United States District Court, E.D. Michigan, Southern Division
Kevin A. Gary, Plaintiff,
TrueBlue, Inc., Defendant.
ELIZABETH A. STAFFORD UNITED STATES MAGISTRATE JUDGE
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT  AND GRANTING DEFENDANT'S MOTION TO COMPEL
DEPOSITION TESTIMONY OF PLAINTIFF
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE
February 21, 2017, Plaintiff Kevin A. Gary filed suit against
Defendant TrueBlue, Inc., d/b/a People Ready, Inc., d/b/a
Labor Ready, Inc., alleging that Defendant used an automatic
telephone dialing system (“ATDS”) to send him
thousands of text messages without his consent in negligent
or willful and knowing violation of the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227.
Dkt. No. 1, pg. 2 (Pg. ID 2).
filed a summary judgment motion on April 14, 2018, more than
a month before the May 21, 2018 discovery cutoff date. Dkt.
No. 20. Defendant moved to extend the time to respond to
Plaintiff's summary judgment motion, citing the need to
depose Plaintiff. Dkt. No. 25, pg. 2 (Pg. ID 246).
Notwithstanding its Motion to Extend Response Time, Defendant
responded to Plaintiff's summary judgment motion on May
7, 2018. Dkt. No. 30. And on May 8, 2018, the Court granted
Defendant's motion to extend the deadline to respond.
Dkt. No. 31.
sat for a deposition on May 11, 2018. See Dkt. No.
34, pg. 3 (Pg. ID 428). The deposition was unsatisfactory to
the Defendant, as it moved on June 6, 2018 to compel
deposition testimony from Plaintiff. See id. In that
motion, Defendant also requested attorney fees and sanctions.
See Id. On June 8, 2018, Plaintiff responded to the
motion to compel. Dkt. No. 35. As of this writing, the
Defendant has not submitted a reply in support of its motion
to compel, and the time to do so has expired.
before the Court is Plaintiff's Motion for Summary
Judgment . The motion is fully briefed. Also before the
Court is Defendant's Motion to Compel Deposition
Testimony of Plaintiff and for Attorney's Fees and
Sanctions . That motion is sufficiently briefed. The
Court heard both motions on Tuesday, July 17, 2018 at 2:00
p.m. During that hearing, the Court DENIED Plaintiff's
Motion for Summary Judgment , GRANTED Defendant's
Motion to Compel Deposition Testimony , and DENIED
Defendant's request for attorney's fees and sanctions
. In this Opinion and Order, the Court will outline its
reasoning for those decisions.
applied to join Labor Ready on July 7, 2011. Dkt. No. 30, pg.
7 (Pg. ID 311). Labor Ready, the predecessor to People Ready,
is a staffing company that connects workers with short-term
jobs. Id. at pg. 3 (Pg. ID 307). Seeking such
employment opportunities, Plaintiff completed and signed the
Labor Ready application form. Dkt. No. 30-3, pg. 1 (Pg. ID
335). The application form contained a provision entitled
“Consent for Telephone Contact.” Id. at
pg. 2 (Pg. ID 336). That provision provided “express
permission and consent” to Labor Ready to contact the
applicant at the telephone number listed on the application,
in order to alert them of potential job assignments.
addition to traditional in-person placement through its local
branches, People Ready (and before it, Labor Ready) utilizes
a text messaging platform, WorkAlert, as a method of
connecting workers with job assignments. Defendant describes
in detail the steps by which potential workers are alerted to
new jobs through WorkAlert. Dkt. No. 30-1, pgs. 3-5 (Pg. ID
329-331). Branch employees search the People Ready database
for workers in a specific geographic area with the requisite
skills for a particular job. Id. at pg. 4 (Pg. ID
330). Branch employees can refine their search using several
parameters, including whether a worker has checked in with
the branch or accepted a job within the last thirty days.
Id. Employees can manually include or exclude
specific persons from the resulting pool of potential
the desired group of workers is finalized, a branch employee
then composes a text message that will be sent to the pool.
Id. Defendant maintains that there are no
“form” or pre-written text messages for this
process; rather, an employee personally drafts each text
message. Id. The messages contain only the
information relevant to a specific employment opportunity.
See Dkt. No. 30-4. Once a message is complete, a
branch employee clicks “send” and the message is
sent to a group of potential workers. Id. Defendant
alleges that the WorkAlert system limits the total number of
people that can be texted at a single time, but the Defendant
has not specified that number. Id.
declaration in support of Defendant's Opposition to
Summary Judgment, Cindi Knutson, the Director of Platform
Solutions for TrueBlue, Inc., states that the WorkAlert
system cannot send text messages without the above-described
human direction, nor is it capable of randomly or
sequentially dialing or texting workers. Dkt. No. 30-1, pg. 5
(Pg. ID 331). Defendant also maintains that there is no
technology that could be added to the WorkAlert system that
would allow it to text groups of workers automatically or
without human intervention. Id.
asserts that the WorkAlert system has the capacity to send
text messages without human intervention and to independently
dial numbers from a set list. Dkt. No. 21, pgs. 13-14 (Pg. ID
85-86). He references occasions on which he would text the
system and receive a reply instantaneously. Id. at
pg. 8 (Pg. ID 80); see, e.g., Dkt. No. 30-4, pg. 1
(Pg. ID 337, lns. 2-3). Plaintiff claims that the WorkAlert
system dials a fixed set of numbers through the “Smart
Group” and “Fixed Group” features. Dkt. No.
33, pgs. 9-10 (Pg. ID 391-392). Smart groups allow branch
employees to save specific search parameters to easily search
for workers that fit certain criteria. Dkt. No. 33-3, pg. 2
(Pg. ID 407). Fixed groups save a specific list of workers,
and the list remains the same until manually changed. Dkt.
No. 21-9, pg. 7 (Pg. ID 209).
concedes that he signed the application which included the
“express consent” provision. Dkt. No. 33, pg. 12
(Pg. ID 394). He explains that he needed work, so he signed
the application and accepted jobs through WorkAlert when he
could. Id. Plaintiff maintains, however, that the
text messages from WorkAlert became “overburdening,
” leading him to attempt to revoke his consent. Dkt.
No. 34, pg. 26 (Pg. ID 451).
alleges that the original written consent secured through his
signature on the Labor Ready application from July 2011
expired in 2013. Dkt. No. 33, pg. 13 (Pg. ID 395). Plaintiff
also asserts that he attempted to revoke his consent in
person at local branches, by calling branches and by replying
to WorkAlert. Dkt. No. 21, pgs. 6-7 (Pg. ID 78-79). Plaintiff
provides an excerpt from the text message log between himself
and WorkAlert to show the instances where he replied to the
system, asking not to be contacted. Id. at pg. 29
(Pg. ID 134, lns. 1883-1884); see, e.g., Dkt. No.
21-5, pg. 28 (Pg. ID 133, lns. 1858, 1862). He offers a
screenshot of what appears to be his profile in the WorkAlert
system, displaying a notification that, on February 22, 2017,
he revoked his consent by changing his “Best Time to
Call” to “Do Not Contact.” Dkt. No. 21-8,
pg. 2 (Pg. ID 201).
continued to receive text messages, despite his alleged
efforts to opt out of WorkAlert. Dkt. No. 21, pg. 7 (Pg. ID
79). He states that WorkAlert sent him at least 4, 940 texts
without his consent. Dkt. No. 33, pg.14 (Pg. ID 396);
see Dkt. No. 21-5, pgs. 2-51 (Pg. ID 107-156).
disputes Plaintiff's assertions regarding revocation of
consent. Defendant points to a text message log between the
WorkAlert system and Plaintiff to highlight at least eight
occasions on which Plaintiff opted into the WorkAlert system
by texting “yes” or “start.” Dkt. No.
30, pg. 12 (Pg. ID 316); see Dkt. No. 30-4; pgs.
1-30 (Pg. ID 337-366; lns. 2, 842-46, 1, 236-37; 3, 218-19,
4, 008-09; 5, 209; 5, 232). On several of these occasions,
Plaintiff texted “start” immediately after opting
out of the WorkAlert system. Id. Defendant also
asserts that the Plaintiff manifested his consent by
accepting hundreds of job offers through WorkAlert. Dkt. No.
30, pgs. 7-11 (Pg. ID 311-315); see Dkt. No. 30-5,
pgs. 1-10 (Pg. ID 367-376).
claims that all but one of the texts sent from his phone to
the WorkAlert system with the messages “yes” or
“start” were sent, not by him, but by People
Ready's branch employees. Dkt. No. 21, pgs. 6, 9 (Pg. ID
78, 81); see Dkt. No. 34, pgs. 39, 54-55, 58 (Pg. ID
464, 479-480, 483). During his deposition, Plaintiff
vehemently maintained that when he visited local branches to
inquire about work, branch employees requested his phone and
then opted into the WorkAlert system, without his consent.
See, e.g., Dkt. No. 34, pgs. 39, 54-55 (Pg. ID 464,
479- 480). When confronted with an opt in message that was
sent after 11 p.m., Plaintiff conceded that he sent that
message, but he still attributed the other opt in messages to
branch employees. Id. at pg. 58 (Pg. ID 483).
also disputes that his acceptance of job offers through
WorkAlert is a manifestation of his consent to receive text
alerts. According to Plaintiff, he had no choice but to
accept job offers through the WorkAlert system. He needed to
work, and he claims that Defendant's employees routinely
discouraged him from inquiring about job opportunities at the
local branches, whether in person or through phone calls.
Dkt. No. 21, pg. 3 (Pg. ID 75). According to Plaintiff, he
consistently attempted to secure work through these
alternative methods, and was strongly discouraged from doing
so. Id. at pgs. 2-3 (Pg. ID 74-75). Throughout his
deposition, Plaintiff repeated that the only way to get a job
with the Defendant is through WorkAlert. See, e.g.,
Dkt. No. 34, pgs. 51, 55-56 (Pg. ID 476, 480-481).
Plaintiff notes that WorkAlert's “welcome”
messages state that the system will send sixty messages a
month to the user. Dkt. No. 33, pg. 13 (Pg. ID 395); Dkt. No.
21-7, pg. 2 (Pg. ID 198); see, e.g., Dkt. No. 30-4,
pg. 1 (Page ID 337, ln. 3). Yet Plaintiff received hundreds
of messages per month. Dkt. No. 33, pg. 13 (Pg. ID 395);
see generally Dkt. No. 30-4, pg. 1 (Pg. ID 337).
denies that its policy or employees prevent workers from
seeking employment through means other than the WorkAlert
system. Dkt. No. 30, pg. 11 (Pg. ID 315). Defendant claims
that Plaintiff continued to secure job offers, even after he
had opted out of WorkAlert (and was therefore not receiving
text notifications). Id.; see also Dkt. No.
30-5, pg. 1 (Pg. ID 367). Defendant denies sending Plaintiff
5, 600 text messages. Dkt. No. 30, pg. 12 (Pg. ID 316).
respect to damages, Plaintiff claims that the texts he
received used up the minutes in his phone plan and violated
his privacy. Dkt. No. 21, pgs. 2-3 (Pg. ID 74-75);
see Dkt. No. 21-12, pgs. 2-5 (Pg. ID 221-224). He
also alleges that, because he repeatedly revoked his consent,
Defendant's violations of the TCPA were willful and
knowing, entitling him to treble damages under the statute.
Dkt. No. 21, pg. 3 (Pg. ID 75). Defendant challenges the
evidence presented by Plaintiff with regard to his cell phone
plan as unidentifiable and impossible to authenticate or
understand. Dkt. No. 30, pgs. 2, 18 (Pg. ID 306, 322).
Rule of Civil Procedure 56(c) empowers a court to grant
summary judgment if “there is no genuine issue as to
any material fact and the moving party is entitled to
judgment as a matter of law.” Cehrs v. Ne. Ohio
Alzheimer's Research Ctr., 155 F.3d 775, 779 (6th
Cir. 1998). The evidence and all reasonable inferences must
be construed in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1968). There is a genuine
issue of material fact “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). Mere allegations or denials in the
non-movant's pleadings will not suffice, nor will a mere
scintilla of evidence which supports the non-moving party.
Id. at 248, 252. Rather, there must be evidence on
which a jury could reasonably find for the non-movant.
Id. at 252.
brought this suit asserting violations of the TCPA, and moved
for summary judgment on his claim on April 14, 2018. Dkt. No.
20. Additionally, the Defendant has moved to compel the
Plaintiff to sit for a deposition. Dkt. No. 34.
reasons that follow, the Court will deny Plaintiff's
Motion for Summary Judgment, and will grant Defendant's
Motion to Compel. Dkt. Nos. 20, 34. The Court will first
address Plaintiff's summary judgment motion.
Plaintiff's Motion for Summary Judgment 
alleges that Defendant sent thousands of text messages to his
cellular phone in violation of the TCPA, 47 U.S.C. §
227. But the Court concludes that reasonable jurors could
disagree about whether the Defendant violated the TCPA, and
therefore, the Court will deny Plaintiff's summary
state a TCPA claim for calls made to a cellular phone,
plaintiff must establish that: (1) a call was placed to a
cellular or wireless phone, (2) by using an automatic dialing
system or by leaving an artificial or pre-recorded message,
and (3) without prior consent of the recipient-plaintiff.
Duchene v. OnStar, LLC, No. 15-13337, 2016 U.S.
Dist. LEXIS 97129, at *4-5 (E.D. Mich. July 26, 2016) (citing
47 U.S.C. § 227(b)(1)(A)). The Act authorizes a private
right of action and plaintiffs may recover at least $500 in
damages for each call made (or text message sent) in
violation of the statute, and up to treble damages for each
“willful or knowing” violation. 47 U.S.C. §
alleges that the WorkAlert system qualifies as an autodialer;
that consent to contact him on his cell phone-initially
provided on his Labor Ready application-expired in 2013; that
he later attempted to revoke his consent on numerous
occasions; and that Defendant ...