Stevens-Bratton v. Trugreen, Inc.

• Decision Date: 04 February 2020
• Docket Number: No. 2:15-2472,2:15-2472
• Citation: 437 F.Supp.3d 648
• Parties: Kasie STEVENS-BRATTON, individually and on behalf of all others similarly situated, Plaintiff, v. TRUGREEN, INC., Defendant.
• Court: U.S. District Court — Western District of Tennessee

437 F.Supp.3d 648

Kasie STEVENS-BRATTON, individually and on behalf of all others similarly situated, Plaintiff,

v.TRUGREEN, INC., Defendant.

No. 2:15-2472

United States District Court, W.D. Tennessee, Western Division.

Signed February 4, 2020

Adam R. Gonnelli, Pro Hac Vice, The Sultzer Law Group, Red Bank, NJ, J. Gerard Stranch, IV, Benjamin Andrew Gastel, Seamus Timothy Kelly, Branstetter Stranch & Jennings, PLLC, Nashville, TN, Adrienne D. McEntee, Pro Hac Vice, Beth E. Terrell, Pro Hac Vice, Jennifer Rust Murray, Pro Hac Vice, Terrell Marshall Law Group PLLC, Mary B. Reiten, Pro Hac Vice, Law Office of Mary B. Reiten PLLC, Seattle, WA, Innessa Melamed Huot, Pro Hac Vice, Faruqi & Faruqi, LLP, New York, NY, for Plaintiff.

George T. Lewis, III, Ryan Andrew Strain, Austin K. Purvis, Matthew Sinon Mulqueen, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Mitchell S. Ashkenaz, Fedex, Freight, Inc., Memphis, TN, for Defendant.

ORDER

SAMUEL H. MAYS, JR., UNITED STATES DISTRICT JUDGE

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, 47 U.S.C. § 227 (the "TCPA"). (ECF No. 1.) This order addresses two motions. The first motion is TruGreen's October 17, 2017 Motion for Summary Judgment. (ECF No. 109.) Stevens-Bratton responded on November 14, 2017. (ECF No. 117.) TruGreen replied on November 28, 2017. (ECF No. 122.)

The second motion is TruGreen's September 12, 2018 Motion for Partial Summary Judgment. (ECF No. 156.) Stevens-Bratton responded on 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 were made by an automatic telephone dialing system ("ATDS"). (See ECF No. 1 ¶¶ 29-30.) Stevens-Bratton asked TruGreen to stop calling, but the calls continued. (ECF No. 164 ¶ 14.)

On July 15, 2015, Stevens-Bratton filed 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 47 U.S.C. § 227(b)(1)(A) and 47 U.S.C. § 227(b)(3).¹ (Id. ¶¶ 18, 45-52.) Her third and fourth causes of action allege that TruGreen initiated telemarketing calls to her without following its internal procedures for maintaining a list of people who asked not to receive calls, in violation of 47 U.S.C. § 227(c)(5) and 47 C.F.R. § 64.1200(d). (Id. ¶¶ 53-60.) Her fifth and sixth causes of action allege that that TruGreen called her more than once in a twelve-month period despite her registration on the National Do-Not-Call Registry, in violation of 47 U.S.C. § 227(c)(5) and 47 C.F.R. § 64.1200(c). (Id. ¶¶ 61-68.)

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, 2015, TruGreen filed an answer and a motion to dismiss and compel arbitration or, in the alternative, to stay the litigation. (ECF Nos. 22, 24.) On January 12, 2016, the Court denied Stevens-Bratton's motion for class certification, granted TruGreen's motion to compel arbitration, dismissed all claims against TruGreen, and entered a judgment for TruGreen. (ECF Nos. 44-45.) Stevens-Bratton appealed, and the 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 Motion for Summary Judgment. (ECF No. 156.)

II. Jurisdiction

The Court has jurisdiction over Stevens-Bratton's claims. Under 28 U.S.C. § 1331, United States district courts have original jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States." Stevens-Bratton's complaint alleges violations of the TCPA. (ECF No. 1.) The Court has federal question jurisdiction. See Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 376, 132 S.Ct. 740, 181 L.Ed.2d 881 (2012) ; accord Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 463-65 (6th Cir. 2010).

III. Standard of Review

Under Federal Rule of Civil Procedure 56, a court must grant a party's motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party must show that the nonmoving party, having had sufficient opportunity for discovery, lacks evidence to support an essential element of its case. See Fed. R. Civ. P. 56(c)(1) ; Peeples v. City of Detroit, 891 F.3d 622, 630 (6th Cir. 2018).

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 Fed. R. Civ. P. 56(c). "A ‘genuine’ dispute exists when the plaintiff presents ‘significant probative evidence’ ‘on which a reasonable jury could return a verdict for her.’ " EEOC v. Ford Motor Co., 782 F.3d 753, 760 (6th Cir. 2015) (en banc) (quoting Chappell v. City of Cleveland, 585 F.3d 901, 913 (6th Cir. 2009) ). The nonmoving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Lossia v. Flagstar Bancorp, Inc., 895 F.3d 423, 428 (6th Cir. 2018) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

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 to claims one and two, TruGreen contends that the undisputed material facts show that TruGreen did not use an ATDS to call Stevens-Bratton. (ECF No. 109-1 at 6-13.) As to claims three through six, TruGreen contends that Stevens-Bratton cannot satisfy the "residential telephone subscriber" requirement of 47 C.F.R. § 64.1200(c) & (d). (ECF No. 109-1 at 13-15.)

1. Claims 1 and 2

Stevens-Bratton's first and second causes of action are brought under 47 U.S.C. § 227(b)(1)(A), which makes it unlawful for any person "to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice ... to any telephone number assigned to a ... cellular telephone service." 47 U.S.C. § 227(b)(1)(A). The TCPA defines the term "automatic telephone dialing system" as "equipment which has the capacity -- (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C. § 227(a)(1). The Federal Communications Commission ("FCC") has decided that "predictive dialers"² fall within the TCPA's statutory definition of an ADTS. 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 defeat 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). Federal Rule of Civil Procedure 56 permits a court to deny a motion for summary judgment "[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition...." Fed. R. Civ. P. 56(d)(1) ; see also Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004). "[A] grant of summary judgment is improper if the non-movant is given an insufficient opportunity for...