KNOXVILLE (LN) — U.S. District Judge Katherine A. Acrytz of the Eastern District of Tennessee on Monday denied a TCPA plaintiff’s Rule 56(d) request to defer summary judgment, ruling the putative class representative failed to demonstrate how additional discovery would uncover facts essential to her opposition.

Plaintiff Sheri Butler Brockington sued Hume Health, LLC, alleging the company violated the Telephone Consumer Protection Act by making telemarketing calls to her and other putative class members listed on the National Do Not Call Registry without written consent.

Hume Health moved for summary judgment, arguing Brockington consented to receive texts after clicking a “SIGN UP” button on its website. The company submitted verified interrogatory responses and declarations from SIA AU Media, detailing the popup window that appeared on Jan. 22, 2025, when Brockington visited the site.

The popup included language stating: “By submitting this form, you consent to receive information (e.g., order updates) and/or marketing texts (e.g., cart reminders) from Hume Health including texts sent by autodialer. Consent is not a condition of purchase...”

Brockington opposed the motion, asking the court to defer ruling under Rule 56(d) because she had not yet taken discovery to confirm how her phone number was obtained as a product of lead fraud.

In a declaration, Brockington admitted she visited the website but claimed she “never gave [Defendant] permission verbally, in writing, or electronically, to send [her] telemarketing of any kind.” She asserted that while the defendant received her number, it did not obtain it from her.

Her attorney submitted a separate declaration stating that discovery concerning how the defendant obtained the phone number had not yet been obtained, and requested permission to issue document requests and take depositions before the court adjudicated the motion.

Judge Acrytz denied the request, noting that Hume Health had already provided interrogatory responses, documents, and sworn declarations explaining how it received Brockington’s contact information.

Acrytz wrote that while Brockington claimed document requests and depositions were needed to substantiate her lead-fraud theory, she did not identify any specific depositions or documents she needed, nor did she explain how such discovery would shed light on the issue.

“Plaintiff has not ‘clearly explain[ed]’ how any additional discovery she seeks will ‘shed further light on’ ‘how [Defendant] obtained the phone number it attributes to [Plaintiff],’” Acrytz wrote, citing Sixth Circuit precedent requiring a party to demonstrate why they cannot present facts essential to justify their opposition.

The judge concluded that Brockington’s failure to identify material facts she hoped to uncover or explain the need for specific discovery doomed her request.

The court will promptly adjudicate Hume Health’s motion for summary judgment.