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,
UTC FIRE & SECURITY AMERICAS CORP., INC.; HONEYWELL INTERNATIONAL, INCORPORATED, Defendants - Appellees, 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, 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 Alarmillinois.com, d/b/a Alarmindiana.com; 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.
Argued: January 24, 2018
from the United States District Court for the Northern
District of West Virginia, at Clarksburg. John Preston
Bailey, District Judge. (1:13-md-02493-JPB-JES)
McCune Donovan, BAILEY & GLASSER, LLP, Charleston, West
Virginia, for Appellants.
Rebecca J. Wahlquist, SNELL & WILMER, LLP, Los Angeles,
California, for Appellee UTC Fire & Security Americas
Anne Mazzuchetti, KELLEY DRYE & WARREN, LLP, Parsippany,
New Jersey, for Appellee Honeywell International,
W. Barrett, Jonathan R. Marshall, J. Zak Ritchie, BAILEY
& GLASSER LLP, Charleston, West Virginia; Beth E.
Terrell, TERRELL MARSHALL LAW GROUP, PLLC, Seattle,
Washington, for Appellants.
T. Graham, KELLEY DRYE & WARREN LLP, Parsippany, New
Jersey, for Appellee Honeywell International, Incorporated.
H. Copland, STEPTOE & JOHNSON PLLC, Bridgeport, West
Virginia, for Appellee UTC Fire & Security Americas
Comerford Todd, Steven P. Lehotsky, UNITED STATES CHAMBER
LITIGATION CENTER, Washington, D.C.; Thomas R. McCarthy,
Bryan K. Weir, CONSOVOY MCCARTHY PARK PLLC, Arlington,
Virginia, for Amici Curiae.
DUNCAN, KEENAN, and, DIAZ, Circuit Judges.
DUNCAN, CIRCUIT JUDGE.
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.
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 telemarketers' alleged
the facts pertaining to UTC and Honeywell are different, we
discuss them separately. We begin with UTC.
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.
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
not have a direct purchasing relationship with UTC; it only
purchased systems from UTC's distributors. However, VMS
had a contractual relationship with UTC that allowed VMS to
use UTC's trademarks in limited ways. The contractual
relationship began in 2010 when UTC acquired GE Security,
Inc., which had entered into a "dealer agreement"
with VMS the previous year. UTC continued to honor the
agreement after the acquisition.
dealer agreement permitted VMS to hold itself out as an
"Authorized GE Security Dealer." J.A. 802. However,
the agreement prohibited VMS from using the GE Security
trademark in "its corporate or business name, or within
its telephone greeting, letterhead, stationary,
identification badges, telemarketing scripts or direct
marketing material, or promotional items." J.A. 802. The
agreement also stated that the parties did not intend
"to create an employment, agency, franchise or other
relationship." J.A. 800. Additionally, the contract
required VMS to comply with all applicable laws and
regulations. Finally, the agreement entitled VMS to rebates
if it purchased a minimum amount of GE Security products each
2011, UTC began to receive complaints about VMS's
telemarketing practices. On August 24, 2011, for example, an
individual complained that VMS had called his residence
selling GE Security products even though his number was
listed on the national Do-Not-Call Registry. And, in November
2011, UTC ...