TCPA Violation

Listen to this article

7^th Circuit Court of Appeals

Case Name: Helping Hand Caregivers, LTD., v. Darden Restaurants, Inc., et al.

Case No.: 17-1282

Officials: WOOD, Chief Judge, and ROVNER and HAMILTON, Circuit Judges.

Focus: TCPA Violation

Helping Hand Caregivers, Ltd., (“Helping Hand”) filed a suit against Darden Restaurants, Inc., Mid Wilshire Consulting, Inc. (“Mid Wilshire”), Brian Kang, and Greg Jones, alleging a violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Specifically, Helping Hand asserted that Mid Wilshire, through Kang and Jones, sent an unsolicited fax advertisement to Helping Hand on behalf of Darden. The district court granted Darden’s motion for summary judgment and dismissed the claims against the remaining defendants without prejudice. Helping Hand subsequently stipulated that the dismissals against the remaining defendants should be treated as dismissals with prejudice, and therefore the decision was final and appealable. Helping Hand now appeals the grant of summary judgment to Darden, arguing that the district court applied the wrong legal standard in granting summary judgment and that the court erred in limiting discovery and denying its motion under Federal Rule of Civil Procedure 56(d).

Helping Hand asserts, however, that the lack of such evidence is a result of the district court’s refusal to allow it to depose two witnesses—Kasha Momot and Roberto Sanchez—and that the court erred in refusing that discovery and in denying its subsequent motion under Federal Rule of Civil Procedure 56(d). Rule 56(d) provides that “[i]f a non-movant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” As Helping Hand acknowledges, we review discovery decisions of the district court only for abuse of discretion. Kuttner v. Zaruba, 819 F.3d 970, 974 (7th Cir. 2016). Moreover, “’[a] trial judge’s decision to consider a defendant’s motion for summary judgment before allowing the plaintiff to depose certain witnesses is a discovery matter, which we review under the abuse of discretion standard.’” Davis v. G.N. Mortg. Corp., 396 F.3d 869, 885 (7th Cir. 2005), quoting Grayson v. O’Neill, 308 F.3d 808, 815–16 (7th Cir. 2002). We will affirm such determinations unless the court’s ruling lacks any basis in law or fact or clearly appears to be arbitrary. Kuttner, 819 F.3d at 974.

Here, Helping Hand chose to ignore the remaining defendants despite the court’s repeated determination that it could not proceed with those depositions until it formulated a plan to address those other defendants so as to ensure a manageable discovery procedure. Its lack of diligence in responding to the court’s concerns and addressing that issue left it with the consequence of an inability to take those depositions prior to the disposition of the summary judgment motion. The district court did not abuse its discretion in its case management decision that had been clearly communicated to Helping Hand and its holding Helping Hand to its own choices, particularly where the only action requested of Helping Hand was to inform the court as to its plan to address the prosecution of the case against the remaining defendants.  Accordingly, the decision of the district court is AFFIRMED.

Affirmed

Full Text

Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.