Stevens-Bratton v. Trugreen, Inc.
Filing
192
ORDER granting in part and denying in part 109 Motion for Summary Judgment; finding as moot 156 Motion for Summary Judgment. Signed by Judge Samuel H. Mays, Jr on 2/4/2020. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
KASIE STEVENS-BRATTON,
individually and on behalf of
all others similarly situated,
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
TRUGREEN, INC.,
Defendant.
No. 2:15-2472
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, 47 U.S.C.
§ 227 (the “TCPA”).
motions.
(ECF No. 1.)
This order addresses two
The first motion is TruGreen’s October 17, 2017 Motion
for Summary Judgment.
on November 14, 2017.
28, 2017.
(ECF No. 109.)
(ECF No. 117.)
Stevens-Bratton responded
TruGreen replied on November
(ECF No. 122.)
The second motion is TruGreen’s September 12, 2018 Motion for
Partial
Summary
Judgment.
responded on November 9, 2018.
on November 30, 2018.
(ECF
No.
156.)
Stevens-Bratton
(ECF No. 163.)
TruGreen replied
(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.
No. 164 at ¶ 2.)
Stevens-Bratton alleges those calls were made by
an automatic telephone dialing system (“ATDS”).
¶¶ 29-30.)
(ECF
(See ECF No. 1
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.
No. 1.)
In her complaint she states six claims.
2
(ECF
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
1
The latter claim allows for treble damages for a knowing violation of
§ 227(b)(1)(A). See 47 U.S.C. § 227(b)(3).
3
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.
II.
(ECF No. 156.)
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.”
complaint alleges violations of the TCPA.
has federal question jurisdiction.
LLC,
565
U.S.
368,
376
(2012);
Stevens-Bratton’s
(ECF No. 1.)
The Court
See Mims v. Arrow Fin. Servs.,
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.”
4
Fed. R. Civ. P.
56(a). The moving party must show that the nonmoving party, having
had
sufficient
opportunity
for
discovery,
support an essential element of its case.
lacks
evidence
to
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.
56(c).
See Fed. R. Civ. P.
“A ‘genuine’ dispute exists when the plaintiff presents
‘significant probative evidence’ ‘on which a reasonable jury could
return a verdict for her.’”
760
(6th
Cir.
2015) (en
EEOC v. Ford Motor Co., 782 F.3d 753,
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 (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
Cir.
Miller
Stables,
573
F.3d
289,
2009) (quotation marks and citations omitted).
5
294
(6th
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).
1.
(ECF No. 109-1 at 13-15.)
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.”
§ 227(b)(1)(A).
47 U.S.C.
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.”
U.S.C. § 227(a)(1).
47
The Federal Communications Commission (“FCC”)
6
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.
13.)
(ECF No. 109-1 at 6-
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 StevensBratton’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
2
v.
Liberty
Lobby,
Inc.,
477
U.S.
242,
257
(1986)).
The FCC explained that a “predictive dialer” is:
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.
See Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. at
14091.
7
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).
movant
“[A] grant of summary judgment is improper if the nonis
given
an
insufficient
opportunity
for
discovery.”
White’s Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 23132 (6th Cir. 1994); see also Celotex Corp. v. Catrett, 477 U.S.
317,
322
(1986)
(“Rule
56(c)
mandates
the
entry
of
summary
judgment, after adequate time for discovery . . . .”) (emphasis
added).
The Sixth Circuit has reversed when a plaintiff showed a
need for additional discovery and had conducted more discovery
than Stevens-Bratton had here.
See, e.g., Bobo v. United Parcel
Serv. Inc., 665 F.3d 741, 754 (6th Cir. 2012).
the burden of showing a need for discovery.
The nonmovant bears
Vance ex rel. Hammons
v. United States, 90 F.3d 1145, 1149 (6th Cir. 1996).
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.)
disclosures were due about two weeks later.
Initial
(See id. ¶ 3.)
Stevens-Bratton had not yet had a substantive chance to procure
8
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 thirdparty 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 without 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
9
(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.
1 ¶¶ 53-68.)
(ECF No.
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.
13-15.)
(ECF No. 109-1 at
TruGreen’s second argument is compelling.
Forty-Seven U.S.C. § 227(c)(5) creates a private right of
action for “[a] person who has received more than one telephone
call within any 12-month period by or on behalf of the same entity
in
violation
of
the
regulations
prescribed
subsection . . . .” 47 U.S.C. § 227(c)(5).
under
this
One of the relevant
regulations prohibits entities from placing unsolicited telephone
calls to “a residential telephone subscriber who has registered
his
or
her
telephone
registry . . . .”
regulation
on
the
national
47 C.F.R. § 64.1200(c)(2).
prohibits
telemarketing
number
purposes
entities
to
a
from
residential
making
do-not-call
Another relevant
“call[s]
telephone
for
subscriber
unless such . . . entity has instituted procedures for maintaining
10
a list of persons who request not to receive telemarketing calls
made by or on behalf of that . . . entity.” 47 C.F.R. § 64.1200(d).
Violation of either (or both) of those regulations supports a
private cause of action.
See Charvat v. NMP, LLC, 656 F.3d 440,
443-44 (6th Cir. 2011).
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 47 C.F.R. § 64.1200(c)
(“No person or entity shall initiate any telephone solicitation
to . . . [a] residential telephone subscriber who has registered
his or her telephone number on the national do-not-call registry
of
persons . . . .”)
(emphasis
added);
id.
§ 64.1200(d)
(“No
person or entity shall initiate any call for telemarketing purposes
to a residential telephone subscriber unless such person or entity
has instituted procedures for maintaining a list of persons who
request not to receive telemarketing calls made by or on behalf of
that person or entity.”) (emphasis added).
define
“residential
interpreted
the
telephone
“residential
The TCPA does not
subscriber.”
telephone
Courts
subscriber”
have
element
to
require proof that the number called was used for “residential
purposes.”
See, e.g., Lee v. Loandepot.com, LLC, No. 14-cv-01084-
EFM, 2016 WL 4382786, at *6 (D. Kan. Aug. 17, 2016) (citing United
States v. Dish Network, LLC, 75 F. Supp. 3d 942, 1024 (C.D. Ill.
11
2014), 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
subscriber”).
TCPA
in
the
definition
of
“residential
telephone
One of these cases has relied on the logic that the
“generally
distinguishes
between
‘residential’
lines
and
other protected lines, although it provides some protections to
the owners of both.”
Servs.,
Inc.,
251
See Cunningham v. Rapid Response Monitoring
F.
Supp.
3d
1187,
1201
(M.D.
Tenn.
2017)
(comparing 47 U.S.C. § 427(b)(1)(B) (setting conditions for use of
robo-calls
to
residential
telephones),
with
47
U.S.C.
§ 427(b)(1)(A)(i)-(iii) (setting conditions for use of robo-calls
to cellular and other covered telephones)); see also Bates v. I.C.
Sys., Inc., No. 09-cv-103A, 2009 WL 3459740, at *2 (W.D.N.Y. Oct.
12
19,
2009)
(“[T]he
TCPA
differentiates
cellular and residential lines.”).
between
calls
made
to
The Court does not agree with
those cases.
Forty-seven C.F.R. § 64.1200(e) provides that “[t]he rules
set forth in paragraph (c) and (d) of this section are applicable
to
any
person
or
entity
making
telephone
solicitations
or
telemarketing calls to wireless telephone numbers to the extent
described in the Commission’s Report and Order, CG Docket No. 02–
278, FCC 03–153, ‘Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991.’”
(emphasis added).
In the
referenced report and order, the FCC made clear that “residential
subscriber” can include “wireless subscribers” because “it is
well-established
wireless
phones
that
in
wireless
the
same
residential wireline phones.”
subscribers
manner
in
often
which
use
they
their
use
their
See Implementing the Tel. Consumer
Prot. Act of 1991, 18 F.C.C. Rcd. at 14038-39; see also Hodgin v.
Parker Waichman LLP, No. 3:14-cv-733-DJH, 2015 WL 13022289, at *3
(W.D. Ky. Sept. 30, 2015).
rejected
interpreting
exclude
cellular
The FCC report and order expressly
“residential
telephone
subscribers”
numbers
narrowly
categorically.
to
See
Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd.
at
14038
(rejecting
subscribers”
communications
to
the
mean
in
the
proposed
“telephone
definition
service
subscriber’s
13
of
used
residence”
“residential
primarily
as
“far
for
too
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.”
California, 573 U.S. 373, 385 (2014).
used
for
residential
purposes.
Riley v.
Cellular telephones can be
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).
the
“residential
§ 64.1200(c) & (d).
A cellular telephone can satisfy
telephone
subscriber”
element
of
See 47 C.F.R. § 64.1200(e); Hodgin, 2015 WL
13022289, at *3; Dish Network LLC, 75 F. Supp. 3d at 926; Phillips
v. Mozes, Inc., 2:12-cv-04033-JEO, 2014 WL 12589671, at *6 (N.D.
Ala. Sept. 3, 2014), report and recommendation adopted in relevant
part by 2015 WL 12806594 (Jan. 26, 2015); cf. Susinno v. Work Out
World Inc., 862 F.3d 346, 349 (3d Cir. 2017) (“Although it is true
that the TCPA placed particular emphasis on intrusions upon the
privacy of the home in 1991, this expression of particular concern
for
residential
calls
does
not
3
limit—either
expressly
or
by
Just because Stevens-Bratton provided both a cellular telephone number
and a home telephone number in her service agreement with TruGreen, (see
ECF No. 109-1 at 14-15), does not necessarily mean that her cellular
telephone could not have been used for residential purposes.
See
Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. at 14038
(“[T]here is nothing in section 227 to suggest that only a customer’s
‘primary residential telephone service’ was all that Congress sought to
protect through the TCPA.”).
14
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), report 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 and mobile line since May 2005.
a dedicated landline since May 2005.”
I have not [sic]
(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)
15
(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 a 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
affidavits and conclusory allegations).
self-serving
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
16
“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 DoNot-Call Registry on November 9, 2013.” (ECF No. 1 ¶ 24.) StevensBratton argues that registering is sufficient to meet her burden
because the FCC presumes that “wireless subscribers who ask to be
put
on
the
subscribers.’”
national
do-not-call
list
[are]
‘residential
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-notcall registry is open only to residential telephone subscribers.
Put another way, Phillips could not have registered his cell phone
17
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:
Moreover, 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
consumers. 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
18
subscribers
former.
and
See id.
to
ease
administrative
requirements
for
the
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
‘residential subscriber’” is “fact-intensive.”
subscriber
is
a
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
4
In addition to the “residential telephone subscriber” element, 47
C.F.R. § 64.1200(c) requires a plaintiff to prove that she registered
her telephone number on the National Do-Not-Call Registry. See 47 C.F.R.
§ 64.1200(c) (“No person or entity shall initiate any telephone
solicitation to . . . [a] residential telephone subscriber who has
registered his or her telephone number on the national do-not-call
registry of persons . . . .”) (emphasis added).
If establishing the
National Do-Not-Call Registry element necessarily established the
residential-telephone-subscriber element, the regulatory language
requiring the latter would be superfluous.
Allowing proof of
registration on the National Do-Not-Call Registry to satisfy the
“residential
telephone
subscriber”
element
would
violate
the
interpretive canon against surplusage.
See A. Scalia & B. Garner,
Reading Law: The Interpretation of Legal Texts 140, 174 (2012) (“[E]very
word and every provision is to be given effect [and n]one should
needlessly be given an interpretation that causes it to duplicate another
provision or to have no consequence.”).
19
fact-intensive determination.
enough.
(See ECF No. 120 ¶ 2.)
That is not
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.”
14.)
The
(ECF No. 117 at
Stevens-Bratton cites no authority to support that argument.
Court
has
not
found
any
cases
interpreting
the
“residential telephone subscriber” element as she does.
TCPA’s
To do so
would turn the relevant inquiry on its head by shifting the
analysis from the consumer’s use of the telephone to the caller’s
purpose in making the call.
That is not consistent with the
privacy interests undergirding the TCPA: protection of consumers
from unsolicited and undesired personal intrusions no matter the
purpose.
Stevens-Bratton’s third argument fails.
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.
TruGreen is warranted on this issue.
Summary judgment in favor of
See Lee, 2016 WL 4382786, at
*7 (granting summary judgment on this issue when “Plaintiff ha[d]
20
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, fourth, 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.
5
In her briefing, as an alternative to summary judgment in TruGreen’s
favor, Stevens-Bratton asks the Court for leave to amend her complaint
to add allegations related to residential purposes. (ECF No. 117 at 1415.) Stevens-Bratton has not filed a motion to amend. “A ‘request for
leave to amend almost as an aside, to the district court in a memorandum
in opposition to [] defendant’s [motion] is . . . not a motion to
amend.’” Kuyat v. BioMimetic Therapeutics, Inc., 747 F.3d 435, 444 (6th
Cir. 2014) (citing La. Sch. Emps.’ Ret. Sys. v. Ernst & Young, LLP, 622
F.3d 471, 486 (6th Cir. 2010)).
To the extent the reference in her
brief might be construed as a motion to amend, the Court denies StevensBratton’s request. Allowing her to amend at the summary judgment stage
would be futile because she has not submitted sufficient evidence that
she uses her cellular telephone for residential purposes. See Yuhasz
v. Brush Wellman, Inc., 341 F.3d 559, 569 (6th Cir. 2003). Amending her
complaint would not change that.
21
So ordered this 4th day of February, 2020.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
22
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