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Gary v. TrueBlue, Inc.

United States District Court, E.D. Michigan, Southern Division

August 1, 2018

Kevin A. Gary, Plaintiff,
TrueBlue, Inc., Defendant.




         I. Introduction

         On 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).

         Plaintiff 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.

         Plaintiff 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.[1] 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.

         Presently before the Court is Plaintiff's Motion for Summary Judgment [20]. 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 [34]. 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 [20], GRANTED Defendant's Motion to Compel Deposition Testimony [34], and DENIED Defendant's request for attorney's fees and sanctions [34]. In this Opinion and Order, the Court will outline its reasoning for those decisions.

         II. Factual Background

         Plaintiff 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. Id.

         In 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 workers. Id.

         Once 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.

         In her 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.

         Plaintiff 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).

         Plaintiff 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).

         He 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).

         Plaintiff 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).

         Defendant 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).

         Plaintiff 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).

         Plaintiff 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).

         Finally, 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).

         Defendant 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).

         With 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).

         III. Legal Standard

         Federal 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.

         IV. Discussion

         Plaintiff 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.

         For the 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.

         A. Plaintiff's Motion for Summary Judgment [20]

         Plaintiff 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 judgment motion.

         To state a TCPA claim for calls made to a cellular phone, [2] a 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. § 227(b)(3).

         Plaintiff 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 ...

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