United States District Court, M.D. Tennessee, Nashville Division
Honorable Waverly D. Crenshaw, Jr., Chief District Judge.
REPORT AND RECOMMENDATION
BARBARA D. HOLMES UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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.
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.
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.
MOTIONS FOR SUMMARY JUDGMENT AND RESPONSE
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).
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.
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 ...