Stevens-Bratton v. TruGreen, Inc.

KASIE STEVENS-BRATTON,individually and on behalf of all others similarly situated, Plaintiff, v. TRUGREEN, INC., Defendant.

No. 2:15-cv-2472

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

June 10, 2020

ORDER

Before the Court is Defendant TruGreen, Inc.'s ("TruGreen") Objections to the Magistrate Judge's Order Granting Motion to Conduct Expert Discovery, filed on April 23, 2020. (ECF No. 206.) Plaintiff Kasie Stevens-Bratton responded on May 7, 2020. (ECF No. 209.) TruGreen replied on May 18, 2020. (ECF No. 220.)

For the following reasons, TruGreen's Objections are OVERRULED. The Magistrate Judge's order is AFFIRMED.

I. Background

Stevens-Bratton filed this putative class action against TruGreen, alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the "TCPA"). (ECF No. 1.) Stevens-Bratton alleges, inter alia, that TruGreen called her cellular telephone several times without her permission using an automatic telephone dialing system ("ATDS"),¹ a violation of 47 U.S.C. § 227(b)(1)(A). In October 2017, TruGreen filed a motion for summary judgment, arguing, in part, that its telephone dialing system is not an ATDS. (ECF No. 109-1 at 6-13.) Stevens-Bratton opposed summary judgment, arguing, inter alia, that she had not had a sufficient opportunity to conduct discovery about the features of TruGreen's telephone dialing system and that she needed "an opportunity for her expert to review information obtained in discovery . . . ." (ECF No. 117 at 6.)

About three weeks after TruGreen filed its motion for summary judgment, the Court entered a scheduling order setting "merits (non-expert) discovery" to be completed by July 31, 2018. (ECF No. 116 at 4.) The Court expressly reserved the parties' opportunity to conduct expert discovery. (Id.) ("The Parties request to approach the Court and submit an additional proposed scheduling order in order to schedule expert discovery and class certification briefing at the conclusion of the merits (non-expert) discovery phase."). July 31, 2018 came and went. The parties did not request further discovery because they were waitingfor the Court's decision on TruGreen's motion for summary judgment.² (See ECF No. 178; No. 206 at 9; No. 220 at 3-4 ¶ 7.)

On February 4, 2020, the Court granted in part, and denied in part, TruGreen's motion for summary judgment. (ECF No. 192.) Addressing TruGreen's ATDS arguments, the Court found that "Stevens-Bratton had not yet had a substantive chance to procure any discovery responses, deposition testimony, or expert testimony." (ECF No. 192 at 8-9.) The Court said that "[t]he parties have had the opportunity for further discovery. They can now address summary judgment on Stevens-Bratton's [ATDS claims] with the benefit of an adequate record."³ (Id. at 9.)

On February 14, 2020, the Court held a status conference at which Stevens-Bratton asserted the need to conduct expert discovery. (ECF No. 198.) Stevens-Bratton subsequently filed a motion to conduct expert discovery, (ECF No. 199), which the Court referred to the Magistrate Judge, (ECF No. 201). On April 9, 2020, the Magistrate Judge granted Stevens-Bratton's motion to conduct expert discovery. (ECF No. 205.) The Magistrate Judge found that:

[C]ourts often admit expert testimony about the technical features of purported ATDSs. The court cannot conclude any expert testimony Stevens-Bratton may develop would be soclearly inadmissible as to bar discovery. . . . Expert discovery may well be helpful in identifying the technical features of Trugreen's call system and allowing the parties to develop their arguments about whether Trugreen's system qualifies as an ATDS. . . . Though it would perhaps have been better practice to move to conduct expert discovery earlier, given this context, Stevens-Bratton's delay was not so egregious as to constitute a waiver.

(Id. at 3-4) (citations omitted.) On April 23, 2020, TruGreen timely objected to the Magistrate Judge's order. (ECF No. 206.)

II. Jurisdiction

The Court has jurisdiction over Stevens-Bratton's claims. Under 28 U.S.C. § 1331, United States district courts have original jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States." Stevens-Bratton's complaint alleges violations of the TCPA. (ECF No. 1.) The Court has federal question jurisdiction. See Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 376 (2012); accord Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 463-65 (6th Cir. 2010).

III. Standard of Review

Pursuant to Federal Rule of Civil Procedure 72(a), when a magistrate judge issues a non-dispositive order, "[a] party may serve and file objections to the order within 14 days after being served with a copy." Fed. R. Civ. P. 72(a). "The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law." Id.; see also 28 U.S.C. § 636(b)(1)(A); LR 72.1(g)(1). This standard of review is "limited." Massey v. City of Ferndale, 7F.3d 506, 509 (6th Cir. 1993). The "clearly erroneous" standard applies to factual findings made by the magistrate judge. Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992), aff'd, 19 F.3d 1432 (6th Cir. 1994) (citation omitted). The "contrary to law" standard applies to his legal conclusions. Turner v. City of Memphis, No. 17-cv-2447, 2019 WL 430934, at *2 (W.D. Tenn. Feb. 4, 2019). Rule 72(a) requires "considerable deference to the determinations of magistrates." In re Search Warrants Issued Aug. 29, 1994, 889 F. Supp. 296, 298 (S.D. Ohio 1995) (citing 7 Moore's Federal Practice ¶ 72.03). Deference "is especially appropriate where the magistrate judge has managed a . . . case from the outset and developed a thorough knowledge of the proceedings." Hyland v. Homeservices of Am., Inc., No. 3:05-cv-612, 2012 WL 1680109, at *3 (W.D. Ky. May 14, 2012) (internal citation, quotation marks, and alterations omitted).

A magistrate judge's factual findings are clearly erroneous when, on review of the entire record, "although there is evidence to support [the findings], the reviewing court . . . is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also In re Burke, 863 F.3d 521, 528 (6th Cir. 2017) (citation omitted); United States v. Hurst, 228 F.3d 751, 756 (6th Cir. 2000). "[T]he test is whether there is evidence in the record to support the lower court's finding, and whether its constructionof that evidence is a reasonable one." Heights Cmty. Cong. v. Hilltop Realty, Inc., 774 F.2d 135, 140-41 (6th Cir. 1985) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)).

"When examining legal conclusions under the 'contrary to law' standard, the Court may overturn 'any conclusions of law which contradict or ignore applicable [or binding] precepts of law, as found in the Constitution, statutes, or case precedent.'" Doe v. Aramark Educ. Res., Inc., 206 F.R.D. 459, 461 (M.D. Tenn. 2002) (quoting Gandee, 785 F. Supp. at 686); see also 32 Am. Jur. 2d Fed. Cts. § 140 (2018) ("A magistrate judge's order is contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure."). "Although legal authority may support an objection, the critical inquiry is whether there is legal authority that supports the magistrate's conclusion[;]" if so, the magistrate judge did not act contrary to law. Carmona v. Wright, 233 F.R.D. 270, 276 (N.D.N.Y. 2006) (citing Tompkins v. R.J. Reynolds Tobacco Co., 92 F. Supp. 2d 70, 79 (N.D.N.Y. 2000)). "That reasonable minds may differ on the wisdom of a legal conclusion does not mean it is clearly erroneous or contrary to law." Id. (citing Moss v. Enlarged City Sch. Dist. of City of Amsterdam, 166 F. Supp. 2d 668, 670 (N.D.N.Y. 2001)).

IV. Analysis

TruGreen argues that the Magistrate Judge acted contrary to law when he decided that: (1) expert discovery is necessary orhelpful to resolve another round of summary judgment; and (2) Stevens-Bratton did not waive her opportunity to take expert discovery. (ECF No. 206 at 13-20; No. 220 at 1 ¶ 1.)

TruGreen fails to establish that the Magistrate Judge's conclusions were contrary to law. Fed. R. Civ. P. 72(a). In its objection to the Magistrate Judge's order, TruGreen makes many of the arguments it made to the Magistrate Judge. (Compare ECF No. 206 at 13-14, 17-18, with No. 200 at 13, 17-18) (reciting arguments verbatim.) TruGreen is not entitled to a different result simply because it disagrees with the Magistrate Judge's ultimate conclusion. See Draper v. University of Tennessee, No. 08-1125, 2010 WL 11493685, at *1-2 (W.D. Tenn. June 7, 2010).

A. Expert Discovery

TruGreen argues that the Magistrate Judge acted contrary to law when he decided that expert discovery would be necessary or helpful in deciding summary judgment. (ECF No. 206 at 13-17.)

In reaching his decision that "[e]xpert testimony may well be helpful in identifying the technical features of Tru[G]reen's call system," the Magistrate Judge cited Eldridge v. Pet Supermarket, Inc., No. 18-cv-22531, 2020 WL 1076103, at *7 (S.D. Fla. Mar. 6, 2020), and Morgan v. On Deck Capital, Inc., No. 3:17-cv-00045, 2019 WL 4093754, at *3 (W.D. Va. Aug. 29, 2019), for the proposition that "courts often admit expert testimony about the technical features of purported ATDSs." (ECF No. 205 at 3.)TruGreen argues that "[t]his Court does not need an expert to conclude [that] TruGreen's [telephony system] do[es] not violate the TCPA[,]" because "[m]any courts in many jurisdictions have granted summary judgment to defendants without the aid of expert testimony where the defendant . . . offers proof that its telephony system cannot function as an ATDS." (ECF No. 206 at 14) (collecting cases.)

TruGreen's argument fails for two reasons. First, the proposition that courts sometimes grant summary judgment on the ATDS...