Cunningham v. Rapid Capital Funding, LLC/RCF et al

Filing 120

ORDER ADOPTING REPORT AND RECOMMENDATIONS: The Report and Recommendation of the Magistrate Judge ( 115 ) is adopted and approved. Accordingly, Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint ( 66 ) is GRANTED in part (as to Count 1) and DENIED in part (as to Count 2). In addition, Defendants' request to strike Plaintiff's prayer for pro se attorneys' fees is GRANTED. Signed by District Judge Aleta A. Trauger on 8/31/17. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CRAIG CUNNINGHAM,
Plaintiff
v.
RAPID CAPITAL FUNDING,
LLC, et al.,
Defendants

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NO. 3:16-cv-02629
JUDGE TRAUGER

ORDER
Pending before the court are a Report and Recommendation of the Magistrate Judge (Docket
No. 115), Objections filed by the Plaintiff (Docket No. 116), and a Response filed by Defendants
(Docket No. 118).
Pursuant to 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b)(3) and Local Rule 72.03(b)(3), the
court has reviewed de novo the portions of the Report and Recommendation to which Plaintiff
objects, the Objections, the Response, and the file. The Objections of the Plaintiff are overruled, and
the Report and Recommendation is adopted and approved.
Plaintiff objects to the Magistrate Judge’s recommendation that Count I of his Second
Amended Complaint be dismissed. Plaintiff cites to and quotes from an FCC Report and Order to
argue that cell phones have a presumption of being “residential lines.” Defendants contend that
Plaintiff has selectively mis-quoted the relevant section of the FCC Report and Order.
The Local Rules of this Court require that citations to administrative opinions not reported
in one of the West Publishing Company publications shall include Westlaw or Lexis citations and
shall be accompanied by a copy of the entire text of the decision. Local Rule 7.01(e)(5). Failure to

comply with the provisions of Rule 7.01(e)(5) may result in non-consideration by the court of the
cited documents. Local Rule 7.01(e)(6). Plaintiff has not filed a copy of the FCC Report upon which
he relies and has not provided a Westlaw or Lexis cite therefor. Without the complete text of this
FCC opinion, the court cannot determine whether Plaintiff’s citation and quote are accurate or
appropriate.
In any event, Plaintiff has not shown that any of his cellular telephones are used for
residential purposes. As noted by the Magistrate Judge, calls to a cellular phone may be construed
as calls to a residential phone, but the Plaintiff must plead facts showing that the cell phone is used
for residential purposes. Docket No. 115 at 5 (citing Cunningham v. Rapid Response Monitoring
Servs., Inc., 2017 WL 1489052 at * 9 (M.D. Tenn. Apr. 26, 2017)).
For these reasons, the Objections of the Plaintiff are overruled, and the Report and
Recommendation of the Magistrate Judge (Docket No. 115) is adopted and approved. Accordingly,
Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint (Docket No. 66) is
GRANTED in part (as to Count 1) and DENIED in part (as to Count 2). Plaintiff’s claims against
Defendants RCF II, LLC; RCF, LLC; and Craig Hecker in Count I of the Second Amended
Complaint are DISMISSED. In addition, as recommended by the Magistrate Judge, Defendants’
request to strike Plaintiff’s prayer for pro se attorneys’ fees (found in Docket No. 67) is GRANTED.
IT IS SO ORDERED.
ENTER this 31st day of August 2017.
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ALETA A. TRAUGER
UNITED STATES DISTRICT JUDGE

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