Stevens-Bratton v. Trugreen, Inc.
Filing
153
ORDER DENYING Plaintiff's Objections to the Order of the Magistrate Judge 146 . Signed by Judge Samuel H. Mays, Jr on 07-30-2018. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
KASIE STEVENS-BRATTON,
individually and on behalf of
others similarly situated,
Plaintiff,
v.
TRUGREEN, INC.,
Defendant.
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No. 2:15-cv-02472-SHM-tmp
ORDER
On
June
25,
2018,
Plaintiff
Kasie
Stevens-Bratton
filed
Objections to the Order of the Magistrate Judge, entered on June
11, 2018 (“Plaintiff’s Objections”).
objects
motion
to
to
the
Magistrate
compel
Judge’s
Defendant
(ECF No. 146.)
Order
TruGreen
denying
[Inc.]
to
Plaintiff
“Plaintiff’s
produce
the
dialing records it has searched and relied upon in defending
[against]
Plaintiff’s
individual
claims.”
Defendant responded on July 16, 2018.
(Id.
at
3121.)1
(ECF No. 151.)
For the reasons below, Plaintiff’s Objections are DENIED.
1
Unless otherwise noted, all pin cites for record citations are to the
“PageID” page number.
I.
Background
Plaintiff
alleges
that
Defendant
unlawfully
called
her
using an automatic telephone dialing system to market lawn care
services, in violation of the Telephone Consumer Protection Act,
47 U.S.C. § 227 (“TCPA”).
On February 22, 2018, Plaintiff filed a Motion to Compel
Discovery.
(ECF No. 128; see also ECF No. 129.)
Plaintiff
argues that Defendant’s “calling records are instrumental to the
present litigation” and moves the Court to compel Defendant to
produce
those
records.
(ECF
responded on March 8, 2018.
on March 15, 2018.
No.
129
2828.)
(ECF No. 132.)
(ECF No. 136-1.)
reply on March 20, 2018.
at
Defendant
Plaintiff replied
Defendant filed a sur-
(ECF No. 141-1.)
On March 26, 2018, United States Magistrate Judge Tu M.
Pham held a hearing on Plaintiff’s Motion to Compel Discovery.
(ECF No. 144.)
After hearing from both parties, the Magistrate
Judge denied the Motion.
(Id.; ECF No. 150 at 3193.)
On June
11, 2018, the Magistrate Judge entered an Order (ECF No. 145),
reasoning “that the discovery sought by Plaintiff in her motion
to compel is not proportional to the needs of the case.”
No. 145 at 3119.)
(ECF
Because “Plaintiff has not made any showing .
. . to suggest that an [autodialer] might have been used to
contact
her,”
and
because
“[Defendant]
2
has
presented
considerable
evidence
demonstrating
that
Plaintiff’s
telemarketing calls . . . were made by someone who manually
dialed her number to initiate the call,” the Magistrate Judge
concluded that Plaintiff’s Motion was not well taken.
(Id. at
3119-20.)
On June 25, 2018, Plaintiff filed her Objections to the
Order of the Magistrate Judge.
II.
(ECF No. 146.)
Standard of Review
Pursuant to Federal Rule of Civil Procedure 72(a), when a
magistrate judge issues a non-dispositive order, “[a] party may
serve and file objections to the order within 14 days after
being
served
with
a
copy.”
Fed.
R.
Civ.
P.
72(a).
“The
district judge in the case must consider timely objections and
modify
or
set
aside
any
part
of
the
erroneous or is contrary to law.”
636(b)(1)(A);
Local
Rule
order
that
is
clearly
Id.; see also 28 U.S.C. §
72.1(g).
Rule
72(a)
provides
“considerable deference to the determinations of magistrates.”
7 Moore's Federal Practice ¶ 72.03.
A finding is clearly erroneous when “the reviewing court,
upon review of the entire record, is left with a definite and
firm conviction that a mistake has been committed.”
United
States v. Hurst, 228 F.3d 751, 756 (6th Cir. 2000).
The finding
need
would
not
be
the
conclusion
the
3
reviewing
court
have
reached or the best conclusion; “[r]ather, the test is whether
there is evidence in the record to support the lower court's
finding, and whether its construction of that evidence is a
reasonable one.”
Heights Cmty. Cong. v. Hilltop Realty, Inc.,
774 F.2d 135, 140 (6th Cir. 1985) (citing Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 574 (1985)).
III. Analysis
Plaintiff argues that the Magistrate Judge erred in denying
her
Motion
“necessary
to
to
Compel
prove
because
claims
Defendant’s
under
the
call
records
are
and
because
the
TCPA”
burden of production would not substantially outweigh the likely
benefit to Plaintiff.
(ECF No. 146 at 3124.)
that
its
production
of
call
records
Defendant argues
is
immaterial
for
Plaintiff’s claim and would create a significant burden that
outweighs the likely benefit to Plaintiff.
(ECF No. 151 at 3201
at 3208.)
Plaintiff’s
Magistrate
Objections
Judge’s
contrary to law.
do
not
were
conclusions
demonstrate
clearly
Fed. R. Civ. P. 72(a).
that
erroneous
the
or
Plaintiff’s Objections
simply reiterate the arguments made in her Motion to Compel.
Plaintiff again argues that other courts have allowed discovery
of
call
regularly
records.
reject
(Compare
ECF
defendant’s
No.
129
attempts
4
at
in
2827
(“[C]ourts
TCPA
cases
to
unilaterally limit the scope of discovery based on defendant’s
own interpretation of its outbound voice communication system)
with ECF No. 146 at 3127 (“Plaintiff has requested information
that
is
.
country.)
.
.
routinely
produced
in
TCPA
cases
across
the
Plaintiff argues that her own cell phone records do
not provide the information she has sought.
(Compare ECF No.
136-1 at 3044 (“[Defendant’s] records may show calls that were
placed
to
the
plaintiff
that
are
not
shown
in
plaintiff’s
billing records.”) with ECF No. 146 at 3124 (“Nor do Plaintiff’s
private cell phone records necessarily contain evidence of every
call [Defendant] made . . . . Plaintiff’s personal cell phone
records do not show missed or incomplete calls”).
Plaintiff
contends that the burden of discovery on Defendant is minimal
because Defendant has already reviewed the requested material.
(Compare
ECF
No.
136-1
at
3047
(“[Defendant]
admits
it
has
already searched the records. Plaintiff simply seeks production
of the same records on which [Defendant] relies.”) with ECF No.
146 at 3128 (“[Defendant] asserts that it has already reviewed
its complete VCC records for calls placed to Plaintiff, and so
cannot
meaningfully
argue
that
producing
those
same
records
would be overly burdensome.”).
The
Magistrate
Judge
properly
evaluated
the
parties’
arguments during the March 26, 2018 hearing, and in his June 11,
5
2018 Order.
(ECF No. 144; ECF No. 145.)
The Magistrate Judge
rejected Plaintiff’s proportionality argument, concluding that
“the discovery sought by Plaintiff in her motion to compel is
not proportional to the needs of the case.”
3119.)
(ECF No. 145 at
Plaintiff is not entitled to a second review of her
arguments
simply
because
Judge’s conclusion.
she
disagrees
with
the
Magistrate
See Draper v. University of Tennessee, No.
08-1125, 2010 WL 11493685, at *2 (W.D. Tenn. June 7, 2010).
Plaintiff cites cases from the District of Massachusetts,
Northern
District
of
Illinois,
and
Western
District
of
Washington to support her argument that the Magistrate Judge
erred in his proportionality analysis.
3129.)
To the extent those cases support Plaintiff’s argument,
they are not binding on this Court.
Order
(See ECF No. 146 at
was
nonbinding
not
contrary
precedent.
to
law
Accord
if
Allison
The Magistrate Judge’s
it
v.
declined
to
follow
Staples
the
Office
Superstore East, Inc., No. 1:13–CV–00190–GNS, 2015 WL 3849989,
at *3 (W.D. Ky. June 22, 2015) (“[Defendant] has failed to cite
any case law within the district or this circuit . . . . Thus,
to say that the [Magistrate Judge’s] order is contrary to law is
inaccurate . . . .”).
The Magistrate Judge’s Order was not clearly erroneous or
contrary to law.
Plaintiff’s Objections are DENIED.
6
IV.
Conclusion
For
DENIED.
the
foregoing
reasons,
Plaintiff’s
Objections
are
The Magistrate Judge’s Order is AFFIRMED.
It is SO ORDERED this 30th day of July, 2018.
/s/ Samuel H. Mays, Jr.
___
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
7
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