United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.
the Court is a Report and Recommendation of the Magistrate
Judge (“R&R”) (Doc. No. 81) making the
1. The motion to dismiss (Doc. No. 58) filed by Defendants
Rapid Response Monitoring Services, Inc. and Russell
MacDonnell (“RRMS Defendants”) should be granted
because Plaintiff Craig Cunningham lacks Article III standing
to pursue his claims;
2. If Cunningham is held to have standing, Cunningham's
request for leave to conduct limited discovery on the issue
of personal jurisdiction with regard to David Roman, John
Coursey, and John Keith (“Individual Defendants”)
(Doc. No. 78) should be denied on the merits because
Cunningham has failed to show any persuasive basis upon which
he should be permitted to conduct additional discovery to
support his twice-amended complaint, and Individual
Defendants' Motion to Dismiss (Doc. No. 70) should be
3. To the extent that the RRMS Defendants request an award of
attorney's fees in their favor (Doc. No. 59 at 24-25),
such a request should be denied at this time as premature.
has filed Objections (Doc. No. 84) and Amended Objections
(Doc. No. 85). The Court has reviewed the R&R and the
parties' briefs and has conducted a de novo review of the
record. Insofar as Plaintiff's objections pertain to
Recommendations 2 and 3, they are OVERRULED and the
Magistrate Judge's Recommendations are ADOPTED. For the
reasons discussed below, the Court DECLINES TO ADOPT
Recommendation 1 and the RRMS Defendants' Motion to
Dismiss will be GRANTED in part and DENIED in part.
Individual Defendants' Motion to Dismiss will be GRANTED.
Count II will be dismissed as to all parties, and Counts I
and III will be dismissed as applied to Russell MacDonnell,
David Roman, John Coursey, and John Keith. Count I will also
be dismissed insofar as it relies on a theory of apparent
authority against RRMS Defendants. Cunningham's request
to conduct discovery on the question of personal jurisdiction
(Doc. No. 78) will be DENIED.
is a Davidson County resident who claims to have received at
least twenty-eight phone calls, sometimes only one or two
seconds apart, from callers purporting to be conducting a
“safety survey” but in fact marketing home
security systems and related services. (Doc. No. 57 at
¶¶ 1, 13, 27.) Cunningham participated in one of
those calls-he says, for the purpose of ascertaining the
identity of the party responsible-and found that it consisted
of a prerecorded message instructing him to press
‘1' to speak to an agent about the survey.
(Id. at ¶¶ 13- 14.) The marketing effort
turned out to be in support of a deal pursuant to which the
recipient would accept the installation of a
“free” home security system by Security Systems
Inc. d/b/a Safeguard America (“Safeguard
America”) and would agree to pay ongoing fees for
monitoring services to be provided by Rapid Response
Monitoring Services, Inc. (“RRMS”). (Id.
at ¶¶ 35- 43.)
indicated to follow-up callers that he was interested in the
offer, and he met with the installer, but the Complaint is
somewhat unclear with regard to whether he ever actually
received the system. (Id. at ¶¶ 20-22.) In
his Amended Objections, Cunningham states that he did not
receive the system and that his dealings with the Safeguard
America were in the furtherance of his research to support
this case. (Doc. No. 85 at ¶¶ 15-17.) This
Court's docket shows that Cunningham is a serial
plaintiff in cases involving unsolicited telemarketing.
See, e.g., Cunningham v. Newport Mktg.,
LLC, No. 3:14-cv-02400; Cunningham v. Park Lane
Digital Media, No. 3:15-cv-00467; Cunningham v.
Trilegiant Corp., No. 3:15-cv-00989; Cunningham v.
Ignite Capital, LLC, No. 3:15-cv-00894; Cunningham
v. Endless Access LLC, No. 3:15-cv-00178; Cunningham
v. The Altitude Grp., LLC, No.
identified a number of potential defendants related to the
security system marketing scheme and filed this pro se
action. Safeguard America. and Homeland Security, LLC, are
corporations whose representatives allegedly spoke to
Plaintiff on the telephone. (Doc. No. 57 at ¶¶ 2,
6, 30.) RRMS allegedly provides the alarm monitoring service
used in the alarm systems installed by Safeguard and
Homeland. (Id. at ¶¶ 4, 42-43.) Cunningham
also named various individual defendants based on their
status as officers and/or managers of those entities. Counts
I and II respectively assert claims under 47 U.S.C. §
227(b) and 47 U.S.C. § 227(c)(5) of the Telephone
Consumer Protection Act (“TCPA”). (Doc. No. 57 at
¶¶ 81-84.) Count III alleges civil conspiracy to
violate the TCPA (Id. at ¶¶ 85-86.) Both
the RRMS Defendants and the Individual Defendants have filed
motions asking the Court to dismiss Cunningham's claims.
(Doc. No. 58; Doc. No. 70.) Cunningham, in response to those
motions, seeks discovery regarding personal jurisdiction over
the Individual Defendants. (Doc. No. 78.) The R&R
recommends that no discovery be granted and the case be
dismissed because Cunningham lacks standing to bring his
Standard of Review
before the Court are motions to dismiss pursuant to Rule
12(b)(1), Rule 12(b)(2), and Rule 12(b)(6).
12(b)(1) governs dismissal for lack of subject matter
jurisdiction. “Rule 12(b)(1) motions to dismiss . . .
generally come in two varieties: a facial attack or a factual
attack.” Gentek Bldg. Prods., Inc. v.
Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007).
“When reviewing a facial attack, a district court takes
the allegations in the complaint as true, which is a similar
safeguard employed under 12(b)(6) motions to dismiss.”
Id. “When considering a factual attack upon
the court's jurisdiction, the court may weigh the
evidence, and no presumption of truth applies to the
plaintiff's factual allegations.” Hickam v.
Segars, 905 F.Supp.2d 835, 838 (M.D. Tenn. 2012) (citing
Gentek, 491 F.3d at 330). “In its review, the
district court has wide discretion to allow affidavits,
documents, and even a limited evidentiary hearing to resolve
jurisdictional facts.” Gentek, 491 F.3d at
12(b)(2) governs dismissal for lack of personal jurisdiction.
When a district court rules on a motion to dismiss under Rule
12(b)(2) without conducting an evidentiary hearing, the court
must consider the pleadings and affidavits in a light most
favorable to the plaintiff. Beydoun v. Wataniya Rests.
Holding, Q.S.C., 768 F.3d 499, 504 (6th Cir. 2014)
(citing CompuServe, Inc. v. Patterson, 89 F.3d 1257,
1262 (6th Cir. 1996)). To defeat the Rule 12(b)(2) motion,
the nonmoving party “need only make a prima facie
showing of jurisdiction.” Id. at 504 (quoting
CompuServe, 89 F.3d at 1262). “[A] court
disposing of a 12(b)(2) motion does not weigh the
controverting assertions of the party seeking dismissal, . .
. because we want to prevent nonresident defendants from
regularly avoiding personal jurisdiction simply by filing an
affidavit denying all jurisdictional facts.”
CompuServe, 89 F.3d at 1262 (internal quotation and
emphasis omitted). “Dismissal in this procedural
posture is proper only if all the specific facts which the
plaintiff . . . alleges collectively fail to state a prima
facie case for jurisdiction.” Id.
12(b)(6) governs dismissal for failure to state a claim upon
which relief can be granted. Rule 12(b)(6) requires the Court
to take all the factual allegations in the complaint as true.
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face. Id. A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. Id. Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice. Id. When there are well-pleaded
factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief. Id. at 679.
as here, a case is at the pleading stage, the plaintiff must
‘clearly . . . allege facts
demonstrating' each element” required to establish
standing. Spokeo, Inc. v. Robins, 136 S.Ct. 1540,
1547 (2016) (quoting Warth v. Seldin, 422 U.S. 490,
518 (1975)). “To satisfy Article III's standing
requirements, a plaintiff must show: ‘(1) [he] has
suffered an ‘injury-in-fact' that is (a) concrete
and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3)
it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.'”
Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576,
581 (6th Cir. 2016) (quoting Loren v. Blue Cross &
Blue Shield of Mich., 505 F.3d 598, 606-07 (6th Cir.
2007)). The Supreme Court has recently emphasized that the
requirement that an injury-in-fact be “concrete and
particularized” encompasses two distinct requirements.
Spokeo, 136 S.Ct. at 1548. “For an injury to
be ‘particularized, ' it ‘must affect the
plaintiff in a personal and individual way.'”
Id. (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 n.1 (1992)). “A
‘concrete' injury, ” on the other hand,
“must be ‘de facto'; that is, it must
actually exist.” Id. Unless an alleged injury
satisfies both requirements, it cannot give rise to standing
under Article III.
injuries associated with unwanted marketing calls may be
comparatively slight, but they are both real and well
documented. Unwanted telemarketing can be a
“nuisance” and “an intrusive invasion of
privacy.” Mims v. Arrow Fin. Servs., LLC, 565
U.S. 368, 372 (2012) (quoting TCPA, 105 Stat. 2394, note
following 47 U.S.C. § 227). Abusive telemarketing can
also “waste the recipients' time” and may
even in some cases “impede the free flow of
commerce.” Am. Copper & Brass, Inc. v. Lake
City Indus. Prod., Inc., 757 F.3d 540, 544 (6th Cir.
2014) (citing Ira Holtzman, C.P.A. v. Turza, 728
F.3d 682, 684 (7th Cir. 2013)). Such intangible harms were no
strangers to the courts even before Congress chose to address
them- “[a]ctions to remedy defendants' invasions of
privacy, intrusion upon seclusion, and nuisance have long
been heard by American courts, and the right of privacy is
recognized by most states.” Van Patten v. Vertical
Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017)
(citing Restatement (Second) of Torts § 652(B)).
1991, Congress, in part due to the interstate character of
much telemarketing, elected to combat certain particularly
unwelcome telemarketing practices by adopting the
TCPA. 47 U.S.C. § 227. The TCPA provides
for enforcement both by state governments, 47 U.S.C. §
227(g)(1), and private individuals who are the targets of
certain prohibited practices, 47 U.S.C. § 227(b),
(c)(5). Congress's conclusion that the harms addressed by
the TCPA were sufficient to support a private cause of action
guides this Court's standing analysis but is not
conclusive: although a plaintiff cannot “automatically
satisf[y] the injury-in-fact requirement” merely
because “a statute grants [him] a statutory right and
purports to authorize [him] to sue to vindicate that right,
” “the judgment of Congress play[s an] important
role[ ]” in evaluating whether the injury underlying a
statutory cause of action is sufficiently concrete.
Spokeo, 139 S.Ct. at 1549. That role is especially
pronounced where a harm is concrete but not wholly tangible,
“because Congress is well positioned to identify
intangible harms that meet minimum Article III
TCPA was “[p]assed in response to ‘[v]oluminous
consumer complaints about abuses of telephone technology-for
example, computerized calls dispatched to private
homes.'” Sandusky Wellness Ctr., LLC v. Medco
Health Sols., Inc., 788 F.3d 218, 221 (6th Cir. 2015)
(quoting Mims, 565 U.S. at 370-71). A Senate sponsor
of the TCPA expressed the public's discontent with
unsolicited telemarketing as follows: “Computerized
calls are the scourge of modern civilization. They wake us up
in the morning; they interrupt our dinner at night; they
force the sick and elderly out of bed; they hound us until we
want to rip the telephone right out of the wall.”
Mims, 565 U.S. at 752 (quoting 137 Cong. Rec. 30,
821-22 (1991)). Hyperbolic though the Senator's comments
may be, they highlight Congress's ability, as a body
directly accountable to voters, to hear and heed public cries
about what injuries are real ...