Stevens-Bratton v. Trugreen, Inc.

Filing 226

ORDER re 206 Sealed Document. Signed by Judge Samuel H. Mays, Jr on 6/10/2020. (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.

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No. 2:15-cv-2472

ORDER

Before the Court is Defendant TruGreen, Inc.’s (“TruGreen”)
Objections to the Magistrate Judge’s Order Granting Motion to
Conduct Expert Discovery, filed on April 23, 2020.

(ECF No. 206.)

Plaintiff Kasie Stevens-Bratton responded on May 7, 2020.
No. 209.)
For
OVERRULED.
I.

TruGreen replied on May 18, 2020.
the

following

reasons,

(ECF

(ECF No. 220.)

TruGreen’s

Objections

are

The Magistrate Judge’s order is AFFIRMED.

Background
Stevens-Bratton

filed

this

putative

class

action

against

TruGreen, alleging violations of the Telephone Consumer Protection
Act, 47 U.S.C. § 227 (the “TCPA”).

(ECF No. 1.)

Stevens-Bratton

alleges, inter alia, that TruGreen called her cellular telephone
several times without her permission using an automatic telephone

dialing system (“ATDS”), 1 a violation of 47 U.S.C. § 227(b)(1)(A).
In October 2017, TruGreen filed a motion for summary judgment,
arguing, in part, that its telephone dialing system is not an ATDS.
(ECF No. 109-1 at 6-13.) Stevens-Bratton opposed summary judgment,
arguing, inter alia, that she had not had a sufficient opportunity
to conduct discovery about the features of TruGreen’s telephone
dialing system and that she needed “an opportunity for her expert
to review information obtained in discovery . . . .”

(ECF No. 117

at 6.)
About three weeks after TruGreen filed its motion for summary
judgment, the Court entered a scheduling order setting “merits
(non-expert) discovery” to be completed by July 31, 2018.
No.

116

at

4.)

The

Court

expressly

opportunity to conduct expert discovery.

reserved

the

(ECF

parties’

(Id.) (“The 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 (nonexpert) discovery phase.”).

July 31, 2018 came and went.

The

parties did not request further discovery because they were waiting

1

“The TCPA defines an ATDS 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.’” Gary v.
TrueBlue, Inc., 786 F. App’x 555, 556 (6th Cir. 2019) (citing 47 U.S.C.
§ 227(a)(1)).

2

for

the

Court’s

judgment. 2

decision

on

TruGreen’s

motion

for

summary

(See ECF No. 178; No. 206 at 9; No. 220 at 3-4 ¶ 7.)

On February 4, 2020, the Court granted in part, and denied in
part, TruGreen’s motion for summary judgment.
Addressing

TruGreen’s

ATDS

arguments,

the

(ECF No. 192.)

Court

found

that

“Stevens-Bratton had not yet had a substantive chance to procure
any

discovery

testimony.”

responses,

deposition

(ECF No. 192 at 8-9.)

testimony,

or

expert

The Court said that “[t]he

parties have had the opportunity for further discovery.

They can

now address summary judgment on Stevens-Bratton’s [ATDS claims]
with the benefit of an adequate record.” 3

(Id. at 9.)

On February 14, 2020, the Court held a status conference at
which

Stevens-Bratton

discovery.

asserted

(ECF No. 198.)

the

need

to

conduct

expert

Stevens-Bratton subsequently filed a

motion to conduct expert discovery, (ECF No. 199), which the Court
referred to the Magistrate Judge, (ECF No. 201).

On April 9, 2020,

the Magistrate Judge granted Stevens-Bratton’s motion to conduct
expert discovery. (ECF No. 205.) The Magistrate Judge found that:
[C]ourts often admit expert testimony about the technical
features of purported ATDSs. The court cannot conclude any
expert testimony Stevens-Bratton may develop would be so
2

In September 2018, TruGreen filed another motion for summary judgment,
addressing Stevens-Bratton’s other claims. (ECF No. 156.)
3

Although the Court’s commentary might be interpreted to hold that the
parties need not conduct further discovery, the Court did not
conclusively rule on the issue of expert discovery. Stevens-Bratton’s
arguments at the February 14, 2020 status conference were well-taken.
The Court allowed subsequent briefing on the issue.

3

clearly inadmissible as to bar discovery. . . . 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. . . . Though it would perhaps have been
better practice to move to conduct expert discovery earlier,
given this context, Stevens-Bratton’s delay was not so
egregious as to constitute a waiver.
(Id. at 3-4) (citations omitted.)

On April 23, 2020, TruGreen

timely objected to the Magistrate Judge’s order.
II.

(ECF No. 206.)

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
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 order that is clearly erroneous or is contrary to
law.”

Id.; see also 28 U.S.C. § 636(b)(1)(A); LR 72.1(g)(1).

standard of review is “limited.”
4

This

Massey v. City of Ferndale, 7

F.3d 506, 509 (6th Cir. 1993).

The “clearly erroneous” standard

applies to factual findings made by the magistrate judge.

Gandee

v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992), aff’d, 19 F.3d
1432 (6th Cir. 1994) (citation omitted).

The “contrary to law”

standard applies to his legal conclusions.

Turner v. City of

Memphis, No. 17-cv-2447, 2019 WL 430934, at *2 (W.D. Tenn. Feb. 4,
2019).

Rule

72(a)

requires

determinations of magistrates.”

“considerable

deference

to

the

In re Search Warrants Issued Aug.

29, 1994, 889 F. Supp. 296, 298 (S.D. Ohio 1995) (citing 7 Moore’s
Federal Practice ¶ 72.03).

Deference “is especially appropriate

where the magistrate judge has managed a . . . case from the outset
and developed a thorough knowledge of the proceedings.”

Hyland v.

Homeservices of Am., Inc., No. 3:05-cv-612, 2012 WL 1680109, at *3
(W.D. Ky. May 14, 2012) (internal citation, quotation marks, and
alterations omitted).
A magistrate judge’s factual findings are clearly erroneous
when, on review of the entire record, “although there is evidence
to support [the findings], the reviewing court . . . is left with
the

definite

committed.”

and

firm

conviction

that

a

mistake

has

been

United States v. U.S. Gypsum Co., 333 U.S. 364, 395

(1948); see also In re Burke, 863 F.3d 521, 528 (6th Cir. 2017)
(citation omitted); United States v. Hurst, 228 F.3d 751, 756 (6th
Cir. 2000).

“[T]he test is whether there is evidence in the record

to support the lower court’s finding, and whether its construction
5

of that evidence is a reasonable one.”

Heights Cmty. Cong. v.

Hilltop Realty, Inc., 774 F.2d 135, 140-41 (6th Cir. 1985) (citing
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)).
“When examining legal conclusions under the ‘contrary to law’
standard, the Court may overturn ‘any conclusions of law which
contradict or ignore applicable [or binding] precepts of law, as
found in the Constitution, statutes, or case precedent.’”

Doe v.

Aramark Educ. Res., Inc., 206 F.R.D. 459, 461 (M.D. Tenn. 2002)
(quoting Gandee, 785 F. Supp. at 686); see also 32 Am. Jur. 2d
Fed. Cts. § 140 (2018) (“A magistrate judge’s order is contrary to
law when it fails to apply or misapplies relevant statutes, case
law, or rules of procedure.”).

“Although legal authority may

support an objection, the critical inquiry is whether there is
legal authority that supports the magistrate’s conclusion[;]” if
so, the magistrate judge did not act contrary to law.

Carmona v.

Wright, 233 F.R.D. 270, 276 (N.D.N.Y. 2006) (citing Tompkins v.
R.J. Reynolds Tobacco Co., 92 F. Supp. 2d 70, 79 (N.D.N.Y. 2000)).
“That

reasonable

minds

may

differ

on

the

wisdom

of

a

legal

conclusion does not mean it is clearly erroneous or contrary to
law.”

Id. (citing Moss v. Enlarged City Sch. Dist. of City of

Amsterdam, 166 F. Supp. 2d 668, 670 (N.D.N.Y. 2001)).
IV.

Analysis

TruGreen argues that the Magistrate Judge acted contrary to
law when he decided that: (1) expert discovery is necessary or
6

helpful

to

resolve

another

round

of

summary

judgment;

and

(2) Stevens-Bratton did not waive her opportunity to take expert
discovery.

(ECF No. 206 at 13-20; No. 220 at 1 ¶ 1.)

TruGreen

fails

to

establish

conclusions were contrary to law.

that

the

Magistrate

Judge’s

Fed. R. Civ. P. 72(a). In its

objection to the Magistrate Judge’s order, TruGreen makes many of
the arguments it made to the Magistrate Judge.

(Compare ECF No.

206 at 13-14, 17-18, with No. 200 at 13, 17-18) (reciting arguments
verbatim.)
because

it

conclusion.

TruGreen is not entitled to a different result simply
disagrees

with

the

Magistrate

Judge’s

ultimate

See Draper v. University of Tennessee, No. 08-1125,

2010 WL 11493685, at *1-2 (W.D. Tenn. June 7, 2010).
A. Expert Discovery
TruGreen argues that the Magistrate Judge acted contrary to
law when he decided that expert discovery would be necessary or
helpful in deciding summary judgment.

(ECF No. 206 at 13-17.)

In reaching his decision that “[e]xpert testimony may well be
helpful in identifying the technical features of Tru[G]reen’s call
system,” the Magistrate Judge cited Eldridge v. Pet Supermarket,
Inc., No. 18-cv-22531, 2020 WL 1076103, at *7 (S.D. Fla. Mar. 6,
2020), and Morgan v. On Deck Capital, Inc., No. 3:17-cv-00045,
2019

WL

4093754,

at

*3

(W.D.

Va.

Aug.

29,

2019),

for

the

proposition that “courts often admit expert testimony about the
technical features of purported ATDSs.”
7

(ECF No. 205 at 3.)

TruGreen argues that “[t]his Court does not need an expert to
conclude [that] TruGreen’s [telephony system] do[es] not violate
the TCPA[,]” because “[m]any courts in many jurisdictions have
granted summary judgment to defendants without the aid of expert
testimony where the defendant . . . offers proof that its telephony
system

cannot

function

as

an

ATDS.”

(ECF

No.

for

reasons.

206

at

14)

First,

the

(collecting cases.)
TruGreen’s

argument

fails

two

proposition that courts sometimes grant summary judgment on the
ATDS issue without expert testimony is not equivalent to the
proposition that expert testimony is barred in determining whether
a specific telephony dialing system can function as an ATDS.
Second, although there may be legal authority to support TruGreen’s
argument, see, e.g., Wattie-Bey v. Modern Recovery Sols., No. 1:14CV-01769, 2016 WL 1253489, at *4 (M.D. Pa. Mar. 10, 2016), report
and recommendation adopted, No. 1:14-CV-1769, 2016 WL 1242194
(M.D. Pa. Mar. 30, 2016) (not addressing any issue of expert
testimony

but

granting

summary

judgment

when

there

was

insufficient evidence in the record to support plaintiff’s claim
that he was called using an ATDS), there is legal authority to
support the Magistrate Judge’s conclusion, see, e.g., Eldridge,
2020 WL 1076103, at *7; Morgan, WL 4093754, at *3; Perez v. Rash
Curtis & Assocs., No. 16-cv-03396, 2019 WL 1491694, at *4 (N.D.
Cal. Apr. 4, 2019) (“[T]he function and capacities of [telephony]
8

devices bear on the central factual issues before the trier of
fact, [the expert’s] opinions on these topics are relevant.”).
TruGreen

cites

no

binding,

contradictory

authority.

The

Magistrate Judge did not act contrary to law.

See White v. City

of

(N.D.

Cleveland,

417

F.

Supp.

3d

896,

909–10

Ohio

2019)

(“[T]here is clearly legal authority that supports the Magistrate
Judge’s decision, and the fact that [a case] provides some support
for the [objector’s] argument is not enough to conclude [that] the
Magistrate Judge’s decision was . . . contrary to law.”).

The

Magistrate Judge’s order is not contrary to law for failing to
follow nonbinding precedent.
B. Waiver
TruGreen argues that the Magistrate Judge acted contrary to
law when he concluded that Stevens-Bratton had not waived her
request for expert discovery.

(ECF No. 206 at 17-20.)

party has waived an opportunity is a legal question.

Whether a

See E.E.O.C.

v. Burlington N. & Santa Fe Ry. Co., 621 F. Supp. 2d 603, 606 (W.D.
Tenn. 2009).
Waiver is the intentional relinquishment or abandonment of a
specific opportunity or course of action.

Cf. PolyOne Corp. v.

Westlake Vinyls, Inc., 937 F.3d 692, 697 (6th Cir. 2019) (quoting
United States v. Olano, 507 U.S. 725, 733 (1993)). Waiver requires
either the actual intent to relinquish an opportunity or course of
action or conduct that would warrant such an inference.
9

See

O’Sullivan Corp. v. Duro-Last, Inc., 7 F. App’x 509, 516 (6th Cir.
2001) (internal quotation and citation omitted).

To establish

waiver, there must be a clear, unequivocal, and decisive act of a
party showing such a purpose to relinquish.

See 28 Eclavea &

Surette, American Jurisprudence, Estoppel and Waiver § 183 (2nd
ed.) (citing D & S Realty, Inc. v. Markel Ins. Co., 280 Neb. 567,
588 (Neb. 2010), and Commonwealth ex rel. Pennsylvania Attorney
Gen. Corbett v. Griffin, 596 Pa. 549, 566 (Pa. 2008)).
In reaching his decision that Stevens-Bratton had not waived
her opportunity to conduct expert discovery, the Magistrate Judge
said that “Stevens-Bratton moved for expert discovery promptly
after the court’s ruling on the first summary judgment motion[,]”
and that “given this context, [her] delay was not so egregious as
to constitute a waiver.”

(ECF No. 205 at 4.)

TruGreen argues

that the Magistrate Judge erred in finding that Stevens-Bratton
had “moved for expert discovery promptly” because Stevens-Bratton
made the “strategic decision” to wait “19 months” to request expert
discovery, which is not “prompt[].”

(See ECF No. 206 at 19-20.)

A brief review of the timing in this case establishes the
“context” to which the Magistrate Judge referred.
4.)

(ECF No. 205 at

The parties agreed that Stevens-Bratton could move the court

for expert discovery after merits discovery ended.
116 at 4.)

(See ECF No.

Merits discovery ended on July 31, 2018.

(Id.)

In

September 2018, TruGreen filed an additional motion for partial
10

summary judgment, addressing Stevens-Bratton’s claims unrelated to
the ATDS issue.

(ECF No. 156.)

Stevens-Bratton spent the next

two months responding to that motion.

(See ECF Nos. 162, 163.)

That motion became ripe at the end of November 2018.
Nos. 170, 171.)

(See ECF

A little more than three months later, in March

2019, the Court held a status conference at which the parties
agreed to put the case on hold until the Court ruled on the pending
summary judgment motions.

(See ECF No. 178.)

In part, this was

done to promote judicial economy and spare both parties expense if
the Court granted either dispositive motion.

On February 4, 2020,

the Court issued an order that disposed of the pending summary
judgment motions.

(ECF No. 192.)

On February 14, 2020, ten days

later, Stevens-Bratton asked to conduct expert discovery.
ECF No. 198.)

(See

Stevens-Bratton could only have requested expert

discovery within a seven-month period (August 2018 – March 2019),
two months of which she spent responding to TruGreen’s motion for
summary judgment. Given the short time and the two pending summary
judgment motions, the Court agrees with the Magistrate Judge that
it was not “egregious” for Stevens-Bratton not to request expert
discovery.

(ECF No. 205 at 4.)

The context of the litigation

does not support a conclusion that Stevens-Bratton intentionally,
“clear[ly],

unequivocal[y],

and

decisive[ly]”

opportunity to conduct expert discovery.

abandoned

her

PolyOne Corp., 937 F.3d

at 697; American Jurisprudence, Estoppel and Waiver § 183.
11

The

Magistrate Judge did not err in concluding that Stevens-Bratton
did not waive her opportunity to conduct expert discovery.
V.

Conclusion
For

OVERRULED.

the

foregoing

reasons,

TruGreen’s

objections

The Magistrate Judge’s order is AFFIRMED.

So ordered this 10th day of June, 2020.

/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

12

are