential telephone subscriber” element of the relevant TCPA regulations. See Cunningham v. Politi, No. 18-cv-00362-ALMCAN, 2019 WL 2517085, at *4 (E.D. Tex. Apr. 30, 2019) (collecting cases), report and recommendation adopted by 2019 WL 2524737 (E.D. Tex. June 19, 2019); see also Shelton v. Fast Advance Funding, LLC, 378 F. Supp. 3d 356, 362 n.7 (E.D. Pa. 2019) (questioning whether cellular telephone subscribers were intended to be included in the definition of “residential telephone subscriber“). One of these cases has relied on the logic that the TCPA “generally distinguishes between ‘residential’ lines and other protected lines, although it provides some protections to the owners of both.” See Cunningham v. Rapid Response Monitoring Servs., Inc., 251 F. Supp. 3d 1187, 1201 (M.D. Tenn. 2017) (comparing
(“[T]he TCPA differentiates between calls made to cellular and residential lines.“). The Court does not agree with those cases.
restrictive and inconsistent with the intent” of the TCPA).3 Cellular telephones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Riley v. California, 573 U.S. 373, 385 (2014). Cellular telephones can be used for residential purposes. The privacy interests they implicate are just as strong as wirelines, perhaps more so. See Riley, 573 U.S. at 393-98; see also Carpenter v. United States, 138 S. Ct. 2206, 2218 (2018). A cellular telephone can satisfy the “residential telephone subscriber” element of
implication -- the statute‘s application to cell phone calls.“). A plaintiff, however, must put forth evidence establishing that her cellular telephone is used for residential purposes. See Cunningham v. McDonald, No. 3:15-cv-215, 2018 WL 6737418, at *2 (M.D. Tenn. Nov. 5, 2018), report and recommendation adopted by 2018 WL 6198417 (M.D. Tenn. Nov. 28, 2018); Cunningham v. Capital Advance Solutions, LLC, No. 17-cv-13050-FLW, 2018 WL 6061405, at *5 (D.N.J. Nov. 20, 2018); Cunningham v. Rapid Capital Funding, LLC/RCF, No. 3:16-CV-02629, 2017 WL 3574451, at *3 (M.D. Tenn. July 27, 2017), reрort and recommendation adopted sub nom. 2017 WL 3776165 (M.D. Tenn. Aug. 31, 2017). That is where Stevens-Bratton fails.
Stevens-Bratton makes several arguments that there is a genuine issue of material fact about her ability to satisfy the residential telephone subscriber element. None is persuasive. First, she cites a declaration that she filed contemporaneously with her response to TruGreen‘s first motion for summary judgment. (ECF No. 117 at 14.) In her declaration, she states: “I affirm that I have used my cellular phone, (501) 802-XXXX, as both my residential line аnd mobile line since May 2005. I have not [sic] a dedicated landline since May 2005.” (ECF No. 120 ¶ 2.) That is not enough to establish that she uses her telephone for residential purposes. The first part is conclusory and simply states the legal requirement. See Bryant v. Kentucky, 490 F.2d 1273 (6th Cir. 1974)
(conclusory allegations, without more, are not enough to survive summary judgment); Capital Telecom Holdings II, LLC v. Grove City, Ohio, 403 F. Supp. 3d 643, 649 (S.D. Ohio 2019) (“[S]elf-serving affidavits alone are not enough to create an issue of fact sufficient to survive summary judgment.“); Bd. of Trustees of The Plumbers v. Humbert, No. 1:13-cv-4, 2016 WL 705243, at *10 (S.D. Ohio Feb. 23, 2016) (self-serving testimonial affidavits were insufficient to create а genuine issue of material fact absent other corroborating evidence) (subsequent history omitted).
The second part of Stevens-Bratton‘s declaration is not corroborated, but is contradicted, by the undisputed material fact that on the service agreement she signed in 2013, she provided two different telephone numbers in separate boxes labeled “Home Phone” and “Cell Phone.” (See ECF No. 118 ¶¶ 2, 5); Whitley v. Spencer Cty. Police Dep‘t, 178 F.3d 1298, 1999 WL 196499, at *3 (6th Cir. 1999) (unpublished table decision) (affirming district court‘s grant of summary judgment to defendant where the evidence at the close of discovery contradicted plaintiff‘s self-serving affidavits and conclusory allegations). Evidence of something more is required to meet TruGreen‘s Motion for Summary Judgment. See, e.g., Capital Advance Solutions, LLC, 2018 WL 6061405, at *5 (“residential subscriber” requirement satisfied at the motion to dismiss stage when plaintiff pled that he used his cellular telephone for “personal, family, and household use” and that he
“primarily relies on cellular phones to communicate with friends and family . . . uses his cell phone for navigation purposes, sending and receiving emails, timing food when cooking, and sending and receiving text message[s] . . . and the phone is not primarily used for any business purpose.“). Stevens-Bratton‘s first argument fails.
Second, Stevens-Bratton alleged in her complaint that she “registered her cellular telephone number with the National Do-Not-Call Registry on November 9, 2013.” (ECF No. 1 ¶ 24.) Stevens-Bratton argues that registering is sufficient to meet her burden because the FCC presumes that “wireless subscribers who ask to be put on the national do-not-call list [arе] ‘residential subscribers.‘” See Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. at 14039. Two district courts have concluded that, at the motion to dismiss stage, an allegation that one‘s cellular telephone number is listed on the National Do-Not-Call Registry creates a reasonable inference that one is a residential telephone subscriber as to that telephone. See Hodgin, 2015 WL 13022289, at *3; Phillips, 2014 WL 12589671, at *6 (“Phillips has alleged that he listed his cell phone number on the do-not-call registry; this necessarily implies that he is a residential telephone subscriber with respect to that phone, since the do-not-call registry is open only to residential telephone subscribers. Put another way, Phillips could not have registered his cell phone
number on the do-not-call registry unless he was a residential telephone subscriber. At the very least, his allegation that his cell phone number was listed on the do-not-call registry creates a reasonable inference that he is a residential telephone subscriber with respect to that phone.“).
The relevant part of the FCC‘s report and order provides:
Moreovеr, we believe it is more consistent with the overall intent of the TCPA to allow wireless subscribers to benefit from the full range of TCPA protections. As indicated above, Congress afforded wireless subscribers particular protections in the context of autodialers and prerecorded calls. In addition, although
Congress expressed concern with residential privacy, it also was concerned with the nuisance, expense and burden that telephone solicitations place on consumеrs. Therefore, we conclude that wireless subscribers may participate in the national do-not-call list. As a practical matter, since determining whether any particular wireless subscriber is a “residential subscriber” may be more fact-intensive than making the same determination for a wireline subscriber, we will presume wireless subscribers who ask to be put on the national do-not-call list to be “residential subscribers.” Such a presumption, however, may require a complaining wireless subscriber to provide further proof of the validity of that presumption should we need to take enforcement action.
Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. at 14039 (emphasis added). Although the FCC stated that any wireless subscriber who asks to be put on the list would be presumed to be a “residential subscriber[],” subject to further inquiry, the registrant is required to show that the cellular telephone was used for residential purposes. See id. The FCC‘s intent was to afford wireless subscribers privacy equal to wired
subscribers and to ease administrative requirements for the former. Sеe id. The FCC did not establish an evidentiary element for all registrants on the National Do-Not-Call Registry.4 See id.
Hodgin and Phillips allowed plaintiffs who pled that they were on the National Do-Not-Call Registry to survive a motion to dismiss because registration on the Registry leads to the reasonable inference that plaintiffs could produce proof that they were “residential telephone subscribers.” See Hodgin, 2015 WL 13022289, at *3; Phillips, 2014 WL 12589671, at *6. That pleading alone is not enough to survive summary judgment. The determination about “whether any particular wireless subsсriber is a ‘residential subscriber‘” is “fact-intensive.” Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. at 14039. Stevens-Bratton has submitted only a scintilla of evidence to assist this
fact-intensive determination. (See ECF No. 120 ¶ 2.) That is not enough. See Anderson, 477 U.S. at 252 (“The mere existence of a scintilla of evidence in support of the plaintiff‘s position will be insufficient.“). Her second argument fails.
Third, Stevens-Bratton argues that, regardless of the purpose for which she used her cellular telephone, the calls TruGreen placed to her were for residential purposes because TruGreen was trying to sell “residential lawn care services.” (ECF No. 117 at 14.) Stevens-Bratton cites no authority to support that argument. The Court has not found any cases interpreting
No other evidence in the record supports Stevens-Bratton‘s argument that the cellular telephone on which TruGreen called her was used for residential purposes. Summary judgment in favor of TruGreen is warranted on this issue. See Lee, 2016 WL 4382786, at *7 (granting summary judgment on this issue when “Plaintiff ha[d]
not come forward with any evidence showing how he used his cellular phone“).5
B. September 12, 2018 Motion for Partial Summary Judgment
In TruGreen‘s September 12, 2018 Motion, it moves for partial summary judgment on Stevens-Bratton‘s third, fоurth, fifth, and sixth causes of action. (ECF No. 156.) It offers alternative arguments to those made in its October 17, 2017 Motion. (Id.) Because the Court grants TruGreen‘s October 17, 2017 Motion on those claims, TruGreen‘s September 12, 2018 Motion for Partial Summary Judgment is DENIED AS MOOT.
V. Conclusion
For the foregoing reasons, TruGreen‘s October 17, 2017 Motion for Summary Judgment is DENIED in part and GRANTED in part. TruGreen‘s September 12, 2018 Motion for Partial Summary Judgment is DENIED AS MOOT.
So ordered this 4th day of February, 2020.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
Notes
See Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. at 14091.equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls. The hardware, when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers.