Williams v. Defenders, Inc.

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

JACQUELINE R. WILLIAMS AND )

TOMMY WILLIAMS, )

)

Plaintiffs, )

)

v. ) No. 2:19-cv-02567-SMH/cgc

)

DEFENDERS INC. AND ADT, LLC, )

)

Defendants. )

)

ORDER

Plaintiffs Jacqueline and Tommy Williams (the “Williams”)

sue Defenders Inc. (“Defenders”) and ADT, LLC (“ADT”) over a

failed home security installation. Plaintiffs allege unjust

enrichment, fraud, negligence, gross negligence, and violations

of the Tennessee Consumer Protection Act of 1977 (“TCPA”), Tenn.

Code Ann. §§ 47-18-101, et seq. (D.E. 1–1) Before the Court

are three motions: (1) Plaintiffs’ Motion to Reopen Discovery

(D.E. 81); (2) Defendants’ Motion to Disallow Usage of

Examination Under Oath of James Spears (D.E. 80); and (3)

Defendants’ Motion for Partial Summary Judgment. (D.E. 64) For

the following reasons, Plaintiffs’ Motion to Reopen Discovery is

DENIED, Defendants’ Motion to Disallow Usage of Examination Under

Oath of James Spears is GRANTED, and Defendants’ Motion for

Partial Summary Judgment is GRANTED.

I. Background

The following facts are undisputed unless stated otherwise.

ADT is a limited liability company that provides home

security services. (D.E. 1) Its sole member, the ADT Security

Corporation, is incorporated in Delaware with its principal place

of business in Florida. (Id.) Defenders also provides home

security services and is incorporated in Delaware with its

principal place of business in Indiana. (D.E 1-1) Defenders is

an authorized dealer for ADT and often installs security systems

for ADT customers. (D.E. 64-1)

In early February 2019, the Williams saw an ADT

advertisement offering a $27.99 monthly rate. (D.E. 1-1)

Interested, the Williams scheduled an installation appointment

for their Memphis home. (Id.) On February 5, 2019, Defenders

sent its employee John Stout to the Williams’ home to install

the ADT system. (Id.) When Stout arrived, he reviewed the

Williams’ home and recommended certain security customizations

to Jacqueline Williams. (D.E. 75-1) Jacqueline Williams agreed

with some of the recommendations and made her own requests.

(Id.) Throughout the installation, Jacqueline Williams insisted

on paying no more than $27.99, the advertised price. (Id.)

At some point during the installation, Stout decided to

install a system that used a cell phone instead of a landline.

(D.E. 75-1) The parties dispute whether Stout and Jacqueline

Williams agreed on the cellular plan. (Id.) The cellular plan

increased the monthly rate to $52.99. (Id.) Company policy

required Stout to explain this price change, but he forgot to

tell Williams. (D.E. 84-1)

Around midnight, Stout finished working, but the job

remained incomplete. (D.E. 75-1) Several window sensors did

not function. (Id.) Before leaving, Stout gave Jacqueline

Williams a tablet to sign the contract electronically. Stout

left with a signed contract, but the parties dispute who signed

it. Plaintiffs initially claimed that Jacqueline Williams

refused to sign the contract after discovering the monthly price

would be $52.99, and that Stout forged her signature. (D.E. 1-

1) Stout says Jacqueline Williams signed the contract and only

realized the adjusted rate afterward. (D.E. 64-1) In their

response to summary judgment, Plaintiffs claim that Stout did

not forge Williams’ signature, but induced her to sign by

“tricking her into tapping the tablet.” (D.E. 75-1)

Days later, Stout returned to complete the installation.

(D.E. 1-1) Jacqueline Williams still insisted on paying $27.99

a month. Stout explained that he would have to install a new

security panel for the Williams to receive the $27.99 monthly

rate. (Id.) That would require placing the panel in a different

room and leaving a hole where the original panel had been. (Id.)

Jacqueline Williams declined the offer and called Defenders.

(Id.) Defenders insisted it had a valid contract that it would

enforce. (Id.) Jacqueline Williams asserted that any signature

of hers was forged. (Id.) ADT charged the Williams roughly

$450. (Id.) Jacqueline Williams contacted ADT and Defenders

multiple times, maintaining that no contract existed, and

demanding the return of the $450. (Id.) ADT eventually reversed

or voided all charges to the Williams’ bank account and cancelled

the service. (D.E. 75-1)

On July 26, 2019, Plaintiffs filed suit in the Circuit Court

of Tennessee for the Thirtieth Judicial District at Memphis,

alleging: (1) unjust enrichment, (2) fraud, (3) negligence, (4)

gross negligence, and (5) violations of the TCPA. (D.E. 1-1)

They seek actual, compensatory, and punitive damages in excess

of $280,000. (D.E. 18-1) Defendants removed.

On October 25, 2019, the Scheduling Order set the discovery

deadline on June 22, 2020. (D.E. 15) On June 16, 2020, the

First Amended Scheduling Order extended discovery until

September 22, 2020. (D.E. 42) On September 29, 2020, the Second

Amended Scheduling Order set the discovery deadline on January

15, 2021). (D.E. 53) After that, neither party moved to extend

discovery. On November 4, 2020, Plaintiffs subpoenaed the

Florida and Tennessee Attorney General’s Offices, requesting all

complaints filed against Defendants. (D.E. 81) On December 18,

2020, the Florida Attorney General’s Office responded with more

than 1800 pages of documents. (Id.) The Tennessee Attorney

General’s Office was not aware of the subpoena until March 12,

2021 because of a change of address that affected service. (Id.)

From the Florida Attorney General’s Office’s response,

Plaintiffs identified James Spears as a potential witness with

relevant information. (Id.) On February 10, 2021, after the

discovery deadline had passed, Plaintiffs examined Spears under

oath. Defendants were not present.

On March 29, 2021, Defendants moved for partial summary

judgment. (D.E. 64) Plaintiffs’ response relies, in part, on

Spears’ examination under oath. (D.E. 75) Defendants then moved

to exclude Spears’ examination under Federal Rule of Civil

Procedure 37(c). (D.E. 80) Plaintiffs, in their reply, demand

sanctions against Defendants for failing to identify Spears

pursuant to Federal Rule 26. (D.E. 82) On the same day,

Plaintiffs moved to reopen discovery. (D.E. 81) Defendants

oppose reopening discovery.

II. Jurisdiction and Choice of Law

The Court has diversity jurisdiction under 28 U.S.C. § 1332.

A federal district court has original jurisdiction of all civil

actions between citizens of different states “where the matter

in controversy exceeds the sum or value of $75,000, exclusive of

interest and costs.” 28 U.S.C. § 1332(a)(1).

Plaintiffs are Tennessee citizens. (D.E. 1–1) Defendant

Defenders is an Indiana corporation with its principal place of

business in Indiana. (Id.) Defendant ADT is a limited liability

company. For the purpose of diversity, unincorporated entities,

including limited liability companies, have the citizenship of

each partner or member. Delay v. Rosenthal Collins Group, LLC,

585 F.3d 1003, 1005 (6th Cir. 2009). ADT’s sole member is a

corporation incorporated in Delaware with its principal place of

business in Florida. (Id.) There is complete diversity.

Defendants’ Notice of Removal shows correspondence in which

Plaintiffs’ counsel sought up to $250,000 in damages. (D.E. 1–

4) Plaintiffs’ Rule 26(a) disclosures show damages of more than

$280,000. (D.E. 18-1) The amount in controversy is satisfied.

The Court has diversity jurisdiction.

State substantive law applies to state law claims in federal

court. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80 (1938).

When there is no dispute that a certain state’s substantive law

applies, the court need not conduct a choice-of-law analysis sua

sponte. See GBJ Corp. v. E. Ohio Paving Co., 139 F.3d 1080, 1085

(6th Cir. 1998). Throughout the case, the parties have assumed

that Tennessee substantive law governs Plaintiffs’ claims. (See

D.E. 64-1; D.E. 75) The Court will apply Tennessee substantive

law.

III. Standard of Review

A. The Motion to Reopen Discovery

Under Rule of Civil Procedure 16 affords a trial judge broad

discretion to curtail discovery. W. Am. Ins. Co. v. Potts, 1990

WL 104034, at *2 (6th Cir. July 25, 1990); see Chrysler Corp.

v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981) (finding

it “well established that the scope of discovery is within the

sound discretion of the trial court”). A scheduling order may

be modified only for good cause and with the judge’s consent.

Fed. R. Civ. P. 16(b)(4). “In the absence of some showing why

an extension is warranted, the scheduling order shall control.”

6A Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure: Civil § 1522.1 (2d ed. 1990).

B. The Motion to Disallow Usage of Examination of James

Spears

Under Federal Rule of Civil Procedure 26(a)(1)(A), a party

must provide the name, address, and telephone number of each

individual likely to have discoverable information that the

disclosing party may use to support its claims or defenses.

Fed. R. Civ. P. 26(a)(1)(A). A party must supplement or

correct its responses if the party learns the responses are

incomplete or incorrect in some material respect. Fed. R. Civ.

P. 26(e)(1). If a party’s disclosures do not comport with

Rules 26(a) or 26(e), the party may not use the relevant

information as evidence in a motion, unless the failure was

substantially justified or harmless. Fed. R. Civ. P. 37(c)(1).

“The potentially sanctioned party . . . bears the burden of

proving harmlessness or substantial justification.” EQT Prod.

Co. v. Phillips, 767 F. App’x 626, 634 (6th Cir. 2019).

C. The Demand for Sanctions

If a party fails to provide information or identify a

witness as required by Rule 26 (a) or (e), a court may impose

sanctions against the party, unless the failure was

substantially justified or harmless. Fed. R. Civ. P. 37(c)(1).

Sanctions can include payment of reasonable expenses, including

attorney’s fees, caused by the failure. Id. District courts

have broad discretion in deciding whether to award sanctions,

see Pressey v. Patterson, 898 F.2d 1018, 1021 (5th Cir. 1990),

and need not explain a decision not to award sanctions.

Runfola & Assocs. v. Spectrum Reporting II, 88 F.3d 368, 375

(6th Cir. 1996).

D. The Motion for Partial Summary Judgment

Under Federal Rule of Civil Procedure 56, a court shall

grant a party’s motion for summary judgment “if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The moving party can meet this burden by showing

the court that the nonmoving party, having had sufficient

opportunity for discovery, has no evidence to support an

essential element of its case. See Fed. R. Civ. P. 56(c)(1);

Asbury v. Teodosio, 412 F. App’x 786, 791 (6th Cir. 2011) (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

When confronted with a properly-supported motion for

summary judgment, the nonmoving party must set forth specific

facts showing that there is a genuine dispute for trial. See

Fed. R. Civ. P. 56(c). “A genuine dispute exists when the

plaintiff presents significant probative evidence on which a

reasonable jury could return a verdict for her.” EEOC v. Ford

Motor Co., 782 F.3d 753, 760 (6th Cir. 2015) (quotation marks

omitted). The nonmoving party must do more than simply “show

that there is some metaphysical doubt as to the material facts.”

Adcor Indus., Inc. v. Bevcorp, LLC, 252 F. App’x 55, 61 (6th

Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986)).

A party may not oppose a properly supported summary judgment

motion by mere reliance on the pleadings. See Beckett v. Ford,

384 F. App’x 435, 443 (6th Cir. 2010) (citing Celotex Corp., 477

U.S. at 324). Instead, the nonmoving party must adduce concrete

evidence on which a reasonable juror could return a verdict in

its favor. Stalbosky v. Belew, 205 F.3d 890, 895 (6th Cir.

2000); see Fed. R. Civ. P. 56(c)(1). The Court does not have

the duty to search the record for such evidence. See Fed. R.

Civ. P. 56(c)(3); InterRoyal Corp. v. Sponseller, 889 F.2d 108,

111 (6th Cir. 1989).

Although summary judgment must be used carefully, it “is an

integral part of the Federal Rules as a whole, which are designed

to secure the just, speedy, and inexpensive determination of

every action[,] rather than a disfavored procedural shortcut.”

FDIC v. Jeff Miller Stables, 573 F.3d 289, 294 (6th Cir. 2009)

(quotation marks and citations omitted).

IV. Analysis

A. The Motion to Reopen Discovery

Courts consider five factors when determining whether to

reopen discovery: (1) whether the movant has demonstrated good

cause for reopening discovery; (2) whether the need for

additional discovery was precipitated by the neglect of the

movant or by the party opposing the motion to reopen; (3) the

specificity of the discovery that is sought; (4) the relevance

of the discovery being sought; and (5) whether the party opposing

the motion to reopen discovery will be prejudiced. FedEx Corp.

v. U.S., 2011 WL 2023297, at *3 (W.D. Tenn. March 28, 2011).

The burden is on the moving party to justify reopening discovery.

See W. Am. Ins. Co., 1990 WL 104034, at *2. Plaintiffs fail to

justify reopening discovery.

1. There is No Good Cause to Reopen Discovery

Plaintiffs seek to reopen discovery to depose additional

witnesses, including Spears, whom they examined after the

discovery deadline, and Lawrence Wade Johnson. (D.E. 81)

Johnson is a “Tennessee resident who lodged a near identical

complaint against ADT Security Services” about the installation

of a security system. (See id.) Plaintiffs do not specify any

“additional witnesses,” other than Spears and Johnson.

Plaintiffs argue that the Court should reopen discovery because

“equity demands” it. (D.E. 91) Plaintiffs do not explain why

it took so long to subpoena the Tennessee and Florida Attorney’s

General’s Offices. They do not explain why they did not move to

extend discovery. Plaintiffs have not shown good cause to reopen

discovery.

2. Plaintiffs’ Delay Precipitated the Need to Reopen

Discovery

The Scheduling Order set the discovery deadline on June 22,

2020. (D.E. 15) The First Amended Scheduling Order delayed the

discovery deadline until September 22, 2020. (D.E. 42) The

Second Amended Scheduling Order set the discovery deadline on

January 15, 2021. (D.E. 53) Yet, Plaintiffs waited until

November 4, 2020, to subpoena the Tennessee and Florida Attorney

General’s Offices. (D.E. 81) Because of that delay, Plaintiffs

discovered Spears and Johnson’s complaints after the deadline.

Plaintiffs maintain that a “change in address” affected service

of the subpoena on the Tennessee Attorney General’s Office,

delaying its response. (Id.) The change in address occurred

nearly two years ago. (D.E. 81-3) Plaintiffs could have avoided

delay if they had promptly issued the subpoenas. Plaintiffs do

not explain the delay. Plaintiffs’ delay in issuing their

subpoenas precipitated the need to reopen discovery. See FedEx

Corp., 2011 WL 2023297, at *3 (party waited until two months

before discovery deadline to issue subpoenas).

3. The Motion Lacks Specificity

In their motion, Plaintiffs seek to reopen discovery to

“identify, contact, and, as necessary, depose any additional

witnesses with information relevant to the present proceeding,

including Mr. James Spears and Mr. Lawrence Wade Johnson.” (D.E.

81) As framed, Plaintiffs’ request lacks “defined parameters or

limitations.” FedEx Corp., 2011 WL 2023297 at, *3. Plaintiffs’

discovery request lacks specificity.

4. The Discovery Sought is Not Relevant

Plaintiffs believe Spears and Johnson’s potential testimony

is relevant to Plaintiffs’ claims of fraud, gross negligence,

TCPA violations, and punitive damages. (D.E. 91) Johnson is

another ADT customer with a bad experience. (See D.E. 81) Spears

was a Florida-based Defenders sales representative in 2018.

(D.E. 75) Neither witness is relevant to the present case.

5. Reopening Discovery Would Prejudice Defendants

Plaintiffs claim reopening discovery would not prejudice

Defendants because Plaintiffs made Defendants aware of Spears’

potential testimony. (D.E. 91) Plaintiffs also argue that

reopening discovery would allow Defendants to cross-examine

Spears and Johnson. (Id.)

Plaintiffs’ arguments are not persuasive. Defendants filed

their Motion for Partial Summary Judgment believing discovery

was complete. In their response to the Motion, Plaintiffs use

Spears’ examination as evidence, knowing the examination was

conducted after discovery had ended. Plaintiffs told Defendants

of the Spears examination after the fact. Reopening discovery

to allow the parties to depose Spears and Johnson would be

costly, time-consuming, unfair, and unproductive. See FedEx

Corp., 2011 WL 2023297 at, *3 (denying motion to reopen

discovery because unfair to nonmoving party). Defendants would

be prejudiced by reopening discovery.

All five factors counsel against reopening discovery.

Plaintiffs have not satisfied their burden. The Motion to Reopen

Discovery is DENIED.

B. The Motion to Disallow Usage of Examination of James

Spears

The Sixth Circuit considers five factors to determine

whether failure to comply with Rule 26 was substantially

justified or harmless:

(1) the surprise to the party against whom the

evidence would be offered; (2) the ability of that

party to cure the surprise; (3) the extent to which

allowing the evidence would disrupt the trial; (4)

the importance of the evidence; and (5) the

nondisclosing party's explanation for its failure to

disclose the evidence.

Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015).

The Howe factors support Defendants’ Motion. A party is

surprised when an opposing party fails to make a disclosure by

the required deadline. See Abrams v. Nucor Steel Marion, Inc.,

694 F. App’x 974, 982 (6th Cir. 2017); Gregory v. Raven, 2020

WL 4194524, at *3 (W.D. Tenn. July 21, 2020). Plaintiffs did

not list Spears in their Rule 26(a) disclosures by the required

deadline. (D.E. 80) Defendants cannot cure the surprise because

discovery is complete. See Gregory, 2020 WL 4194524, at *3

(finding party could not cure surprise after time to depose

witness had passed). Considering Spears’ examination would

disrupt the case. Doing so would require, inter alia, that the

Court postpone its partial summary judgment order to allow

Defendants to cross-examine a witness 1000 miles away. Spears’

examination is irrelevant to the Williams’ case and is not

important. Plaintiffs give no reason for omitting Spears in

their Rule 26 disclosures. Plaintiffs examined Spears knowing

discovery had ended and included his examination in their

response. All five factors weigh in favor of excluding Spears’

examination. The Court will not consider it in deciding

Defendants’ Motion for Partial Summary Judgment. Defendants’

Motion is GRANTED.

C. Plaintiffs’ Demand for Sanctions

Plaintiffs allege that Defendants violated Rules 26(a) and

(e) and seek sanctions under Rule 37. (D.E. 82-1) Plaintiffs

contend that Defendants violated Rule 26(e) by failing to

identify Spears or his complaint. (D.E. 82-1) Rule 26(e)

requires a party who makes a disclosure under Rule 26(a), or who

has responded to an interrogatory, request for production, or

request for admission to correct any disclosure in a timely

manner if the party learns that in some material respect the

disclosure or response is incomplete or incorrect. Fed. R. Civ.

P. 26(e).

Defendants had no reason to believe their disclosures were

incomplete or incorrect. Defendants were not obligated to

disclose the identity of Spears under Rule 26(a) because

Defendants had no intention of using Spears to support their

defense. See Fed. R. Civ. P. Rule 26 Committee Notes on Rules—

2000 Amendment (“A party is no longer obligated to disclose

witnesses or documents, whether favorable or unfavorable, that

it does not intend to use.”).

Defendants were not required to supplement their discovery

responses to include Spears’ complaint. In their discovery

requests, Plaintiffs sought all documents relating to every

consumer complaint Defendants had received since January 1, 2018.

(D.E. 82) Defendants objected to disclosure, questioning the

relevancy of the information. (D.E. 88) Plaintiffs never filed

a motion to compel. Defendants did not violate Rule 26.

Plaintiffs’ demand for sanctions is DENIED.

D. The Motion for Partial Summary Judgment

In their Motion, Defendants seek Summary Judgment on

Plaintiffs’ claims of unjust enrichment, negligence, gross

negligence, fraud, and punitive damages, and seek to limit actual

and compensatory damages to damages recoverable under Tennessee

law. For the following reasons, Defendants’ Motion is GRANTED.

1. Unjust Enrichment

“[A] plaintiff is deemed to have abandoned a claim when a

plaintiff fails to address it in response to a motion for summary

judgment.” Brown v. VHS of Mich., Inc., 545 F. App’x 368,372

(6th Cir. 2013). Plaintiffs assert a claim for unjust

enrichment. (D.E. 1-1) Defendants moved for Partial Summary

Judgment on that claim. (D.E. 64) Plaintiffs did not address

the claim in their response. (D.E. 75) Therefore, Plaintiffs

have abandoned their unjust enrichment claim. Defendants’ Motion

on the unjust enrichment claim is GRANTED.

2. Negligence

To establish a prima facie claim of negligence, a plaintiff

must establish the following essential elements: (1) a duty of

care owed by defendant to plaintiff; (2) conduct below the

applicable standard of care that amounts to a breach of that

duty; (3) an injury or loss; (4) cause in fact; and (5)

proximate, or legal, cause. Giggers v. Memphis Hous. Auth., 277

S.W.3d 359, 364 (Tenn. 2009). At issue here is what, if any,

duty Defendants owed Plaintiffs. In their complaint, Plaintiffs

allege that Defendants owed a duty of workmanlike conduct. (D.E.

1-1) (“Defendants had a duty to Plaintiffs to properly replace

the security system in Plaintiffs’ home in a workmanlike

manner.”) When a contract exists and “is silent regarding

the standard of conduct that applies to the contract’s

performance, the courts will imply a standard of workmanlike

conduct.” Northwest Tenn. Motorsports Park, LLC v. Tenn.

Asphalt Co., 410 S.W.3d 810, 817 (Tenn. Ct. App. 2011).

Defendants argue that no contract exists between Plaintiffs and

Defendants, and thus that Defendants owed no workmanlike duty to

Plaintiffs. (D.E. 64-1) Defendants argue that, even if a

contract exists, the Court should grant summary judgment on

Plaintiffs’ negligence claim because contract, not tort, law

would govern. (Id.) Plaintiffs assert that, even if no contract

exists, Defendants owed Plaintiffs a duty of reasonable care.

(D.E. 75)

Whether a Contract Exists

“In order for an enforceable contract to exist, there must

be a ‘meeting of the minds between the parties with respect to

the essential terms of the agreement.’” Conner v. Hardee’s Food

Sys., Inc., 65 F. App’x 19, 22 (6th Cir. 2003) (quoting Simonton

v. Huff, 60 S.W.3d 820, 826 (Tenn. Ct. App. 2000)).

In their complaint, Plaintiffs allege that Jacqueline

Williams insisted on paying only $27.99 per month. (D.E. 1-1)

They further allege that, once Jacqueline Williams had discovered

the adjusted rate, she refused to sign the contract, and that

Stout forged her signature. (Id.) In their response to summary

judgment, Plaintiffs claim Stout “fraudulently induced Ms.

Williams to sign the contract by tricking her into tapping the

tablet.” (D.E. 75-1) Both parties agree that Jacqueline Williams

made clear that she would only purchase the ADT system at a rate

of $27.99, that she did not know the system Stout installed would

cost $52.99, and that, after realizing the price increase, she

refused to pay. These undisputed facts demonstrate that there

was no meeting of the minds between the Williams and Defendants.

In fact, Plaintiffs’ unjust enrichment claim argues as much.

(D.E. 1-1) (“[T]here is not now, nor has there ever been any

signed contract or meeting of the minds between Plaintiffs and

Defendants.”) No contract between Plaintiffs and Defendants

exists. Defendants did not owe a duty of workmanlike conduct to

Plaintiffs.

A Duty of Reasonable Care

In their response to Defendants’ Motion for Partial Summary

Judgment, Plaintiffs allege for the first time that Defendants

owed a duty of reasonable care independent of any contract that

might have existed. (D.E. 75) Plaintiffs may not expand claims

or assert new theories in response to summary judgment. See,

e.g., Desparois v. Perrysburg Exempted Village Sch. Dist., 455

F. App’x 659, 666 (6th Cir. 2012); Bridgeport Music, Inc. v. WM

Music Corp., 508 F.3d 394, 400 (6th Cir. 2007); Tucker v. Union

Needletrades, Indus. & Textile Emp., 407 F.3d 784, 788 (6th Cir.

2005). The duty of reasonable care theory of negligence differs

from the workmanlike standard Plaintiffs allege in their

complaint. (D.E. 75) Because it is a new theory, Plaintiffs

may not raise the duty of reasonable care standard in response

to Defendants’ Motion for Partial Summary Judgment.

Defendants’ Motion on the negligence claim is GRANTED.

3. Gross Negligence

To prevail on a claim of gross negligence in Tennessee, a

plaintiff must first demonstrate ordinary negligence. Thrasher

v. Riverbend Stables, 2008 WL 2165194, at *5 (Tenn. Ct. App. May

21, 2008). Then, the plaintiff must prove that the act was “done

with utter unconcern for the safety of others, or one done with

such a reckless disregard for the rights of others that a

conscious indifference to consequences is implied in law.” Ruff

v. Memphis Light, Gas & Water Div., 619 S.W.2d 526, 528 (Tenn.

Ct. App. 1981) (quoting Odum v. Haynes, 494 S.W.2d 795, 807

(Tenn. Ct. App. 1972)). As described above, Plaintiffs fail to

state a claim for negligence. Therefore, Plaintiffs’ gross

negligence claim must be dismissed. See Menuskin v. Williams,

145 F.3d 755, 767 (6th Cir. 1998) (dismissing gross negligence

claim because plaintiff could not prove negligence).

Defendants’ Motion on the gross negligence claim is GRANTED.

4. Fraud

Plaintiffs allege fraudulent misrepresentation against

Defendants. (D.E. 1-1) “To prove fraudulent misrepresentation,

a plaintiff must show that there was an intentional

misrepresentation of a material fact made with knowledge of its

falsity or reckless disregard for its truth.” Allied Sound,

Inc. v. Neely, 58 S.W.3d 119, 122 (Tenn. Ct. App. 2001).

Plaintiffs must also prove that they reasonably relied on the

misrepresentation to their detriment. Id.

Plaintiffs argue that Defendants did not disclose material

pricing information that would have influenced the Williams’

decision. (D.E. 75) Plaintiffs chose Defendants’ security system

after seeing their advertisement. (D.E. 1) The flier advertised

a $27.99 monthly rate. (Id.) Plaintiffs did not realize that

the price was subject to a home assessment that could affect the

price.

Defenders’ employee Stout assessed Plaintiffs’ home. After

his assessment, Stout made recommendations to Jacqueline

Williams. Stout installed a system that used a cell phone

instead of a landline. The recommendations and the cell phone

increased the monthly rate to $52.99. Stout did not tell

Jacqueline Williams about the price increase. She did not

realize the new price until later that night. Plaintiffs admit

that Stout’s failure to tell Williams about the price was a

mistake, not an intentional act. (See D.E. 75) (“[Stout] even

admitted repeatedly that not disclosing the price term in

question was . . . mere oversight on his part.”) There is no

evidence that Defendants intentionally misrepresented the price

to Plaintiffs. Defendants’ Motion on the fraud claim is GRANTED.

5. Punitive Damages

Punitive damages are appropriate if a defendant acts

intentionally, fraudulently, maliciously, or recklessly. Hodges

v. S.C. Toof & Co., 883 S.W.2d 896, 901 (Tenn. 1992). “Punitive

damages are reserved for only the most ‘egregious of wrongs’ .

. . for conduct that was so reprehensible that it must be both

punished and deterred.” Duran v. Hyundai Motor Am., Inc., 271

S.W.3d 178, 206-07 (Tenn. Ct. App. 2008).

Plaintiffs argue for punitive damages because Defendants

“engaged in negligent behavior of a reckless sort.” (D.E. 75)

Punitive damages are not appropriate for negligence claims. See

Hodges, 883 S.W.2d at 901. Defendants did not act recklessly.

“A person acts recklessly when the person is aware of, but

consciously disregards, a substantial and unjustifiable risk of

such a nature that its disregard constitutes a gross deviation

from the standard of care that an ordinary person would exercise

under all the circumstances.” Whalen v. Bourgeois, 2014 WL

2949500, at *15 (Tenn. Ct. App. July 27, 2014). Plaintiffs argue

that Stout “committed to installing a system he had no experience

with, failed to follow basic steps set out by company policy,

spent hours troubleshooting avoidable problems” and, as a result,

“Plaintiffs were left with a barely functional alarm system under

no active monitoring”. (D.E. 75) Plaintiffs offer no evidence

that Defendants or Stout consciously disregarded a substantial

and unjustifiable risk. Defendants did not act recklessly.

Punitive damages are not appropriate. Defendants’ Motion on the

punitive damages claim is GRANTED.

6. Actual Damages and Compensatory Damages

Plaintiffs claim $1,450 in actual damages, but seek more

than $280,000 in compensatory damages. (D.E. 81-1) Plaintiffs

claim $100,000 in compensatory damages for fraud, $100,000 in

compensatory damages for negligence, and $80,000 in compensatory

damages for violations of the TCPA. (Id.) In their Motion for

Partial Summary Judgment, Defendants seek to limit Plaintiffs’

damages to actual damages recoverable under Tennessee law. (D.E.

64) The Court has dismissed Plaintiffs’ negligence and fraud

claims. The Court also dismisses Plaintiffs’ claim for

compensatory damages for TCPA violations.

As noted above, a plaintiff abandons its claim when it fails

to address it in response to summary judgment. Brown, 545 F.

App’x, at 372. In their Motion for Partial Summary Judgment,

Defendants argue that Plaintiffs could recover a maximum of

$1,290 in damages for TCPA violations. (D.E. 64-1) Defendants

contend that Plaintiffs have shown no basis for compensatory

damages. (Id.) In response, Plaintiffs spend four pages arguing

the merits of their TCPA claims. (D.E. 75) Plaintiffs do not

address compensatory damages or explain why they are appropriate.

By failing to address compensatory damages, Plaintiffs have

abandoned their claim. Summary Judgment is GRANTED on

compensatory damages related to the alleged TCPA violations.

V. Conclusion

Plaintiffs’ Motion to Reopen Discovery is DENIED.

Defendants’ Motion to Disallow Usage of Examination Under Oath

of James Spears is GRANTED. Defendants’ Motion for Partial

Summary Judgment is GRANTED.

So ordered this 20th day of October, 2021.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE