### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 1282

H ELPING H AND C AREGIVERS

, L TD

., Plaintiff

‐ Appellant

,

v.

D ARDEN R ESTAURANTS

, I NC

., et al

., Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:14

‐ cv

‐ 10127

— Manish S. Shah

, Judge

.

____________________

A RGUED D ECEMBER 5, 2017

— D ECIDED A UGUST 14, 2018

____________________

Before W OOD

, Chief Judge

, and R OVNER and H AMILTON

,

Circuit Judges

.

R OVNER

, Circuit Judge

. Helping Hand Caregivers, Ltd.,

(“Helping Hand”) filed a suit against Darden Restaurants,

Inc., Mid Wilshire Consulting, Inc. (“Mid Wilshire”), Brian

Kang, and Greg Jones, alleging a violation of the Telephone

Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Specifi

‐ cally, Helping Hand asserted that Mid Wilshire, through

Kang and Jones, sent an unsolicited fax advertisement to2 No. 17

‐ 1282

Helping Hand on behalf of Darden. The district court grant

‐

ed Darden’s motion for summary judgment and dismissed

the claims against the remaining defendants without preju

‐

dice. Helping Hand subsequently stipulated that the dismis

‐

sals against the remaining defendants should be treated as

dismissals with prejudice, and therefore the decision was

final and appealable. Helping Hand now appeals the grant

of summary judgment to Darden, arguing that the district

court applied the wrong legal standard in granting summary

judgment and that the court erred in limiting discovery and

denying its motion under Federal Rule of Civil Procedure

56(d).

The district court relied upon the undisputed facts (in

‐ cluding facts that were not properly disputed) in its grant of

summary judgment, and we include those relevant facts as

set forth by the district court here. Brian Kang was the CEO

and sole employee of Mid Wilshire, doing business as Social

Wellness. Jones worked as an independent contractor on be

‐

half of Social Wellness, which set up “Lunch ‘n Learn” op

‐ portunities for doctors to provide wellness presentations at

companies. At those presentations, the doctors would pre

‐

order food for attendees, and on behalf of Social Wellness,

Jones contacted Darden Restaurants, Inc.—the owner of cer

‐

tain Olive Garden trademarks—to explore a strategic alli

‐

ance. Specifically, Jones sought permission from Darden to

use the Olive Garden logo in its advertising to promote So

‐

cial Wellness’s programs by offering Olive Garden food to

attendees. Jones handled all communications between Social

Wellness and Darden, and Kang never communicated with

anyone at Darden.No. 17

‐ 1282 3

A series of email and phone communications ensued be

‐

tween Jones and various persons at Darden. Initially, Jones

communicated with Kasha Momot, who was the then

‐

Director of Brand Management at Darden. Momot and Jones

exchanged emails and spoke once or twice by phone begin

‐ ning in July 2014, and Jones also communicated with Ken

Bott, the Director of Commerce Programs and Partnerships

for Darden. A month or two after the initial email with

Jones, Momot left Darden for employment elsewhere. After

Momot’s departure, Jones communicated primarily with

Bott.

A series of emails and possibly phone calls took place

beginning in early September 2014 between Jones and Bott,

in which the marketing possibilities were discussed in more

detail. In those communications, Jones proposed a market

‐ ing plan in which Social Wellness would engage in email

marketing, first by sending emails to a test group informing

people where the food was purchased for the wellness

presentations, and in that way Social Wellness could deter

‐

mine whether incorporating the Olive Garden name resulted

in a greater interest in enrollment in Social Wellness’s pro

‐

grams. Jones sent Darden a mock

‐ up email using a different

company’s logo, although no mock

‐ up of the exact email us

‐ ing an Olive Garden logo was ever proposed.

Jones also had contact with another employee of Darden,

Roberto Sanchez, at one point. Jones contacted Bott because

some doctors had problems ordering online from Olive Gar

‐

den, and Bott asked Sanchez to help Jones with the online

ordering process. Thereafter, Sanchez spoke with Jones by

phone and sent Jones an “Online Ordering Guide.”4 No. 17

‐ 1282

No advertising medium other than email was ever dis

‐

cussed in the communications regarding the potential mar

‐ keting plan between Darden and Social Wellness. Despite

that, Social Wellness engaged in a marketing effort by fax,

using the Olive Garden logo on a flyer that was created us

‐ ing Photoshop by a person who Kang and Jones found on

Craigslist. Kang and Jones obtained the Olive Garden logo

and a picture of food through Google searches and/or an

online company selling photos—not from Darden—and in

‐

cluded that logo and picture on the flyer. The flyer stated

that Social Wellness was teaming up with Olive Garden for a

“Lunch n’ Learn” and that a complimentary catered lunch

would be provided. All contact information in the flyer such

as the email address and phone number was for Social Well

‐

ness. The flyer was faxed to fax numbers that Social Well

‐

ness had obtained from a Google search and from a list pur

‐

chased from a person on Craigslist. Bott never saw the flyer

prior to its distribution, and Jones admitted that he never

discussed with Darden the possibility of sending faxes and

that only email marketing was discussed.

The marketing by fax was also inconsistent with

Darden’s practices. Darden generally does not market by

fax, nor is its practice to enter into partnerships without a

number of protections. Specifically, Darden’s practice in en

‐ tering into partnerships is to require senior management to

sign off, and to utilize written agreements including a mas

‐

ter services agreement and statement of work outlining logo

usage and business expectations, as well as a nondisclosure

agreement. Social Wellness and Darden never entered into

any contract together and did not pay each other any money.

Regarding the authorization to use the Olive Garden logo,

Bott maintains that no permission was ever given, and JonesNo. 17

‐ 1282 5

asserts only that “Bott told him Darden had ’no problem

with your telling your companies where the food is coming

from.’” Dist. Ct. Mem. Op. and Order 12

‐ 21

‐ 2016 at 5.

That faxed flyer was received by Helping Hand Caregiv

‐

ers, Ltd., on October 31, 2014, and it filed suit against

Darden, Social Wellness, Kang, and Jones on December 17,

2014, alleging that the faxed advertisement violated the

TCPA. That Act addresses in part the problem of unsolicited

fax advertisements which result in the unwanted cost to the

recipient in terms of impeding access to their fax machine for

business uses and in the cost of operation of the machine.

Darden then sent a cease

‐ and

‐ desist letter to Kang and

Social Wellness demanding that they cease using Darden’s

Olive Garden trademark. Social Wellness responded with an

email to Darden’s counsel from Kang in which he stated that

“[t]his letter is to inform you that Dardens [sic] Restaurants

& Olive Garden had nothing to do with the message that

was sent to Helping Hand Caregivers LTD. It was totally on

the Social Wellness Group just trying to offer a free lecture

on health and wellness.”

Darden subsequently sued Social Wellness and Kang for

trademark infringement, alleging that it had continued to

use the Olive Garden trademarks in faxes sent to third par

‐

ties. Social Wellness did not appear in the lawsuit, and

Darden obtained a default judgment and permanent injunc

‐

tion in the matter. The district court’s order found that, by

default, the relevant facts in the complaint were admitted

including willful infringement of the Olive Garden trade

‐

marks.6 No. 17

‐ 1282

In its TCPA action, Helping Hand served all defendants

but only Darden appeared. Social Wellness, Kang, and Jones

did not appear, and Helping Hand did not move for class

status nor did it seek to hold them in default. Helping Hand

sought numerous depositions, including from Darden em

‐ ployees Bott and Sanchez and former employee Momot. The

district court allowed the deposition of Bott, but to avoid

conducting depositions without all parties to the case, stayed

further depositions of Darden employees until Helping

Hand brought forward a plan either to bring the remaining

defendants into the case or to pursue a default judgment.

Helping Hand proceeded to depose Bott, Kang and Jones.

After those depositions, the court declined to lift the stay on

further depositions after Helping Hand indicated that it still

had no plan either to bring those defendants into the case or

to move for default judgment. Darden then moved for sum

‐

mary judgment, and in response to the motion for summary

judgment, Helping Hand filed a motion under Rule 56(d)

requesting that the stay be lifted so that it could depose

Momot and Sanchez. The court denied that stay request,

however, holding that Helping Hand failed to explain how

depositions of either person would add information that was

not available from Jones, Kang, or Bott, all of whom Helping

Hand had already deposed, and granted summary judgment

in favor of Darden against the plaintiff.

In this appeal, Helping Hand challenges the grant of

summary judgment against it on two grounds. On the mer

‐

its, it argues that the court erred in its application of agency

law in granting summary judgment. It also argues that the

court erred in refusing to lift the stay of the depositions and

in refusing to grant the Rule 56(d) motion.No. 17

‐ 1282 7

We turn then to Helping Hand’s challenge to the legal

principles applied by the district court. In granting summary

judgment to Darden, the court reasoned that Helping Hand

had failed to show that Social Wellness acted as Darden’s

agent in that it had express, implied, or apparent authority

from Darden to send faxes on its behalf. Helping Hand as

‐

serts that the court erred in relying on agency principles, and

that the language of the statute and regulation instead estab

‐

lishes that Darden can be directly liable if it benefitted from

the promotion in the advertisement regardless of whether it

authorized it.

The statute at issue provides that it is unlawful “to use

any telephone facsimile machine, computer, or other device

to send, to a telephone facsimile machine, an unsolicited ad

‐

vertisement,” unless it fell within one of the exceptions such

that the sender has an established business relationship with

the recipient, the recipient made its fax number available

through specified means, or the unsolicited advertisement

contained a notice meeting certain statutory requirements.

47 U.S.C. § 227(b)(1)(C); Bridgeview Health Care Ctr., Ltd. v.

Clark

, 816 F.3d 935, 938 (7th Cir. 2016). The regulations have

defined the “sender” as “the person or entity on whose be

‐

half a facsimile unsolicited advertisement is sent or whose

goods or services are advertised or promoted in the unsolic

‐

ited advertisement.” 47 C.F.R. § 64.1200(f)(10).

Helping Hand focuses on the language in the second

clause of the regulation—which defines a sender to include

“a person or entity

... whose goods or services are adver

‐

tised or promoted in the unsolicited advertisement.” Id

. It

argues that the provision lacks the “on whose behalf” lan

‐

guage of the first clause, and therefore imposes a direct lia

‐8 No. 17

‐ 1282

bility standard for anyone whose goods or services were

promoted in the advertisement. Under that provision, it ar

‐

gues, Darden is liable for any advertisement of Olive Garden

regardless of whether the advertisement was sent on its be

‐

half or with its authorization. Helping Hand contends that

Darden and Social Wellness entered into a “strategic alli

‐

ance” with Social Wellness whereby Darden benefitted from

the faxes sent by Social Wellness, in that Olive Garden re

‐

ceived more business following the fax, and therefore it is

liable under the second clause of the regulation. Helping

Hand points to decisions of other circuits, Palm Beach Golf

Ctr.–Boca, Inc. v. John G. Sarris, D.D.S., P.A

., 781 F.3d 1245

(11th Cir. 2015), and Siding and Insulation Co. v. Alco Vending,

Inc.

, 822 F.3d 886 (6th Cir. 2016), as consistent with its inter

‐ pretation of TCPA liability under the regulation.

In Clark

, we considered the same statute and regulation

and rejected an interpretation which would hold an entity

strictly liable if its goods or services were advertised in a fax

regardless of its authorization of such advertisement. 816

F.3d at 938. We reaffirmed that holding in Paldo Sign & Dis

‐ play Co. v. Wagener Equities, Inc.

, 825 F.3d 793, 797 (7th Cir.

2016), noting that under a strict liability approach, a compet

‐

itor could send out thousands of unsolicited facts promoting

another company’s goods or services, thereby bankrupting

that company, even though the company played no part in

sending or authorizing the faxes. Id

. We noted that

“[a]lthough the literal language of the regulation suggests

that such a result is possible,

... to be liable as a sender, a

person must have done something to advertise goods or ser

‐

vices.” Id

. Therefore, in both Clark and Wagener we held that

agency rules should be applied to determine whether the ac

‐No. 17

‐ 1282 9

tion was done on behalf of a principal. Clark

, 816 F.3d at 938;

Wagener

, 825 F.3d at 797.

Although Helping Hand argues that those holdings are

inconsistent with other circuit decisions, that argument does

not withstand scrutiny. In Palm Beach Golf Center

, the Elev

‐

enth Circuit held that a person whose services are advertised

in an unsolicited fax transmission could be held liable direct

‐ ly under the TCPA so long as the advertisement was sent

“on its behalf.“ 781 F.3d at 1254. Thus, that decision is con

‐

sistent with our recognition that liability attaches only as to

those persons and entities on whose behalf the unsolicited

fax is sent.

The Sixth Circuit’s decision in Alco Vending included lan

‐

guage interpreting the second clause of the regulation as im

‐ posing a strict liability standard, but it held that the conduct

in that case preceded the addition of that language and

therefore did not impose that standard in its case. 822 F.3d at

891–92. In a subsequent decision, however, Health One Medi

‐

cal Center, Eastpointe P.L.L.C. v. Mohawk, Inc., 889 F.3d 800

(6th Cir. 2018), the Sixth Circuit addressed a case that is fac

‐ tually analogous to this one, and rejected the strict liability

standard. In that case, Mohawk Medical, a pharmaceutical

wholesaler, sent unsolicited faxes to medical providers ad

‐ vertising its prices for various drugs. Id

. at 801. In addition to

suing Mohawk Medical, from whom it obtained a default

judgment, a medical provider sued Bristol

‐ Meyers Squibb

and Pfizer based on the theory that they had “sent” the faxes

for purposes of the TCPA because drugs that they manufac

‐

tured were among the ones for which discounted pricing

was advertised in the faxes. Id

. The Sixth Circuit looked to

the language of the statute itself which requires that a person10 No. 17

‐ 1282

“use any

... device to send, to a telephone facsimile machine,

an unsolicited advertisement.” Id .; 42 U.S.C. § 227(b)(1)(C).

The court held that by its language, therefore, the statute re

‐ quires that a defendant must “send” an advertisement, and

the common meaning of send is either to cause to be con

‐ veyed or to dispatch. Mohawk

, 889 F.3d at 801. The court held

that the defendants neither caused the faxes to be conveyed

nor did they dispatch them, and therefore could not be liable

under the statue. Id

. The court held that the regulation must

be read in the context of the statutory text it implements, and

therefore could not be read as expanding liability to a person

or entity who could not be characterized as a sender. Id

. at

802. The court held that Alco Vending could not be read as

holding that “an innocent party—like Bristol or Pfizer here—

could by some legal alchemy be held liable for having ‘sent’

the faxes.” Id

. Therefore, after Mohawk it is clear that the

Sixth Circuit interpretation of the statute is not inconsistent

with our caselaw recognizing that a defendant who has no

connection whatsoever to the sending of the fax cannot be

held liable under the TCPA.

That is the clear import of the plain language of the stat

‐

ute. Nothing in the statute allows the imposition of liability

on an entity wholly unaware of the use of its logo in a fax.

The interpretation adopted by this circuit in Clark and

Wagener is proper, and there is no reason for us to depart

from it now.

Under that standard, Helping Hand could demonstrate

liability if it produced evidence that Social Wellness had ex

‐

press actual authority to send the fax on Darden’s behalf, or

even if it had implied actual authority or apparent authority.

Clark

, 816 F.3d at 938. Helping Hand has failed to provideNo. 17

‐ 1282 11

any such evidence. At best, it provided testimony that

Darden and Jones, representing Social Wellness, engaged in

discussions regarding a joint marketing plan to involve the

sending of emails. No wri tt en or digital correspondence, or

testimony, indicates any discussion of fax advertising. In

fact, Jones—who was responsible for sending the fax adver

‐ tisement—acknowledged that there was never any discus

‐

sion with Darden of sending fax advertisements. Helping

Hand fails in its arguments to distinguish the type of mar

‐ keting discussed, but of course the type of marketing is pre

‐ cisely the issue that implicates TCPA liability. Email market

‐ ing does not run awry of the TCPA; the relevant question

here is whether there were any communications that would

indicate an authorization to send a fax advertisement, and as

to that issue Jones and Bo tt are in agreement that fax adver

‐

tisements were not discussed or approved, and no wri tt en or

testimonial evidence allows for a contrary inference.

Helping Hand asserts, however, that the lack of such ev

‐

idence is a result of the district court’s refusal to allow it to

depose two witnesses—Kasha Momot and Roberto

Sanchez—and that the court erred in refusing that discovery

and in denying its subsequent motion under Federal Rule of

Civil Procedure 56(d). Rule 56(d) provides that “[i]f a non

‐

movant shows by a ffi davit or declaration that, for speci fi ed

reasons, it cannot present facts essential to justify its opposi

‐

tion, the court may: (1) defer considering the motion or deny

it; (2) allow time to obtain a ffi davits or declarations or to

take discovery; or (3) issue any other appropriate order.” As

Helping Hand acknowledges, we review discovery decisions

of the district court only for abuse of discretion. Ku tt ner v.

Zaruba

, 819 F.3d 970, 974 (7th Cir. 2016). Moreover, “’[a] trial

judge’s decision to consider a defendant’s motion for sum

‐12 No. 17

‐ 1282

mary judgment before allowing the plainti ff to depose cer

‐

tain witnesses is a discovery ma tt er, which we review under

the abuse of discretion standard.’” Davis v. G.N. Mortg. Corp.

,

396 F.3d 869, 885 (7th Cir. 2005), quoting Grayson v. O’Neill

,

308 F.3d 808, 815–16 (7th Cir. 2002). We will a ffi rm such de

‐

terminations unless the court’s ruling lacks any basis in law

or fact or clearly appears to be arbitrary. Ku tt ner

, 819 F.3d at

974.

Both Momot and Sanchez had conversations with Jones,

although the timing and nature of their communications

render them lesser players in the discussions than Bo tt

, who

was deposed. Sanchez was consulted by Jones only to assist

in the online ordering process, and nothing in the docu

‐

ments or testimony in this case implies an involvement in

the marketing discussions. And Momot was not an employ

‐

ee of Darden for the communications with Jones which im

‐ mediately preceded the fax advertisement, as she left

Darden in early September 2014. Jones pointed only to his

discussions with Bo tt as the basis for his belief that he could

send the advertisements with the Olive Garden logo, and

both Bo tt and Jones were deposed. The contention that

Momot or Sanchez could provide relevant testimony thus

necessarily rests on the notion that Jones was provided the

authorization to engage in fax advertising but did not re

‐

member it or that he lied about it, because Jones—who sent

the fax advertisements—testi fi ed by deposition that he never

discussed fax marketing with anyone at Darden.

We have held that a district court does not abuse its dis

‐

cretion in denying additional discovery “where the request

‘was based on nothing more than mere speculation and

would amount to a fi shing expedition.’” In re Dairy FarmersNo. 17

‐ 1282 13

of America, Inc. Cheese Antitrust Litig.

, 801 F.3d 758, 766 (7th

Cir. 2015), quoting Davis

, 396 F.3d at 885. The mere hope,

without more, of revealing a “smoking gun” is insu ffi cient to

support unbounded discovery. See id

. We need not deter

‐

mine whether the discovery request in this case rested on

more than a speculative hope of evidence, however, because

the district court’s discovery determination must be upheld

on a more fundamental ground.

The district court in this case did not deny the plainti ff

the ability to take the depositions of Momot and Sanchez in

this case; the court merely required the plainti ff to proceed

on a course of action as to the other defendants before taking

such depositions. At the time of the deposition request,

Momot was no longer an employee of Darden. Sanchez was

an employee but as mentioned above was tasked with help

‐ ing with the online ordering system and there is no indica

‐

tion that he had any involvement in marketing issues. The

district court in August 2015 stayed the depositions as to

those persons because three of the four defendants in the

case had yet to appear although they had been served, and

the plainti ff was unable to tell the court what its plan was to

either bring those defendants into the action or move for de

‐

fault as to them. The court expressed the same concerns at

subsequent hearings in October 2015 and June 2016 when

Helping Hand again asked the court to lift the stay of depo

‐

sitions. Helping Hand once again was unable to inform the

court as to any plan with respect to those defendants to ei

‐

ther bring them into or remove them from the case.

Decisions by a district court to cut o ff or limit discovery

so as to avoid piecemeal litigation fall squarely within the

management province of the district court. Kallal v. CIBA14 No. 17

‐ 1282

Vision Corp

., 779 F.3d 443, 446–47 (7th Cir. 2015). Here, the

court properly was concerned with the expansion of

depositions prior to a determination as to whether the

plainti ff would proceed with its case against the remaining

defendants. Its determination to stay further depositions was

a reasonable means of streamlining discovery, encouraging

prosecution of the case, and avoiding duplication in

discovery which would occur if the defendants subsequently

appeared in the case and sought the same depositions. The

power to obtain the depositions in this case rested squarely

with Helping Hand—with the court requiring Helping Hand

only to reveal a plan either to seek default or to otherwise

proceed against the remaining defendants. It was an

insubstantial burden, but one that Helping Hand chose to

ignore. It now argues that it did not want to seek default

because it would impede its likelihood of obtaining class

status, but it did not present that justi fi cation to the district

court and did not move for class status despite having

completed depositions as to the main parties to the

marketing conversations. We consistently have upheld the

district court’s discretion to manage its cases and control

discovery, and do so here. See Citizens for Appropriate Rural

Roads v. Foxx

, 815 F.3d 1068, 1082 (7th Cir. 2016) (“[a] party

who fails to comply with deadlines related to discovery or

otherwise forestalls prosecution of their own case is not

entitled to seek additional discovery when the opposing side

moves for summary judgment.”); Olivieri v. Rodriguez

, 122

F.3d 406, 409 (7th Cir. 1997) (“[p]retrial discovery is time

consuming and expensive; it protracts and complicates

litigation; and judges are to be commended rather than

criticized for keeping tight reins on it.”). Where the failure to

secure discovery is due to a party’s own lack of diligence,No. 17

‐ 1282 15

the district court can in its discretion hold the party to the

consequences of its choice and decide the summary

judgment motion. See, e.g., Davis

, 396 F.3d at 886; Flint v.

City of Belvidere

, 791 F.3d 764, 768 (7th Cir. 2015). Here,

Helping Hand chose to ignore the remaining defendants

despite the court’s repeated determination that it could not

proceed with those depositions until it formulated a plan to

address those other defendants so as to ensure a manageable

discovery procedure. Its lack of diligence in responding to

the court’s concerns and addressing that issue left it with the

consequence of an inability to take those depositions prior to

the disposition of the summary judgment motion. The

district court did not abuse its discretion in its case

management decision that had been clearly communicated

to Helping Hand and its holding Helping Hand to its own

choices, particularly where the only action requested of

Helping Hand was to inform the court as to its plan to

address the prosecution of the case against the remaining

defendants.

Accordingly, the decision of the district court is

AFFIRMED.