United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs' First Motion
for Partial Summary Judgment on the Issue of Damages [ECF No.
239], Plaintiffs' Second Motion for Partial Summary
Judgment on Defendants' Newly Pleaded Affirmative Defense
of Consent [ECF No. 243], Plaintiffs' Third Motion for
Partial Summary Judgment on the Issue of Telemarketing [ECF
No. 246], Plaintiffs' Fourth Motion for Partial Summary
Judgment on Defendants' Newly Pled Defenses of Due Care,
Prior Established Business Relationship, and Comparative
Fault [ECF No. 249], Defendant Dr. James R. Leininger's
Motion for Summary Judgment [ECF No. 265], and Defendant
Courage 2012, LLC's Motion for Summary Judgment [ECF No.
lawsuit originated in the Circuit Court of St. Louis County,
Missouri when Plaintiffs Ron and Dorit Golan
(“Plaintiffs”) filed a petition against
Defendants Veritas Entertainment, LLC; Veritas Marketing
Group, LLC; Freeeats.com doing business as ccAdvertising; AIC
Communications, LLC, doing business as
ccAdvertising; Gabriel S. Joseph, III; Stephen Wayne
Griffin; Mission City Management, Incorporated; Courage 2012,
LLC; Dr. James R. Leininger; SixDi, Incorporated; Bob Brewer;
and Michael Huckabee (“Defendants”) alleging
Defendants violated the TCPA, by making unsolicited
pre-recorded calls to residential telephone lines. [ECF No.
1]. On January 15, 2014, Mission City Management Incorporated
(“Mission City”) removed the case to this Court
pursuant to 28 U.S.C. §§ 1331, 1332, 1441, 1446,
and 1453. [ECF NO. 1]. Defendants Michael Huckabee
(“Huckabee”), Bob Brewer (“Brewer”),
SixDi, Incorporated (“SixDi”), and Mission City
were dismissed from the case. The remaining Defendants and
Plaintiffs filed six motions for summary judgment which the
Court now addresses. The undisputed facts are as follows.
James R. Leininger is a medical doctor and is engaged in
several medical businesses. [ECF No. 272 ¶ 2-3]; [ECF
No. 288 ¶ 2-3]. He has also engaged in several movies
promoting traditional American values. [ECF No. 272 ¶
5]; [ECF No. 288 ¶ 5]. Mission City is a Texas
corporation that provides advisory services to various
companies, and Dr. Leininger is the sole shareholder of
Mission City. [ECF No. 272 ¶ 7-9]; [ECF No. 288 ¶
7-9]. Enthuse Entertainment is a Texas corporation that
invests in entertainment related businesses. [ECF No. 272
¶ 21]; [ECF No. 288 ¶ 21]. Dr. Leininger is the
sole owner of Enthuse Entertainment. [ECF No. 272 ¶ 22];
[ECF No. 288 ¶ 22].
January 24, 2012, Dr. Leininger watched the movie Last Ounce
of Courage (“the Movie”). [ECF No. 272 ¶
23]; [EFC No. 288 ¶ 23]. Following the screening, he
considered investing in the movie through Enthuse
Entertainment. [ECF No. 288 ¶ 23]. Enthuse
Entertainment invested approximately $10 million in the Movie
through Courage 2012, LLC (“Courage 2012”) in
order to take an equity stake in the movie. [ECF No. 288
Marketing Group, LLC (“Veritas Marketing”), a
Tennessee limited liability company, was created to manage,
market, and promote media, including the Movie. [ECF No. 272
¶ 25-26]; [ECF No. 288 ¶ 25-26]. Steve Wayne
Griffin (“Griffin”) has been president of Veritas
Marketing Group since 2012. [ECF No. 272 ¶ 27]; [ECF No.
288 ¶ 27]. Courage 2012, a Texas limited liability
company formed on May 23, 2012, owns the Movie. [ECF No. 272
¶ 31-33]; [ECF No. 288 ¶ 31-33]. Courage 2012 is
owned by three entities; Veritas Entertainment, LLC
(“Veritas Entertainment”) and Eastern Gate,
together, own 33 1/3% of Courage 2012, and Enthuse
Entertainment owns the remaining 66 2/3%. [ECF No. 272 ¶
34]; [ECF No. 288 ¶ 34].
24, 2012, Courage 2012 entered a marketing agreement with
Veritas Marketing to market and distribute the Movie. [ECF
No. 288-12]. Veritas Marketing had the exclusive right
to negotiate and select all third parties necessary to assist
in the marketing of the Movie. [ECF No. 288-12, at section
Dr. Leininger did not sign or negotiate the marketing
agreement. [ECF No. 272 ¶ 40]; [ECF No. 288 ¶ 40].
9, 2012, Gabriel S. Joseph, III
(“Joseph”) emailed Griffin a document describing
ccAdvertising's Opt-in Channel program and on July 12,
2012, Joseph and Griffin met. [ECF No. 272 ¶ 50-51];
[ECF No. 288 ¶ 50-51]. At the meeting, Joseph made a
pitch to promote the Movie. [ECF No. 272 ¶ 52]; [ECF No.
288 ¶ 52]. Dr. Leininger did not attend. [ECF No. 272
¶ 53]; [ECF No. 288 ¶ 53]. At this meeting, Joseph
showed Griffin a PowerPoint presentation including a slide
demonstrating how ccAdvertising allegedly complied with the
TCPA. [ECF No. 274-46]. On August 2, 2012, Joseph shared his
PowerPoint presentation with others involved in the telephone
campaign. [ECF No. 272 ¶ 55]; [ECF No. 288 ¶ 55].
The recipients included Brewer of SixDi who was hired by
Veritas Marketing Group to assist with ccAdvertising's
marketing campaign efforts for the Movie. [ECF No. 272 ¶
56]; [ECF No. 288 ¶ 56]. Dr. Leininger was not sent the
PowerPoint presentation and never saw it. [ECF No. 272 ¶
59]; [ECF No. 288 ¶ 59].
around August 7, 2012, acting on behalf of Veritas Marketing
Group, Griffin engaged Joseph and his company, ccAdvertising,
to conduct the telephone campaign at issue. [ECF No. 288
¶ 60]. On August 24, 2012, Brewer provided Joseph
with zip codes of theater locations where the Movie was
playing. [ECF No. 272 ¶ 75]; [ECF No. 288 ¶ 75].
April 10 or 11, 2012, Dr. Leininger and Griffin went to
Huckabee's home in Florida where Huckabee screened the
Movie. [EFC No. 272 ¶ 42]; [EFC No. 288 ¶ 42]. At
the end of August 2012, Joseph sent the script to Huckabee to
record. [ECF No. 275-67]. On August 29, 2012, Joseph
emailed the draft script to Griffin for the first time. Dr.
Leininger was carbon copied on the email sent to Griffin.
[ECF No. 272 ¶ 96]; [ECF No. 288 ¶ 96]. Griffin
responded saying he was pleased with the script. [EFC No. 272
¶ 100]; [EFC No. 288 ¶ 100]. Dr. Leininger did not
respond to the email on which he was copied. [ECF No. 288
¶ 100, 102].
September 4, 2012, Joseph emailed the script to Brewer and
Griffin, stating Huckabee was going to record the script and
to “Please review the script and get me any comments
ASAP.” [ECF No. 272 ¶ 105]; [ECF No. 288 ¶
105]. Neither of them provided him with any comments or input
on the script. [ECF No. 272 ¶ 106]; [ECF No. 288 ¶
106]. On September 5, 2012, Brewer and Griffin were
designated to receive test calls of Huckabee's recording.
[ECF No. 272 ¶ 108]; [ECF No. 288 ¶ 108]. Although
Griffin did not listen to the test call, he told Brewer he
approved of the call and Brewer then relayed this message to
Joseph. [ECF No. 272 ¶ 113]; [ECF No. 288 ¶ 113].
On September 6, 2012, ccAdvertising invoiced Veritas
Entertainment $248, 500 as the total balance owed for the
call campaign. [ECF No. 272 ¶ 80]; [ECF No. 288 ¶
80]. By October 6, 2012, Joseph confirmed to Griffin Veritas
Marketing had completed final payment for the call campaign.
[ECF No. 272 ¶ 81]; [ECF No. 288 ¶ 81].
September 6, 2012, Joseph called Dr. Leininger and asked him
to listen to a sample of Huckabee's recording of the
script. [ECF No. 288 ¶ 114, 116]. Joseph asked
Dr. Leininger for his opinion of the call, and Dr. Leininger
said he “thought its way too long” and boring,
and people would hang up and not listen. [ECF No. 288 ¶
September 6, 2012, Joseph emailed Brewer and Griffin, stating
he had spoken with Dr. Leininger about the telephone
campaign. Joseph said in his email Dr. Leininger “asked
if we could go from Segment 2 to Segment 5.” [ECF No.
272 ¶ 122]; [ECF No. 288 ¶ 122]. Dr. Leininger
never received the final version of the script, and was never
offered the opportunity to listen to the final version of the
telephone campaign call. [ECF No. 288 ¶
127]. In addition to Dr. Leininger, Griffin
and Brewer did not listen to Joseph's version of the
script edited after September 6, 2012. [ECF No. 288 ¶
conducted the telephone campaign from September 9-15, 2012.
[ECF No. 275-78]. ccAdvertising called 2, 870, 334 parties
who did not participate in the campaign, and called 372, 159
parties who did participate in the campaign survey. [ECF No.
209-3].Homeowners who did not answer the phone
or answer at least two questions of the survey did not hear
any mention of the Movie. [ECF No. 349 ¶ 8]. A total of
234, 208 call recipientstriggered the third question of the
survey, which invited a recipient to answer “yes”
to hear more information about the Movie. [ECF No. 349 ¶
9]. People who did not answer the phone or answer at least
three questions of the survey did not hear any information
relating to when the Movie opened in theaters, the
Movie's website address, or the plot of the Movie. [ECF
No. 349 ¶ 10]. The voicemails Plaintiffs received do not
identify or otherwise reference the Movie. [ECF No. 288
¶ 133]. No version of the script or voicemails
identified Dr. Leininger, Courage 2012, or Mission City to
call recipients. [ECF No. 272 ¶ 132]; [ECF No. 288
and ccAdvertising determined who would receive the calls and
how many times a call recipient would be called. [ECF No. 272
¶ 143-44]; [ECF No. 288 ¶ 143-44]. ccAdvertising
possessed the phone numbers to use for the campaign and did
not obtain them from any other Defendant. [ECF No. 272 ¶
145]; [ECF No. 288 ¶ 145]. Homeowners did not provide
their numbers to Defendants. [ECF No. 248 ¶ 4]; [ECF No.
315 ¶ 4]. ccAdvertising purchased a licensing agreement
whereby ccAdvertising paid $50, 000 per year to Axiom in
exchange for a right to access phone records. [ECF No.
209-3]. On September 10 and September 12, 2012, ccAdvertising
called Plaintiffs' residential number. On both dates, a
voicemail was left on Plaintiffs' answering machine. [ECF
No. 272 ¶ 149]; [ECF No. 288 ¶ 149].
sent the telephone campaign results and progress of calls to
Brewer and Griffin. [ECF No. 272 ¶ 151]; [ECF No. 288
¶ 151]. Griffin never reviewed this data. [ECF No. 272
¶ 152]; [ECF No. 288 ¶ 152]. As of October 20,
2016, Ron and Dorit Golan did not know Dr. Leininger. [ECF
No. 272 ¶ 156-58]; [ECF No. 288 ¶ 156-58].
following facts were asserted by Plaintiffs or Defendants and
were controverted by the opposing party. The Court finds
these facts to be material and in dispute.
Leininger did not hire Joseph or his company ccAdvertising,
and Courage 2012 did not hire Joseph or his company
ccAdvertising. [EFC No. 272 ¶ 61-62]; [EFC No. 288
¶ 61-62]. It was Joseph's suggestion alone to use
Huckabee to record the script. [EFC No. 272 ¶ 85]; [EFC
No. 288 ¶ 85]. Dr. Leininger did not recommend Joseph
use Huckabee nor did he ask Huckabee to be the voice of the
telephone campaign. [EFC No. 272 ¶ 86]; [EFC No. 288
¶ 86]. Huckabee did not contact Dr. Leininger
to advise him he had agreed to be the voice of the telephone
campaign. [EFC No. 272 ¶ 88]; [EFC No. 288 ¶
88]. Joseph made the decision to skip
segments after hearing Dr. Leininger's opinion about the
call. [EFC No. 272 ¶ 124]; [EFC No. 288 ¶ 124]. Dr.
Leininger did not suggest skipping from Segment 2 to Segment
5. [EFC No. 272 ¶ 123]; [EFC No. 288 ¶
shall grant a motion for summary judgment only if the moving
party shows “there is no genuine dispute as to any
material fact and that the movant is entitled to a judgment
as a matter of law.” Fed.R.Civ.P. 56(a); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). By
definition, material facts “might affect the outcome of
the suit under the governing law, ” and a genuine
dispute of material fact is one “such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). If the non-moving party has failed to “make a
showing sufficient to establish the existence of an element
essential to that party's case, . . . there can be
‘no genuine issue as to any material fact, ' since
a complete failure of proof concerning an essential element
of the non-moving party's case necessarily renders all
other facts immaterial.” Celotex, 477 U.S. at
moving party bears the initial burden of proof in
establishing “the non-existence of any genuine issue of
fact that is material to a judgment in his favor.”
City of Mt. Pleasant, Iowa v. Associated Elec. Co-op.,
Inc., 838 F.2d 268, 273 (8th Cir. 1988). If the moving
party meets this initial burden, the non-moving party must
then set forth affirmative evidence and specific facts
demonstrating a genuine dispute on the specific issue.
Anderson, 477 U.S. at 250. When the burden shifts,
the non-moving party may not rest on the allegations in its
pleadings, but, by affidavit and other evidence, must set
forth specific facts showing a genuine dispute of material
fact exists. Fed.R.Civ.P. 56(c)(1); Stone Motor Co. v.
Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002).
The non-moving party must demonstrate sufficient favorable
evidence that could enable a jury to return a verdict for it.
Anderson, 477 U.S. at 249. “If the non-moving
party fails to produce such evidence, summary judgment is
proper.” Olson v. Pennzoil Co., 943 F.2d 881,
883 (8th Cir. 1991).
ruling on a motion for summary judgment, the Court may not
“weigh the evidence in the summary judgment record,
decide credibility questions, or determine the truth of any
factual issue.” Kampouris v. St. Louis Symphony
Soc., 210 F.3d 845, 847 (8th Cir. 2000). The Court
instead “perform[s] only a gatekeeper function of
determining whether there is evidence in the summary judgment
record generating a genuine issue of material fact for trial
on each essential element of a claim.” Id. The
Court must view the facts and all reasonable inferences in
the light most favorable to the nonmoving party. Reed v.
City of St. Charles, 561 F.3d 788, 790 (8th Cir. 2009).
and Defendants FreeEats.com, AIC Communications, Joseph,
Griffin, Veritas Marketing, Courage 2012, and Dr. Leininger
(hereinafter “Defendants”) filed six motions for
summary judgment which raise issues concerning damages,
consent to the telephone calls, whether the calls are
telemarketing, joint and several liability, and the ...