                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1


                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                                Submitted October 9, 2019 *
                                Decided November 6, 2019

                                          Before

                            DIANE P. WOOD, Chief Judge

                            WILLIAM J. BAUER, Circuit Judge

                            DAVID F. HAMILTON, Circuit Judge

No. 19-2041

RICKY R. FRANKLIN,                              Appeal from the United States District
     Plaintiff-Appellant,                       Court for the Northern District of
                                                Illinois, Eastern Division.
      v.
                                                No. 16 C 9660
EXPRESS TEXT, LLC,
     Defendant-Appellee.                        Robert W. Gettleman,
                                                Judge.

                                        ORDER

       In this successive appeal we revisit Ricky Franklin’s claim that Express Text
violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, by sending
him 115 unwanted text messages between July 2015 and September 2016. Under the
statute, Express Text can be liable only if it made any call or sent any text message to
Franklin using an automatic telephone dialing system. See 47 U.S.C. § 227(b)(1)(A); Blow

      *This successive appeal has been submitted to the original panel under
Operating Procedure 6(b). We have agreed to decide this case without oral argument
because the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 19-2041                                                                             Page 2

v. Bijora, Inc., 855 F.3d 793, 798 (7th Cir. 2017) (explaining that the statute applies to text
messages). Throughout this litigation, Express Text has maintained that it merely offers
its users an online platform that disseminates text messages and does not itself send
messages. (Express Text also maintains that its platform is not an automatic telephone
dialing system. The district court, however, did not rely on this point for either grant of
summary judgment, and we need not address the issue to resolve this case.) In August
2017, the district court granted summary judgment for Express Text, concluding that it
was not liable under the TCPA because it did not send or initiate anything; instead, one
of its users, WorldWin Events, sent the offending texts to Franklin.

       On Franklin’s appeal from that ruling, we vacated and remanded so that
“Franklin [could] seek reasonable discovery.” Franklin v. Express Text, LLC, 727 F. App’x
853, 856 (7th Cir. 2018). In doing so, we determined that the district court had abused its
discretion in denying Franklin’s Rule 56(d) motion. Id. The district court, in granting the
2017 summary judgment, had relied almost exclusively on the affidavit of Express
Text’s Chief Operating Officer. Franklin was unable to respond to that evidence
“without an opportunity to ask how Express Text’s system works or inquire into the
relationship between WorldWin and Express Text.” Id. at 855. We noted:

       Any agreements between WorldWin and Express Text, including
       whatever user agreement or terms of service Express Text has with its
       customers, might show that Express Text is responsible for the text
       messages received by Franklin, or they might not. And without an
       understanding of how Express Text’s internet-to-phone system works
       (including who owns the written text transposed into a text message by
       Express Text’s system), we do not see how Franklin could have contested
       who “sent” him the text messages. Certainly Franklin would not be
       entitled to review “any and all” third-party agreements, but his actual
       discovery requests can be tailored more narrowly than the categories of
       information he describes.

Id. at 855–56. Our remand was designed to give Franklin an opportunity to fill those
evidentiary gaps, through reasonable discovery designed to determine whether Express
Text was the “sender/initiator” of the text messages. Id. at 856.

      On remand, the district court set the discovery cutoff for August 21, 2018.
Franklin, however, ignored the second chance we gave him. He failed entirely to
conduct any discovery: he filed no document requests, no interrogatories, no
No. 19-2041                                                                        Page 3

subpoenas, and no notices of deposition. Instead, he conducted “independent research”
and found (he said) that WorldWin Events was not properly registered in Georgia even
though it was allegedly a Georgia entity. His research also indicated that there was no
company doing business as “WorldWin Events” in Georgia. Franklin argued that
WorldWin Events therefore did not exist and could not be liable for sending the text
messages.

        Based on the lack of discovery, Express Text filed another motion for summary
judgment, which the district court granted. The district court concluded that Express
Text had again “submitted admissible evidence to show that it is not the sender of the
texts in question.” The court noted that Franklin failed to “explain how the lack of state
registration by [Express Text]’s customer could possibly result in [Express Text] being
the sender of the alleged text messages or how [Express Text]’s platform could
constitute an automated telephone dialing system in violation of the TCPA.”

        We now affirm the district court’s summary judgment. We remanded this case
strictly so that Franklin could seek discovery about the content of any agreements
between Express Text and WorldWin Events and develop evidence about how the
internet-to-phone system works. Franklin chose to forgo this opportunity. As a result,
he has not shown that a rational trier of fact could find that Express Text was the sender
of the text messages for purposes of the TCPA. As the district court recognized, the lack
of a registered entity named WorldWin Events does not show one way or the other that
Express Text sent or initiated the messages.

       The judgment of the district court is AFFIRMED.
