finding the plaintiffs had an implied private right of action when they were intended beneficiaries of the statute, there was no “compelling indication” of legislative intent, and the statute had no mechanism for governmental enforcement
How later courts described this case
- finding the plaintiffs had an implied private right of action when they were intended beneficiaries of the statute, there was no “compelling indication” of legislative intent, and the statute had no mechanism for governmental enforcement
- finding implied private right of action and reversing district court’s grant of motion to dismiss on claim for violation of state 911 statute
- holding that a private right of action exists under the ECD Law
- “The 911 Law created municipal corporations for each county, i.e., Emergency Communications Districts (‘Districts’), to run the 911 programs, specifically including the call centers that receive and route the 911 emergency calls to the proper emergency service.”
Written by the judges who cited it.
The opinion
CONCURRING IN PART AND DISSENTING IN PART
KAREN NELSON MOORE, Circuit Judge,
concurring in part and dissenting in part.
I concur with the majority opinion that there is an implied right of action under the 911 Law and that the Districts’ 911 Law and TFCA claims survive summary judgment. However, I write separately to dissent from section II.B of the majority opinion.
The root of my dissent is the axiom, acknowledged by the majority, that “the plaintiff is the master of the complaint and may proceed on its preferred cause of action.” See Majority Op. at 532; accord Caterpillar Inc. v. Williams, 482 U.S. 386, 392 , 107 S.Ct. 2425 , 96 L.Ed.2d 318 (1987). Where I branch off from the majority is the application of this axiom. I believe that it is up to the Districts, not us, to decide whether they “need,” Majority Op. at 532, count two of their complaint, breach of fiduciary duty, R. 61 (2d Am. Compl. ¶¶ 112-21) (Page ID #1503-05). The district court, finding no fiduciary relationship among the Districts and BellSouth, dismissed count two. Hamilton Cty. Emergency Commc’ns Dist. v. BellSouth Telecomms., LLC, 154 F.Supp.3d 666, 692 (E.D. Tenn. 2016). The Districts appealed the district court’s judgment, and we have jurisdiction pursuant to 28 U.S.C. § 1291 . We ought to give them an answer.
Regarding that answer, I believe that there is a genuine issue of material fact on whether BellSouth breached its fiduciary duty to the Districts. Although the 911 Law does not expressly state that telecommunications providers like BellSouth are agents or fiduciaries of the Districts, agency can be implied under Tennessee law. See Gordon v. Greenview Hosp., Inc., 300 S.W.3d 635, 653 (Tenn. 2009). Whether a principal-agent relationship exists “hinges on the right to control the agent’s actions, and, ultimately, the fact of actual control over the agent.” Id. (citation omitted). In consideration of this standard, the 911 Law conveys to the Districts considerable control over BellSouth; the statute empowers the Districts to set (1) the rate that BellSouth charges its customers, Tenn. Code Ann. § I-Se-K^aXDCA), 1 and (2) the date on which BellSouth must begin to bill its customers, id. at § 7-86-108(e)(l). The fiduciary question in this case is analogous to Edwin B. Raskin Co. v. Johnson, in which a city hired a management company to run a golf course. No. 01-A-01-9708-CH-00392, 1998 WL 242605 , at *1 (Tenn. Ct. App. May 15, 1998). In finding a fiduciary relationship, the Johnson court noted that the management company was “hired to operate the City’s golf course” and that “The City retains control over [the management’s] operation, exercising that control first through the City Finance Committee, and then through the Golf Course Commission,” which was created “to formulate policies, rules, and regulations, to set rates and fees, and to provide close supervision for the golf course.” Id. at *3 . Similarly, the Districts “set rates and fees” in order to “provide close supervision” over emergency communications. See id.; Tenn. Code Ann. §§ 7-86-102 (d), 106. Therefore, by the terms of the 911 Law, I *541 believe that a fiduciary relationship exists among the Districts and BellSouth.
The question then becomes whether BellSouth breached its duties under that relationship, as the Districts allege in count two. “An agent is under an obligation to make full and complete disclosure of facts that will benefit his principal and the relationship is treated in the same general manner and with virtually the same strictness as that of trustee and beneficiary.” Marshall v. Sevier Cty., 639 S.W.2d 440, 446 (Tenn. Ct. App. 1982). The Districts have put forth evidence from which a reasonable juror could conclude that BellSouth did not make full and complete disclosure of facts that would benefit the Districts. See R. 271-17 (Shaffer Dep. at 133) (Page ID #14234) (“Like right now I could not tell you ... how many lines this company has got. They may be paying Bell for one line. They could be paying Bell for five lines, and Bell’s paying me for one. No way I would know.”); R. 271-18 (Stuermer Dep. at 135) (Page ID #14245) (“[W]e didn’t have access to the information to determine what was going on. So we ... had to trust the vendors to give us that information and we worked off that information.”); R. 271-19 (Deford Dep. at 81-82) (Page ID #14255-56) (“[T]he only information we would have been able to obtain would have been through BellSouth AT&T employees. And they didn’t discuss this type of thing or they won’t discuss it with you.”); R. 271-20 (Coker Dep. at 165) (Page ID #14263) (“When people have called and tried to get information, I do not believe they’ve got any answers.”). Therefore, I would reverse the district court’s judgment with respect to count two and remand for further proceedings on that count as well. I concur with the remainder of the majority opinion.
. BellSouth argues that because the Districts cannot charge more than $0.65 for residential customers and $2 for business customers without submitting the charge to a referendum vote or to the county legislature, see Tenn. Code Ann. § 7-86-108 (a)(2)(A), their level of control is minimal. See Appellee's Br. at 31. While this is certainly a constraint, it does not alter the power dynamic between the Districts and BellSouth. The point is the Districts' position of power relative to BellSouth, not their absolute power and control.