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Hodgin v. UTC Fire & Sec. Ams. Corp.

United States Court of Appeals for the Fourth Circuit

January 24, 2018, Argued; March 14, 2018, Decided

No. 17-1222


 [*246]  DUNCAN, Circuit Judge:

Plaintiffs-Appellants sued UTC Fire & Security Americas Corporation, Inc., and Honeywell International, Inc., under the Telephone Consumer Protection Act (the "TCPA"), 47 U.S.C. § 227. Although Plaintiffs did not allege that UTC and Honeywell directly violated the TCPA, they claimed that both companies were vicariously liable for illegal calls made by telemarketers promoting UTC and Honeywell products. UTC and Honeywell separately moved for summary judgment before the end of discovery. Plaintiffs opposed the motions and moved, under Federal Rule of Civil Procedure 56(d), to postpone the district court's ruling until discovery closed. The district court denied Plaintiffs' Rule 56(d) motion and granted UTC and Honeywell summary judgment.

We affirm the district court's denial of the Rule 56(d) motion because Plaintiffs failed to show that they did not have an opportunity to discover specific evidence that was essential to their opposition to summary judgment. We also affirm the court's grant of summary judgment because Plaintiffs failed to proffer more than a scintilla of evidence to support the conclusion that UTC and Honeywell were vicariously liable for the [**3]  telemarketers' alleged TCPA violations.

Because the facts pertaining to UTC and Honeywell are different, we discuss them separately. We begin with UTC.

During the relevant period, UTC manufactured home-security systems. It sold the systems to distributors, which resold them to approximately 28,000 retailers. Once UTC sold systems to a distributor, the distributor took full title to the product. Accordingly, UTC did not receive any direct proceeds from a product's resale to a retailer or consumer.

Versatile Marketing Solutions, Inc., ("VMS") was one of the retailers that purchased UTC's home-security systems from a distributor. VMS sold the systems directly to consumers as part of a security package that included a subscription to monitoring services. It used telemarketing to sell these packages.

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885 F.3d 243 *; 2018 U.S. App. LEXIS 6310 **; 100 Fed. R. Serv. 3d (Callaghan) 202; 2018 WL 1308605

JANET HODGIN; MICHAEL HODGIN, individually and on behalf of all others similarly situated; DIANNA MEY, individually and on behalf of a class of all persons and entities similarly situated; PHILIP CHARVAT, individually and on behalf of a class of all persons and entities similarly situated, Plaintiffs — Appellants, and JAMES G. HOUGH, individually and on behalf of all others similarly situated; KERRY O'SHEA, on behalf of himself, and all others similarly situated; GEORGE CAIN, Individually and On Behalf of All Others Similarly Situated; MERRILL PRIMACK; STEWART MCCAW; NICHOLAS SHREDERS, on behalf of plaintiff and a class; JONATHAN MRAUNAC; VINCENT BRIZGYS; CRAIG CUNNINGHAM; KENNETH MOSER; BILL GARCIA; BRYAN ANTHONY REO; ANTHONY CHERTER; BRUCE RORTY; EDITH BOWLER; KENNETH CLARK; JAMES GILES; JASON BENNETT; SANDRA FAIRLEY; SCOTT DOLEMBA, on behalf of plaintiff and a class; ALLEN BEAVER; DAKOTA DALTON; DIANE ELDER; MICHELLE WAKELEY; KEITH FINKLEA; TODD C. BANK; NEWTON VAUGHN, an individual; STEWART N. ABRAMSON; LAWRENCE TARIZZO, individually and on behalf of all others similary situated; DARREN R. NEWHART; BRANDON FRAZER; YVETTE CORRALEZ-ESTRADA-DIAZ; JOHN GERACI; SHANE MEYERS; MATTHEW BARGER; JEFFERY WAGY, Plaintiffs, v. UTC FIRE & SECURITY AMERICAS CORP., INC.; HONEYWELL INTERNATIONAL, INCORPORATED, Defendants — Appellees, and VERSATILE MARKETING SOLUTIONS, INC., d/b/a VMS Alarms, d/b/a VMS Alliance Security, d/b/a Alliance Home Protection; LISA HADDAD, d/b/a CCA Services LLC, d/b/a, d/b/a; DOES 1-10; HOME SECURITY SOLUTIONS, INC; JOHN AND JANE DOES 1-10; BRIAN FABIANO; RYAN J. NEWCOMER; DOES 1-25; 2 GIG TECHNOLOGY; JASJIT, a/k/a Jay Gotra; SECURE 1 SYSTEMS; MIKE MAVARRO; UTC FIRE AND AMERICA'S CORPORATION; KATHY MCDONALD, a/k/a Kathy Mardaresco; THE ALTITUDE GROUP, LLC, d/b/a Core Home Security; KEVIN BRODY; TRAN CONSULTING GROUP, LLC; UNITED TECHNOLOGIES CORPORATION; MONITRONICS INTERNATIONAL, INC.; ALLIANCE SECURITY, INC., d/b/a AH Security, Inc, formerly doing business as Versatile Marketing Solutions, Inc., d/b/a VMS Alarms; ALLIANCE SECURITY LLC, a Delaware limited liability company; ISI ALARMS NC INC., a North Carolina corporation; KEVIN KLINK; JAYSON WALLER; JASJIT GOTRA, a/k/a Jay Gotra, individually and as an Officer of Versatile Marketing Solutions, Inc.; ALLIANCE SECURITY; JASJIT GOTRA, individually and as an officer of Versatile Marketing Solutions, Inc.; VERSATILE MARKETING SOLUTIONS, INC., d/b/a VMS Alarms, d/b/a VMS, d/b/a Alliance Security, d/b/a Alliance Home Protection, a California corporation, Defendants, COMPLIANCEPOINT, INC., Party-in-Interest,CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; NATIONAL ASSOCIATION OF MANUFACTURERS; SECURITY INDUSTRY ASSOCIATION, Amici Supporting Appellees.

Prior History:  [**1] Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. (1:13-md-02493-JPB-JES). John Preston Bailey, District Judge.

In re Monitronics Int'l, Inc., 223 F. Supp. 3d 514, 2016 U.S. Dist. LEXIS 177105 (N.D. W. Va., Dec. 22, 2016)

Disposition: AFFIRMED.


telemarketing, summary judgment, products, district court, discovery, depositions, practices, ratification, dealer, alleged violation, home-security, complaints, material fact, summary-judgment, declaration, retailers, genuine dispute, sale agreement, prerecorded, misconduct, violations, benefits, motions, numbers, reasons, rebates, receive complaints, vicariously liable, consolidated, allegations

Civil Procedure, Summary Judgment, Opposing Materials, Motions for Additional Discovery, Judgments, Motions for Summary Judgment, Appeals, Summary Judgment Review, Standards of Review, Antitrust & Trade Law, Consumer Protection, Telemarketing, Business & Corporate Compliance, Communications Law, Federal Acts, Telephone Consumer Protection Act, Business & Corporate Law, Agency Relationships, Ratification, Proof, Standards of Review, De Novo Review, Entitlement as Matter of Law, Evidentiary Considerations, Entitlement as Matter of Law, Genuine Disputes