# Williams v. Defenders, Inc.

> District Court, W.D. Tennessee · October 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10440765

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** October 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10440765

## How later opinions describe it (automated extraction)

- finding it “well established that the scope of discovery is within the sound discretion of the trial court”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10440765. Public record. Not legal advice.