REQUEST DENIED: Rare Procedural Ruling Could be Big Help to TCPA Defendant in Class Action Over Alleged Fake Lead

Law Conference of Champions IV saw Troutman Amin, LLP partner Brittany Andres take the stage and give an absolutely BRILLIANT discussion of litigation tactics in TCPA class litigation.

One often overlooked procedural nuance is the Rule 56(d) procedure for delaying a ruling on a summary judgment motion. That rule allows a non-moving party to avoid a premature ruling on summary judgment by requesting more time for discovery.

Now, in truth, the 56(d) procedure is fairly well known but what is NOT so well known is the standard by which it is to be granted or denied– it is NOT so automatic as many people think.

Take the case of Brockington v. Hume Health, 2026 WL 1284850 (E.D. Tenn. May 11, 2026).

There the defendant moved for summary judgment arguing that it had a valid facebook lead demonstring consent to the calls at issue. It asked the court to find the consent valid and rule in its favor.

The Plaintiff opposed arguing discovery had not yet closed and, as a result, the court should push off a ruling on the summary judgment motion until Plaintiff had chance to conduct discovery on the issue of whether the lead was fraudulent or not.

In assessing the motion the Court identified the rule as follows:

A party opposing summary judgment “possesses no absolute right” to additional discovery.  The party must “clearly explain” how the additional discovery will “shed further light on the issue[s]” relevant to summary judgment, “demonstrat[ing] that for specified reasons, [she] cannot present facts essential to justify [her] opposition.”

See? A Plaintiff can’t just complain the MSJ was filed early–she must specifically identify what additional discovery is needed and why the opposition cannot proceed without it.

In Brockington the court found the Plaintiff failed to meet this standard:

Plaintiff maintains that“document requests” and “depositions” are “needed to substantiate Plaintiff’s lead-fraud theory,” but she does not identify any
specific depositions or documents she needs [See generally Doc. 42-2]. Nor does she explain her lead-fraud theory and how
any depositions or documents would help support that theory [Id.]. Similarly, Plaintiff has not identified any material facts
that she hopes to uncover through additional discovery [See generally Docs. 42, 42-1, 42-1]. Plaintiff asserts that she needs
more “discovery concerning how [Defendant] obtained the phone number it attributes to” Plaintiff [See Doc. 42-2 at 1]. But
Defendant has provided this information to Plaintiff several times, from several sources, and in several formats [See Docs. 34,
35-1, 35-2, 40, 43-1]. And 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],” [see Doc. 42-2 at 1], nor has she “demonstrat[ed]”
“reasons, [she] cannot present facts essential to justify [her] opposition” to Defendant’s summary judgment Motion [Doc. 35].
See Hayes, 783 F. Supp 3d at 1034 (cleaned up). This failure dooms her request.

I know I am a nerd but these nuanced and rarely-seen procedural rulings always put a smile on my face when done right. And this one certainly was.

So there you go– keep an early MSJ in your pocket and remember Rule 56(d) is never automatic.

You know IS automatic? Requesting a copy of the 2026 Troutman Amin, LLP TCPA Annual Review, presented by Contact Center Compliance. Its free and its awesome!!!

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Chat soon.