Stevens-Bratton v. Trugreen, Inc.

Filing 205

ORDER granting 199 motion to conduct expert discovery. Signed by Magistrate Judge Tu M. Pham on 4/9/2020. (nph) (Main Document 205 replaced on 4/9/2020) (nph).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
KASIE STEVENS-BRATTON,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
TRUGREEN, INC.,
Defendant.

15-2472-SHM-tmp

ORDER GRANTING MOTION TO CONDUCT EXPERT DISCOVERY
Before the court by order of reference is Kasie StevensBratton’s motion for permission to conduct expert discovery. (ECF
Nos. 199 & 201.) For the reasons below, the motion is GRANTED.
I.

BACKGROUND

This is a putative class action under the Telephone Consumer
Protection Act, 47 U.S.C. § 227 (the “TCPA”). Stevens-Bratton
alleges that Trugreen, Inc. (“Trugreen”) called her cell phone
several

times

using

an

automatic

telephone

dialing

system

(“ATDS”).1 (ECF No. 1 at 5 ¶¶ 29-30.) Trugreen asserts that its
telephone system does not qualify as an ATDS. (ECF No. 22.)
Before discovery, Trugreen moved for summary judgment on the
grounds its telephone system did not qualify as an ATDS. (ECF No.

1Stevens-Bratton

also alleged other violations of the TCPA but
those claims did not survive summary judgment. (ECF No. 192.)

109.) Stevens-Bratton opposed summary judgment because she argued
she needed an opportunity to conduct discovery about the features
of Trugreen’s telephone systems. (ECF No. 117.) Stevens-Bratton
specifically argued that she needed “an opportunity for her expert
to review information obtained in discovery” about the features of
Trugreen’s telephone systems. (Id. at 6.)
While the parties awaited a ruling on the motion for summary
judgment, the court entered a scheduling order. (ECF No. 116.) The
scheduling order bifurcated merits and expert discovery. Merits
discovery was to be completed by July 31, 2018. (Id.) For expert
discovery, the order stated that “[t]he Parties request to approach
the Court and submit an additional proposed scheduling order in
order

to

schedule

expert

discovery

and

class

certification

briefing at the conclusion of the merits (non-expert) discovery
phase.” (Id.) At the conclusion of the merits discovery period,
there had not been a ruling on Trugreen’s motion for summary
judgment and neither party sought permission to conduct expert
discovery.
On February 4, 2020, the court denied summary judgment on
Stevens-Bratton’s ATDS claims. (ECF No. 192.) The court ruled
summary judgment was premature because at the time the motion was
briefed “Stevens-Bratton had not yet had a substantive chance to
procure any discovery responses, deposition testimony, or expert
testimony.” (Id. at 8-9.) Stevens-Bratton then filed this motion,

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which was referred to the undersigned. (ECF Nos. 199 & 201.)
Trugreen opposes the motion. (ECF No. 200.)
II.

ANALYSIS

The TCPA forbids any person “to make any call . . . using any
automatic telephone dialing system . . . to any telephone number
assigned to a . . . cellular telephone service.” 47 U.S.C. §
227(b)(1)(A). “The term ‘automatic telephone dialing system’ means
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.A. § 227(a)(1).
Although the TCPA is thirty years old, the definition of an ATDS
is an unsettled question. See Gadelhak v. AT&T Servs., Inc., 950
F.3d 458, 463 (7th Cir. 2020).
Trugreen argues the motion should be denied because expert
testimony

would

be

inadmissible,

because

expert

testimony

is

unnecessary to resolve another round of summary judgment, and
because Stevens-Bratton waived her opportunity to conduct expert
discovery by waiting until well after the end of merits discovery.
None of these arguments are persuasive. Turning to Trugreen’s first
argument, courts often admit expert testimony about the technical
features of purported ATDSs. See Eldridge v. Pet Supermarket, Inc.,
No. 18-22531-CIV, 2020 WL 1076103, at *7 (S.D. Fla. Mar. 6, 2020);
Morgan

v.

On

Deck

Capital,

Inc.,

No.

3:17-CV-00045,

2019

WL

4093754, at *3 (W.D. Va. Aug. 29, 2019). The court cannot conclude

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any expert testimony Stevens-Bratton may develop would be
clearly

inadmissible

as

to

bar

discovery.

Trugreen’s

so

second

argument is also unavailing. Expert discovery may well be helpful
in identifying the technical features of Trugreen’s call system
and allowing the parties to develop their arguments about whether
Trugreen’s system qualifies as an ATDS. Finally, Trugreen’s waiver
argument overlooks that Stevens-Bratton moved for expert discovery
promptly after the court’s ruling on the first summary judgment
motion. Though it would perhaps have been better practice to move
to conduct expert discovery earlier, given this context, StevensBratton’s delay was not so egregious as to constitute a waiver.
III. CONCLUSION
For the reasons above, the motion to conduct expert discovery
is GRANTED. The parties shall prepare a joint proposed scheduling
order regarding expert discovery within fourteen days of entry of
this order. Should the parties require additional time to submit
a

proposed

scheduling

order

due

to

the

ongoing

coronavirus

pandemic, the court will liberally grant extensions.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
April 9, 2020
Date

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