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Cunningham v. Enagic USA, Inc.

United States District Court, M.D. Tennessee, Nashville Division

June 23, 2017

ENAGIC USA, INC., et al.,

          David M. Lawson, District Judge.


          BARBARA D. HOLMES United States Magistrate Judge.

         By Order entered November 10, 2015 (Docket Entry No. 39), this pro se action was referred to the Magistrate Judge for pretrial proceedings under 28 U.S.C. §§ 636(b)(1)(A) and (B), Rule 72(b) of the Federal Rules of Civil Procedure, and the Local Rules of Court.

         Presently pending before the Court is Plaintiff's motion for summary judgment (Docket Entry No. 194), to which responses in opposition have been filed. See Docket Entry No. 196, 200-202, 204, and 206. For the reasons set out below, the undersigned Magistrate Judge respectfully recommends that the motion be denied.


         Craig Cunningham (“Plaintiff”) is a resident of Nashville, Tennessee. On July 31, 2015, he filed this pro se lawsuit against seven defendants seeking damages under the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. (“TCPA”). See Complaint (Docket Entry No. 1). Plaintiff subsequently filed three amended complaints, see Docket Entry Nos. 5, 8, and 41, expanding to 20 the number of defendants sued under the TCPA and increasing the length of his pleadings from 10 pages to 45 pages.

         Plaintiff's lawsuit pertains to a lengthy series of interactions in 2014 and 2015 between himself and the defendants, who are individuals and businesses involved in the telemarketing and sales of services and products, including, 1) informational products and a “wealth building” system called the “Secret Success Machine, ” and, 2) Enagic water purification machines. See Third Amended Complaint (Docket Entry No. 41) at ¶¶ 26-134. Plaintiff contends that these services and products were nothing more than “get rich quick” schemes and pyramid schemes. Id. at ¶¶ 23-24. He further alleges that many of the Defendants knew each other and worked in concert together regarding the schemes and/or were agents or principals for corporate entities involved in either the schemes themselves or the process used to telemarket the schemes. Id. at ¶¶ 40 and 116-118. Plaintiff alleges that he was solicited to join these schemes through multiple telephone calls that were made to his cell phone with an auto dialer and that contained prerecorded messages. He also alleges that he received multiple text messages to his cell phone. He asserts that the calls and texts were not consented to by him and were not for emergency purposes.

         Based on these allegations, Plaintiff brings two specific counts for relief under the TCPA. In Count I, he alleges that Defendants' calls and texts constitute multiple violations of 47 U.S.C. § 227(b) because Defendants used an automated telephone dialing system to place calls to his cell phone that contained pre-recorded or automated messages. See Third Amended Complaint at ¶ 136. In Count II, he alleges that Defendants' actions constitute multiple violations of 47 U.S.C. § 227(c)(5), as codified under 47 C.F.R. § 64.1200, [1] because the calls had a pre-recorded message that did not state the name, address, or phone number of the calling party and because Defendants failed to have a do-not-call policy and failed to train their agents on the use of a do-not-call policy. Id. at ¶ 138. Because a violation of each TCPA provision permits a statutory damage award of up to $1, 500.00, Plaintiff seeks statutory damages of $3, 000.00 for each telephone call and text he received.

         Because of the number of Defendants Plaintiff attempted to bring into the lawsuit through his amended complaints, problems with service of process, improper answers that were filed by corporate defendants, and issues related to the pro se status of some Defendants, the case became a quagmire. Accordingly the Court entered a series of orders in August and September 2016 dealing with outstanding motions and issues. Of specific note were: 1) an order denying Plaintiff's motion for leave to file a fourth amended complaint, which would have added 37 new defendants via a 64 page amended complaint, see Order entered August 22, 2016 (Docket Entry No. 150); 2) the entry of scheduling order, see Order entered August 22, 2016; and 3) an order dismissing Defendant Enagic USA, Inc., from the case with prejudice, see Order entered September 28, 2016 (Docket Entry No. 156). Subsequently, Defendants 800 Link, Inc., and Scott Biel were dismissed, see Order entered February 23, 2017 (Docket Entry No. 208), as well as Defendants Jerry Maurer, Brian Kaplan, Terry Collins, Angela Linder, and Peter Wolfing. See Order entered June 14, 2017 (Docket Entry No. 237).

         As the case currently stands, there are twelve remaining Defendants. Seven of these Defendants have been defaulted, [2] and a hearing is set for August 15, 2017, on Plaintiff's pending motion that seeks an award of damages against them via a default judgment. See Order entered June 14, 2017 (Docket Entry No. 238). The remaining five Defendants are Peter Polselli, Jeffrey Howard, Dave Hill, Rick Freeman, and Walter Peterson, each of whom is alleged to have been involved in making phone calls and texts to Plaintiff. These Defendants, who all reside in different states, [3] have appeared and defended the lawsuit. Like Plaintiff, they are each currently proceeding pro se.


         By his motion, Plaintiff seeks summary judgment against the remaining Defendants. He contends that each Defendant directly made calls and/or sent text messages to his cell phone in violation of the TCPA. Specifically, he alleges that Defendant Polselli sent 46 texts, Defendant Howard made 10 calls and sent 3 texts, Defendant Hill made 4 calls and sent 14 texts, Defendant Freeman made 13 calls and sent 2 texts, and Defendant Peterson made 4 calls. See Motion for Summary Judgment (Docket Entry No. 194) at 1, ¶ 3.[4] He contends that each call and text message to him constitutes a separate violation of each of the two TCPA counts that he is pursuing and that the violations were willful, thus permitting trebled damages under the TCPA. Id. at 2-3, ¶¶ 15-17. Plaintiff argues that the facts establishing the TCPA violations are undisputed and because the statutory damages are fixed and simple to calculate, he is entitled to summary judgment in his favor. He requests damages of $3, 000.00 for each call and text message, resulting in a total damage award of $288, 000.00. Id. at 3, ¶ 18.[5] He further contends that the five Defendants should be deemed jointly and severally liable “due to the network marketing nature of the calls, products, and services as each of the defendants stood to gain had the Plaintiff purchased the products or services and the defendants were working in concern to sell the products and services using robocalls.” Id. At 1, ¶ 4. In support of his motion, he submits his own affidavit (Docket Entry No. 194 at 8-9) and a spreadsheet of the calls and texts at issue. Id. at 10-14.

         Four of the five remaining Defendants have responded in opposition to the motion. Despite repeatedly answering Plaintiff's Third Amended Complaint with a denial of wrongdoing, see Docket Entry Nos. 51, 109, and 154, Defendant Hill has not responded to the motion for summary judgment.

         Defendant Polselli asserts that Plaintiff provided his contact information and e-mailed Polselli on May 5 and 6, 2015, and argues that Plaintiff consented to receiving calls and information from Polselli. See Response (Docket Entry No. 196).

         Defendant Freeman denies making any phone calls or sending any text messages to Plaintiff and essentially denies all the allegations made against him by Plaintiff. See Response (Docket Entry Nos. 200-202).

         Defendant Peterson admits to calling Plaintiff three times, but asserts that the calls were not made using an auto-dialer, did not involve pre-recorded messages, and did not violate the TCPA. See Response (Docket Entry No. 204). Defendant Peterson further contends that Plaintiff consented to being contacted by Peterson, that Plaintiff has registered his phone number as a business number, and that Plaintiff has taken actions in order to ensnare other individuals and entities in litigation under the TCPA so that Plaintiff can obtain monetary settlements. Id. Defendant Peterson also raises arguments that Plaintiff's motion is untimely, that Plaintiff did ...

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