Stevens-Bratton v. Trugreen, Inc.
Filing
234
ORDER denying 78 Motion to Strike. Signed by Judge Samuel H. Mays, Jr on 7/24/2020. (Mays, Samuel)
Case 2:15-cv-02472-SHM-tmp Document 234 Filed 07/24/20 Page 1 of 14
PageID 5246
IN THE UNITED STATES DISTRICT COURT
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-cv-2472
ORDER
Before the Court is Defendant TruGreen, Inc.’s (“TruGreen”)
July
26,
2017
Plaintiff’s
Motion
Class
Allegations”).
to
Strike
Action
Waiver
(ECF No. 78.)
responded on August 23, 2017.
September 8, 2017.
Class
Allegations
(“Motion
to
Based
Strike
on
Class
Plaintiff Kasie Stevens-Bratton
(ECF No. 89.)
TruGreen replied on
(ECF No. 101.)
For the following reasons, TruGreen’s Motion to Strike Class
Allegations is DENIED.
I.
Background
TruGreen is a lawn care service provider with its headquarters
in Memphis, Tennessee. (ECF No. 1 ¶ 12.) On May 15, 2013, StevensBratton entered into an agreement with TruGreen for lawn care
services (the “Service Agreement”).
(ECF No. 22-1 at 2-3.)
The
Case 2:15-cv-02472-SHM-tmp Document 234 Filed 07/24/20 Page 2 of 14
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Service Agreement includes contact, mandatory arbitration, and
class action waiver provisions:
CONTACT INFORMATION.
If I have provided TruGreen with my
cell phone number, I agree that TruGreen may contact me on
that number using an automatic telephone dialing system or
prerecorded or artificial voice to discuss my account and
lawn care services, including current and possible future
services, customer service and billing.
I understand that
providing my cell phone number is not required to purchase
TruGreen’s services and that I may revoke this permission at
any time.
MANDATORY ARBITRATION. Purchaser and TruGreen agree that any
claim, dispute or controversy (“Claim”) between them or
against the other or the employees, agents or assigns of the
other, and any Claim arising from or relating to this
agreement or the relationships which result from this
agreement including but not limited to any tort or statutory
Claim shall be resolved by neutral binding arbitration by the
American Arbitration Association (“AAA”), under the Rules of
the AAA in effect at the time the Claim is filed (“AAA
Rules”).... Each party shall be responsible for paying its
own attorneys’ fees, costs and expenses, the arbitration fees
and arbitrator compensation shall be payable as provided in
the AAA Rules.
However, for a Claim of $15,000 or less
brought by Purchaser in his/her/its individual capacity, if
Purchaser so requests in writing, TruGreen will pay
Purchaser’s arbitration fees and arbitrator compensation due
to the AAA for such Claim to the extent they exceed any filing
fees that the Purchaser would pay to a court with jurisdiction
over the Claim.
The arbitrator’s power to conduct any
arbitration proceeding under this arbitration agreement shall
be limited as follows: any arbitration proceeding under this
agreement will not be consolidated or joined with any
arbitration proceeding under any other agreement, or
involving any other property or premises, and will not proceed
as a class action or private attorney general action. The
foregoing prohibition on consolidated, class action and
private attorney general arbitrations is an essential and
integral part of this arbitration clause and is not severable
from the remainder of the clause.... This arbitration
agreement is made pursuant to a transaction involving
interstate commerce and shall be governed by the Federal
Arbitration Act. 9 U.S.C. Sections 1-16.... Neither party
shall sue the other party with respect to any matter in
2
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PageID 5248
dispute between the parties other than for enforcement of
this arbitration agreement or of the arbitrator’s award. THE
PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT OR
OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE
A JUDGE OR JURY DECIDE THEIR CASE, BUT THEY CHOOSE TO HAVE
ANY DISPUTES DECIDED THROUGH ARBITRATION.
CLASS ACTION WAIVER.
Any Claim must be brought in the
parties’ individual capacity, and not as a plaintiff or class
member in any purported class, collective, representative,
multiple plaintiff, or similar basis (“Class Action”), and
the parties expressly waive any ability to maintain any Class
Action in any forum whatsoever.
The arbitrator shall not
have authority to combine or aggregate similar claims or
conduct any Class Action.
Nor shall the arbitrator have
authority to make an award to any person or entity not a party
to the arbitration. Any claim that all or part of this Class
Action Waiver is unenforceable, unconscionable, void, or
voidable may be determined only in a court of competent
jurisdiction and not by an arbitrator. THE PARTIES UNDERSTAND
THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT
AND TO HAVE A JUDGE OR JURY DECIDE THEIR CASE AND TO BE PARTY
TO A CLASS OR REPRESENTATIVE ACTION, HOWEVER, THEY UNDERSTAND
AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY, THROUGH
ARBITRATION.
(ECF No. 22-1 at 3.)
“at
any
time
by
The Service Agreement allows cancellation
written
oral
notification
.
.
.
Cancellation is “without penalty or obligation.”
.”
(Id.)
(Id.)
The
Service Agreement is silent on the terms and obligations, if any,
that survive its cancellation.
(See generally id.)
TruGreen provided lawn care services to Stevens-Bratton from
May 15, 2013, until May 15, 2014, when Stevens-Bratton cancelled
the Service Agreement.
(See ECF No. 22-1 at 2; ECF No. 39-1 ¶ 2.)
Stevens-Bratton provided two telephone numbers on the Service
Agreement, one under the “Home Phone” section, and a different one
under the “Cell Phone” section.
(ECF No. 22-1 at 2.)
3
On January
Case 2:15-cv-02472-SHM-tmp Document 234 Filed 07/24/20 Page 4 of 14
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27, 2015, Stevens-Bratton began to receive telemarketing calls
from TruGreen on her cellular telephone.
(ECF No. 1 at ¶ 18.)
Stevens-Bratton alleges those calls were made by an automatic
telephone dialing system (“ATDS”).
(See id. ¶¶ 29-30.)
Stevens-
Bratton asked TruGreen to stop calling, but the calls continued.
(Id. ¶ 23.)
On July 15, 2015, Stevens-Bratton filed this putative class
action against TruGreen, alleging violations of the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C. § 227.
(ECF No. 1.)
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 Sixth Circuit reversed.
Stevens-Bratton v. TruGreen, Inc., 675 F. App’x 563 (6th Cir.
2017).
Bratton
The Sixth Circuit held that “the dispute between Stevensand
TruGreen
d[id]
not
‘arise
under’
the
[Service
Agreement],” and therefore, the Service Agreement’s arbitration
provision did not bind Stevens-Bratton to arbitration because “the
4
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presumption in favor of postexpiration arbitration of matters []
appl[ies]
‘only
contract.’”
where
a
dispute
has
its
real
source
in
the
See Stevens-Bratton, 675 F. App’x at 565, 567-71
(citing Litton Fin. Printing Div., a Div. of Litton Bus. Sys.,
Inc. v. NLRB, 501 U.S. 190, 193 (1991)).
On appeal, TruGreen
argued that, if the Sixth Circuit held the arbitration provision
inapplicable, the class action waiver provision in the Service
Agreement was applicable, and the Sixth Circuit should affirm on
that ground.
(Id. at 571.)
The Sixth Circuit declined to address
TruGreen’s class action waiver argument because “the district
court did not make findings of fact or conclusions of law regarding
the merits of Stevens-Bratton’s motion for class certification”
and “there [wa]s no record to review regarding application of the
class action waiver.”
(Id.)
On July 26, 2017, TruGreen filed its Motion to Strike Class
Allegations based on the class action waiver provision in the
Service Agreement.
II.
(ECF No. 78.)
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.
5
Stevens-Bratton’s
(ECF No. 1.)
The Court
See Mims v. Arrow Fin. Servs.,
Case 2:15-cv-02472-SHM-tmp Document 234 Filed 07/24/20 Page 6 of 14
LLC,
565
U.S.
368,
376
(2012);
accord
Charvat
v.
PageID 5251
EchoStar
Satellite, LLC, 630 F.3d 459, 463-65 (6th Cir. 2010).
III. Standard of Review
A
court
may
“require
that
the
pleadings
be
amended
to
eliminate allegations about representation of absent persons and
that the action proceed accordingly.” Fed. R. Civ. P. 23(d)(1)(D).
“A court may strike class action allegations before a motion for
class certification where the complaint itself demonstrates that
the requirements for maintaining a class action cannot be met.”
Loreto v. Procter & Gamble Co., No. 1:09-cv-815, 2013 WL 6055401,
at *2 (S.D. Ohio Nov. 15, 2013) (citing Pilgrim v. Universal Health
Card, LLC, 660 F.3d 943, 945 (6th Cir. 2011)).
Motions to strike
class allegations may be granted “where the unsuitability of class
treatment
is
evident
on
the
face
of
the
complaint
and
incontrovertible facts.” 1 McLaughlin on Class Actions § 3:4 (10th
ed. 2020)
(citing Doe v. City of Memphis, 928 F.3d 481, 497 (6th
Cir. 2019) (reversing order striking class allegations where the
panel concluded that discovery might support Rule 23 requirements
and
no
“prototypical
factual
certification was apparent)).
issue”
that
would
prevent
“Class allegations also may be
stricken when they are asserted in contravention of a clear legal
bar against class treatment of the action . . . .” Id. (collecting
cases).
6
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IV.
PageID 5252
Analysis
TruGreen
argues
that
Stevens-Bratton’s
class
allegations
should be stricken because the Service Agreement’s class action
waiver
provision
requires
her
to
bring
“[a]ny
Claim”
in
her
“individual capacity, and not as a plaintiff or class member in
any
purported
class,
collective,
representative,
multiple
plaintiff, or similar basis (“Class Action”) . . . .” (ECF No. 78
at 5-8) (citing No. 22-1 at 3.)
Stevens-Bratton argues that, when she cancelled the Service
Agreement,
“all
her
obligations,
rights,
and
responsibilities
under the Service Agreement terminated and nothing in the Service
Agreement governs the present lawsuit: including the Class Action
wavier.”
(ECF No. 89 at 6.)
Stevens-Bratton relies on the Sixth
Circuit’s decision in Stevens-Bratton, where the panel held that
the present dispute was not subject to arbitration under the
Service
Agreement’s
arbitration
provision
because
dispute did not arise under the Service Agreement.
the
present
(Id. at 7-8.)
Stevens-Bratton argues alternatively that the class action waiver
provision is substantively and procedurally unconscionable.
(Id.
at 9-15.)
Stevens-Bratton’s first argument is sufficient.
The express
holdings and logic underlying the Sixth Circuit’s decision in
Stevens-Bratton dictate the outcome.
7
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When a federal claim implicates the interpretation of state
contract law, the forum state’s choice-of-law principles apply.
Stratton v. Portfolio Recovery Assocs., LLC, 171 F. Supp. 3d 585,
596 (E.D. Ky. 2016), aff’d, 706 F. App’x 840 (6th Cir. 2017)
(citing Wise v. Zwicker & Assoc., P.C., 780 F.3d 710, 715 (6th
Cir. 2015)). “For claims based in contract law, ‘Tennessee follows
the rule of lex loci contractus, meaning it presumes that the
claims are governed by the jurisdiction in which [the contract]
was executed absent a contrary intent.’”
Bose v. De La Salud Bea,
No. 216CV02308JTFTMP, 2018 WL 8919932, at *7 (W.D. Tenn. Feb. 27,
2018) (subsequent history omitted) (citing Town of Smyrna v. Mun.
Gas Auth. of Ga., 723 F.3d 640, 645 (6th Cir. 2013)).
The
Service
Agreement
does
provision.
(See ECF No. 22-1.)
executed.
(Id.)
not
contain
choice-of-law
It does not say where it was
The parties assume in their briefing that
Tennessee law governs its interpretation.
same.
a
The Court assumes the
See GBJ Corp. v. E. Ohio Paving Co., 139 F.3d 1080, 1085
(6th Cir. 1998) (when there is no dispute that a certain state’s
substantive law applies, the court need not conduct a choice-oflaw analysis sua sponte).
When resolving disputes about contract interpretation, the
Court must “ascertain the intention of the parties based upon the
usual, natural, and ordinary meaning of the contractual language.”
Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999) (citation
8
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omitted).
PageID 5254
“The intent of the parties is presumed to be that
specifically expressed in the body of the contract.”
Planters Gin
Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885, 890 (Tenn.
2002).
“‘[C]ontractual
course,
upon
determined
obligations
termination
by
contract
of
will
the
cease,
in
[contract].
interpretation.
.
.
the
ordinary
Exceptions
.
are
[S]tructural
provisions relating to remedies and dispute resolution — for
example, an arbitration provision — may in some cases survive in
order to enforce duties arising under the contract.’”
Hinnant v.
Am. Ingenuity, LLC, 554 F. Supp. 2d 576, 583 (E.D. Pa. 2008)
(alterations in original) (quoting Litton, 501 U.S. at 207–08).
“‘[A]n expired contract has by its own terms released all its
parties
from
obligations
their
already
unsatisfied.’”
respective
fixed
contractual
under
the
obligations,
contract
but
except
as
yet
Rhode Island Council 94 v. Rhode Island, 705 F.
Supp. 2d 165, 175 (D.R.I. 2010) (quoting Litton, 501 U.S. at 206).
Parties include a survival clause in a contract when they
intend their contractual obligations to survive termination of the
agreement.
TSI USA, LLC v. Uber Techs., Inc., No. 3:16-CV-2177-
L, 2017 WL 106835, at *5 (N.D. Tex. Jan. 11, 2017), aff’d, No.
3:16-CV-2177-L, 2017 WL 3209399 (N.D. Tex. June 19, 2017).
Courts
have found that class-action waiver provisions survive termination
of an agreement when there is express language providing for
9
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survival.
PageID 5255
See, e.g., Horton v. Dow Jones & Co., Inc., 804 F. App’x
81, 84 (2d Cir. 2020).
When there is no applicable survival
clause, a provision may “survive termination of the agreement where
[the provision is] broadly written to apply to ‘any legal dispute’
and the dispute involves facts and occurrences that arose before
expiration of the contract.”
Cottman Ave. PRP Grp. v. AMEC Foster
Wheeler Envtl. Infrastructure Inc., 439 F. Supp. 3d 407, 435 (E.D.
Pa. 2020) (citing TriState HVAC Equip., LLC v. Big Belly Solar,
Inc., 752 F. Supp. 2d 517, 535 (E.D. Pa. 2010), and Corbin on
Contracts § 67.2, at 12 (rev. ed. 2003)); cf. Litton, 501 U.S. at
205-08 (holding that there is a presumption that arbitration
clauses survive the termination of an agreement when the subsequent
claim
“involves
facts
and
occurrences
that
arose
before
expiration, where an action taken after expiration infringes a
right that accrued or vested under the agreement, or where, under
normal
principles
of
contract
interpretation,
the
disputed
contractual right survives expiration of the remainder of the
agreement”); 1 Huffman v. Hilltop Cos., LLC, 747 F.3d 391, 397–98
(6th Cir. 2014) (holding that arbitration provision survived the
termination of a contract, even when that arbitration provision
was not specifically mentioned in an otherwise specific survival
1
In Stevens-Bratton, the Sixth Circuit applied Litton, holding that the
arbitration provision in the Service Agreement did not survive StevensBratton’s cancellation of the Service Agreement. See 675 F. App’x at
567-72. A similar analysis applies here.
10
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PageID 5256
clause because, “in considering the contract as a whole . . . the
parties did not clearly intend for the survival clause to serve as
an exhaustive list of the provisions that would survive expiration
of the agreement”).
It
is
undisputed
agreement.
It
is
that
the
undisputed
Service
that
Agreement
is
a
valid
Stevens-Bratton
validly
cancelled the Service Agreement around May 15, 2014.
It is
undisputed that, beginning on January 27, 2015, Stevens-Bratton
received telemarketing calls from TruGreen to the telephone number
she
had
provided
TruGreen
in
the
Service
Agreement.
It
is
undisputed that the Service Agreement does not contain a survival
clause in which the parties expressly stated that the class action
waiver provision would have post-cancellation effect.
There is no survival clause in the Service Agreement.
The
plain language of the Service Agreement demonstrates the parties
intended
that
its
provisions
would
not
survive
cancellation.
Planters Gin Co., 78 S.W.3d at 890 (“The intent of the parties is
presumed to be that specifically expressed in the body of the
contract.”); Hinnant, 554 F. Supp. 2d at 583 (“[C]ontractual
obligations will cease, in the ordinary course, upon termination
of the [contract].”).
TruGreen argues that “[t]he Class Action
Waiver provision is not limited by time, subject matter, or forum,”
(ECF No. 78 at 8), and that “[a] plain and sensible reading of the
Class Action Waiver is that it must apply to ‘any claim, dispute
11
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PageID 5257
or controversy’ even after the parties have terminated their lawn
care service relationship,” (ECF No. 101 at 3).
Although there is
language waiving Stevens-Bratton’s ability to bring “any claim” in
a class action, there is no language in the Service Agreement that
her waiver applies post-cancellation.
TruGreen seeks to read into
the Service Agreement a survival clause that does not exist.
Because the class action waiver is a “provision[] relating to
remedies and dispute resolution,” Hinnant, 554 F. Supp. 2d at 583,
it may survive the cancellation of the Service Agreement if it is
broadly written to apply to any legal dispute and the dispute turns
on facts and occurrences that arose before the expiration of the
contract,
Cottman Ave. PRP Grp., 2020 WL 757834, at *21.
The class action waiver provision is not applicable here
because
the
current
dispute
does
not
“involve[]
facts
and
occurrences that arose before expiration of the contract.”
Id.
The Sixth Circuit has held that the majority of the material facts
and
occurrences
in
the
current
dispute
did
not
arise
before
Stevens-Bratton’s cancellation of the Service Agreement:
[T]he memorialization of Stevens-Bratton’s lawn care services
is irrelevant to this case and thus not material, as her
dispute only deals with phone calls and not anything
concerning the services TruGreen provided her.
Further,
usually the agreement itself or the negotiation thereof, is
not part of the inquiry of material facts concerning the
dispute.
Thus, only two of TruGreen’s alleged material
occurrences
before
the
expiration
of
the
agreement
remain: Stevens-Bratton providing her cell phone number and
allowing TruGreen to call her regarding “possible future
services.”
However, TruGreen overlooks the other material
12
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PageID 5258
occurrences surrounding the dispute; indeed, the occurrences
at the heart of the dispute itself — the more than ten phone
calls Stevens-Bratton received after the agreement expired.
The phone calls are the majority of the material events of
the dispute and thus the majority of events occurred after
the agreement expired. Absent those phone calls, there is in
fact no dispute at all.
Stevens-Bratton, 675 F. App’x at 568–69 (emphasis in original and
citations omitted).
That conclusion is equally applicable here.
The class action waiver provision may survive the termination
of the Service Agreement if TruGreen’s right to call StevensBratton “accrued or vested under the agreement, or where, under
normal principles of contract interpretation, [TruGreen’s right]
survives expiration of the remainder of the agreement.”
501 U.S. at 205-08.
Litton,
The Sixth Circuit also directly addressed
this issue. The court held that “TruGreen’s right to call StevensBratton is not the type of right that we typically view as accruing
or vesting under a contract,” and “TruGreen’s disputed right to
call Stevens-Bratton does not survive expiration under the contact
under normal principles of contract interpretation.”
Bratton, 675 F. App’x at 569-71.
Stevens-
That conclusion is equally
applicable here.
The Service Agreement’s class action waiver provision is not
applicable here. 2 TruGreen has not shown “a clear legal bar against
class treatment of the action.”
2
1 McLaughlin on Class Actions
Because the class action waiver provision is not applicable, the Court
need not address Stevens-Bratton’s unconscionability arguments.
13
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§ 3:4.
PageID 5259
TruGreen’s Motion to Strike Class Allegations based on the
class action waiver provision in the Service Agreement is DENIED.
V.
Conclusion
For the foregoing reasons, TruGreen’s Motion to Strike Class
Allegations is DENIED.
So ordered this 24th day of July, 2020.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
14
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