United States District Court, M.D. Tennessee, Nashville Division
M. Lawson, District Judge.
REPORT AND RECOMMENDATION
BARBARA D. HOLMES United States Magistrate Judge.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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,  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.
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).
case currently stands, there are twelve remaining Defendants.
Seven of these Defendants have been defaulted,  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,  have appeared and defended
the lawsuit. Like Plaintiff, they are each currently
proceeding pro se.
MOTION FOR SUMMARY JUDGMENT AND RESPONSES
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, ¶
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. 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.
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.
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).
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).
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 ...