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Cunningham v. Rapid Response Monitoring Services, Inc.

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

April 20, 2018


          Honorable Waverly D. Crenshaw, Jr., Chief District Judge.



         The Court referred this pro se action to the Magistrate Judge for pretrial proceedings under 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. See Docket Entry No. 4. The case is currently set for a jury trial on May 29, 2018. See Docket Entry No. 91.

         Presently pending are the motions for summary judgment of Rapid Response Monitoring Services, Inc. (Docket Entry No. 96) and Security Systems, Inc., d/b/a Safeguard America, Inc., and Homeland Security, LLC (Docket Entry No. 101). Plaintiff has responded in opposition to both motions. See Docket Entry Nos. 105 and 106. Set out below is the undersigned's recommendation for disposition of the motions.

         I. BACKGROUND

         Craig Cunningham (“Plaintiff”) is a resident of Nashville, Tennessee. He claims that, during the summer of 2015, he received at least twenty-eight phone calls to his cellular phone, sometimes only one or two seconds apart, and text messages from callers purporting to be conducting a “safety survey” but in fact marketing home security systems and related services. See Second Amended Complaint (Docket Entry No. 57 at ¶¶ 1, 13, and 27). Plaintiff 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 pre-recorded 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. (“Rapid Response”). Id. at ¶¶ 35-43. Plaintiff indicated to follow-up callers that he was interested in the offer and he met with the installer, but it appears that he never actually received a security system. See Docket Entry No. 85 at ¶¶ 15-17. Plaintiff alleges that he spoke on the telephone to representatives of Safeguard America and Homeland Security, LLC (“Homeland”). Id. at ¶¶ 2, 6, and 30.

         Based upon these events, Plaintiff brought this pro se lawsuit on July 31, 2015, against Safeguard America, Rapid Response, Homeland, and various individual defendants based on their status as officers and/or managers of the three business entities. He asserted two claims for actual or statutory damages under the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. (“TCPA”). In Count I, he alleges that Defendants' actions constituted multiple breaches of the TCPA because Defendants used an automated telephone dialing system to place calls to Plaintiff's cell phone in violation of 47 U.S.C. § 227(b). Id. at ¶ 82. In Count II, he alleges that Defendants' actions constituted multiple violations of 47 U.S.C. § 227(c)(5) “by way of” 47 C.F.R. § 64.1200(d) because Defendants failed to comply with the requirements to maintain employees and train employees on the use of a do-not-call list. Id. at ¶ 84. In Count III, he alleges that Defendants engaged in a civil conspiracy to violate the TCPA by their attempt to solicit and sell alarm devices and monitoring services. Id. at ¶ 86.

         After being filed, the case underwent a lengthy period of initial pretrial proceedings. Plaintiff filed an amended complaint, to which some of the defendants responded by filing motions to dismiss. Plaintiff was then granted leave to file a second amended complaint containing additional factual allegations. In light of the second amended complaint, the Court denied the then pending motions to dismiss without prejudice to being re-filed by the defendants. See Order entered August 9, 2016 (Docket Entry No. 56). A second round of motions to dismiss then occurred. After a several month period of briefing, the Court granted in part and denied in part the motions to dismiss. See Order entered April 26, 2017 (Docket Entry No. 88). All of the named individual defendants were dismissed from the action, Count II was dismissed as to all parties, and Count I was dismissed insofar as it relies on a theory of apparent authority against Defendant Rapid Response. Id. A scheduling order was thereafter entered providing for an abbreviated period of pretrial activity given the age of the case and the proceedings that had already occurred. See Docket Entry No. 90.

         Defendants Safeguard, Homeland, and Rapid Response then filed timely motions for summary judgment in their favor on the merits of the claims remaining in the lawsuit. See Docket Entry Nos. 96 and 101. Plaintiff's initial response to motions was to file, on the deadline for his response to the motions for summary judgment, a motion seeking the voluntary dismissal of his claims against Defendants without prejudice. See Docket Entry No. 102. The Court denied the motion, finding that a voluntary dismissal without prejudice was not justified given the proceedings that had taken place in the lawsuit. See Order entered December 12, 2017 (Docket Entry No. 104). Plaintiff thereafter filed his response in opposition to the motions for summary judgment. See Docket Entry Nos. 105 and 106.[1]


         In its motion, Defendant Rapid Response argues that there is a lack of evidence supporting Plaintiff's claim that it is liable for violating 47 U.S.C. § 227(b) for making calls to his cellular phone using an automated dialing device. It contends that it is not directly liable for these calls because it did not make these calls and, further that it cannot be deemed vicariously liable for any violation because whoever made such calls did not make the calls with actual express or implied authority from Rapid Response. Rapid Response also contends that it was not aware of any facts that would allow it to be found liable under the theory of ratification. Finally, Rapid Response contends that there is no proof supporting the claim that it conspired with any entity to violate Plaintiff's rights under the TCPA. In support of its motion, Rapid Response relies upon a Statement of Undisputed and Material Facts (Docket Entry No. 98) and the affidavit, and exhibits attached thereto, of Russell MacDonnell, the Chairman and Chief Executive Officer of Rapid Response (Docket Entry No. 100).

         In their motion, Defendants Safeguard and Homeland adopt and incorporate by reference the motion, supporting memorandum, and statement of undisputed material facts filed by Rapid Response. Safeguard and Homeland also argue that, as indicated by Plaintiff's responses to their written discovery requests, Plaintiff does not have evidence showing that they made the calls in question or instructed anyone to do so. Safeguard and Homeland contend that there is no competent or admissible evidence supporting Plaintiffs' claims against them.

         In his response to the motions for summary judgment, Plaintiff sets forth a single argument as to why the motions should be denied. He argues that he is entitled to relief under Rule 56(d) of the Federal Rules of Civil Procedure because:

Plaintiff has not had anywhere close to a reasonable opportunity to conduct discovery in this case and due to the arbitrarily short scheduling order of 45 days [he] was precluded from obtaining essential facts necessary to justify opposition to the motions for summary judgment. An attached affidavit details ...

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