Gary v. Trueblue, Inc.

• Decision Date: 11 October 2018
• Docket Number: Case No. 17-cv-10544
• Parties: Kevin A. GARY, Plaintiff, v. TRUEBLUE, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

346 F.Supp.3d 1040

Kevin A. GARY, Plaintiff,

v.TRUEBLUE, INC., et al., Defendants.

Case No. 17-cv-10544

United States District Court, E.D. Michigan, Southern Division.

Signed October 11, 2018

Kevin A. Gary, Detroit, MI, pro se.

Scott W. Kraemer, Kuiper Orlebeke PC, Grand Rapids, MI, for Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' SECOND MOTION FOR SUMMARY JUDGMENT [# 49]

Hon. Gershwin A. Drain, United States District Court Judge

I. INTRODUCTION

Plaintiff Kevin Gary initiated this action against Defendants TrueBlue, Inc. (d/b/a People Ready, Inc. and Labor Ready, Inc.) on February 17, 2017. Dkt. No. 1. In his Complaint, Plaintiff alleged Defendants used prohibited equipment to send him over one-thousand text messages, in violation of 47 U.S.C. § 227(b)(1)(A)(iii), otherwise known as the Telephone Consumer Protection Act ("TCPA"). Id. at pp. 6-7 (Pg. ID 6-7).

On June 21, 2018, Defendants filed a Motion for Summary Judgment. Dkt. No. 38. With leave from the Court, Defendants filed a Second Motion for Summary Judgment on August 28, 2018. Dkt. No. 49. Plaintiff filed a Response on September 4, 2018. Dkt. No. 50. Defendants filed a Reply on September 18, 2018. Dkt. No. 52. The Court heard oral argument on October 10, 2018. Dkt. No. 54.

Present before the Court is Defendants' Second Motion for Summary Judgment [# 49]. For the reasons set forth below, the Court will GRANT Defendants' Motion.

II. BACKGROUND

People Ready, the successor entity of Labor Ready, is a staffing company that helps place unemployed blue-collar workers with job opportunities in the local community. Dkt. 49-1, p. 2 (Pg. ID 744). Traditionally, workers would arrive at the labor hall around 5:00 a.m. each morning to see whether there was any work available, and jobs would be assigned on a first-come, first-served basis. Id. at p. 3 (Pg. ID 745). Today, People Ready uses a messaging platform called WorkAlert to inform workers about potential jobs via text message. Id. Hence, workers no longer need to come into the office to learn about job opportunities. Id.

If a People Ready branch employee opts to use WorkAlert to fill an open position, the first step in placing a worker with a customer is for the employee to manually open the WorkAlert web browser application on their desktop computer and enter their log-in credentials. Id. at p. 4 (Pg. ID 746). Next, the branch employee is directed to the "work search" screen, where they must input criteria to search for potential workers. Id. at pp. 4-5 (Pg. ID 746-47). The branch employee then hits the "search" button, which returns a list of potential workers to whom the branch employee can consider sending a text message. Id. at p. 5 (Pg. ID 747). Once the branch employee is satisfied with the pool of potential workers, the employee will manually compose a text message that will go out to the workers who have opted into the WorkAlert program. Id.

According to Defendants' Director of Platform Solutions -- Cindi Knutson -- there is no way to send a text message through the WorkAlert system without the several steps of human intervention described above. Id. at p. 6 (Pg. ID 748). Even more, WorkAlert lacks the capability to randomly or sequentially text potential workers. Id.

Plaintiff applied to join Labor Ready on July 7, 2011. Dkt. No. 49-2, p. 6-7 (Pg. ID 754-55). When he did so, Plaintiff completed and signed an application form that contained a provision entitled, "Consent for Telephone Contact." Id. at p. 7 (Pg. ID 755). That provision stated, "I give Labor Ready my express permission and consent to call my phone number that I provided on my employment application for the sole purpose of alerting me to new job opportunities at Labor Ready." Id.

Since joining Labor Ready, Plaintiff asserts he has received over 5,600 text messages from Defendants through the WorkAlert system. Dkt. No. 50, p. 7 (Pg. ID 945). Plaintiff further asserts that on several occasions he revoked his consent to continue receiving those text messages. Id. In fact, on September 17, 2016, February 23, 2017, and February 26, 2017, Plaintiff texted the WorkAlert system, "Please don't contact me anymore." See Dkt. No. 50-4. In addition, Plaintiff has two documents from Defendants' branch employee -- Kristina Bellizzi -- dated February 22, 2017, indicating a request that Plaintiff be opted out of receiving messages through the WorkAlert system. See Dkt. No. 50-8. Despite this, Plaintiff has continued to receive text messages from WorkAlert. See Dkt. No. 50-5, pp. 29-51 (Pg. ID 1002-24); Dkt. No. 50-6. At the same time, it appears that Plaintiff opted back in to receiving text messages and continued to accept jobs via WorkAlert. See id.

Through the discovery process, Plaintiff learned that Defendants' WorkAlert system acts in conjunction with a third-party aggregator called mBlox. Dkt. No. 50, p. 7 (Pg. ID 945). According to Defendants, "Text messages leave Work Alert, go to mBlox (SMS provider) and are then sent to each worker's wireless carrier to be delivered to the individual's cell phone." Dkt. No. 50-9, p. 2 (Pg. ID 1072). Plaintiff now claims that mBlox is a fully-automated-text-messaging system regulated by the TCPA. See Dkt. No. 50, p. 7 (Pg. ID 945). And because Defendants' WorkAlert system acts in conjunction with mBlox, Plaintiff suggests Defendants' text messages violate section 227(b)(1)(A)(iii) of the TCPA. See id.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 56(c) empowers a court to grant summary judgment if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Cehrs v. Ne. Ohio Alzheimer's Research Ctr. , 155 F.3d 775, 779 (6th Cir. 1998). The evidence and all reasonable inferences must be construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is a genuine issue of material fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Mere allegations or denials in the non-movant's pleadings will not suffice, nor will a mere scintilla of evidence supporting the non-moving party. Id. at 248, 252, 106 S.Ct. 2505. Rather, there must be evidence on which a jury could reasonably find for the non-movant. Id. at 252, 106 S.Ct. 2505.

IV. DISCUSSION

A. The Telephone Consumer Protection Act

Congress enacted the TCPA in response to consumer complaints about unwanted calls and text messages from telemarketers. ACA Int'l v. FCC , 885 F.3d 687, 691 (D.C. Cir. 2018). The TCPA, in relevant part, prohibits any person from using an automatic telephone dialing system to make a call or send a text message to another person without that person's consent. See 47 U.S.C. § 227(b)(1)(A)(iii) ; Keating v. Peterson's Nelnet, LLC , 615 Fed. Appx. 365, 370 (6th Cir. 2015). Under the Act, an automatic telephone dialing system is defined as equipment with the "capacity" (1) to store or produce telephone numbers to be called, using a random or sequential number generator, and (2) to dial such numbers. 47 U.S.C. § 227(a)(1).

Congress delegated authority to the Federal Communications Commission ("FCC") to prescribe regulations enforcing the TCPA. See 47 U.S.C. § 227(b)(2). Since then, the FCC has issued a series of orders and rulings. See e.g. , In re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 18 FCC Rcd. 14014 (F.C.C. July 3, 2003) ; In re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 23 FCC Rcd. 559 (F.C.C. Jan. 4, 2008) ; In re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 30 FCC Rcd. 7961 (F.C.C. July 20, 2015) (hereinafter " 2015 Ruling").

Relevant to the case at hand, the FCC's 2015 Ruling sought to clarify two open questions: (1) what did it mean for a telephone system to have the "capacity" to perform the autodial functions enumerated in section 227(a)(1) of the TCPA; and (2) what did those functions entail? See 2015 Ruling, 30 FCC Rcd. at 7974-75. First, the FCC determined that the term "capacity" referred not only to a system's present capabilities, but also to its "potential functionalities." 2015 Ruling, 30 FCC Rcd. at 7974. Second, the FCC noted that dialing equipment could store or produce, and dial random or sequential numbers, and that this included calling from a set list. Id. at 7971-72. Further, the FCC reaffirmed that a basic function of an autodialer is having the ability to dial thousands of numbers in a short period of time without human intervention. Id. at 7975. But the FCC failed to clarify whether a system that did require human intervention could still qualify as an automatic telephone dialing system. See id.

Faced with confusion, the D.C. Circuit recently set aside the above portions of the FCC's decision. See ACA Int'l , 885 F.3d at 692 ; 28 U.S.C. § 2342(1) ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of – all final orders of the Federal Communications Commission."). The D.C. Circuit held:

The order's lack of clarity about which functions qualify a device as an autodialer compounds the unreasonableness of the Commission's expansive understanding of when a device has the "capacity" to perform the necessary functions. We must therefore set aside the Commission's treatment of those matters.

ACA International , 885 F.3d at 703.

In ACA International , eleven petitions for review of the FCC's 2015 Ruling were consolidated in the D.C. Circuit. Sixth Circuit case law suggests that this makes the D.C. Circuit's decision to set aside the 2015 Ruling binding on this Court. Indeed, in Sandusky Wellness Center, LLC v. ASD Specialty Healthcare, Inc. , the Sixth Circuit recognized that once the Multidistrict Litigation Panel assigned petitions...