1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 JOHN MCCURLEY and DAN Case No. 17-cv-00986-BAS-AGS 11 DEFOREST, individually and on behalf of all others similarly situated, ORDER DENYING DEFENDANT’S 12 MOTION TO DISMISS FOR LACK OF Plaintiffs, SUBJECT MATTER JURISDICTION 13 v. (ECF No. 196) 14 ROYAL SEA CRUISES, INC., 15 Defendant. 16 17 Defendant brings this Motion to Dismiss for Lack of Subject Matter Jurisdiction 18 pursuant to Rule 12(b)(1), arguing that the recent case of Barr v. American Ass’n of 19 Political Consultants, Inc., 591 U.S. __, 140 S. Ct. 2335 (July 2, 2020) (“AAPC”) renders 20 the Telephone Consumer Protection Act, 47 U.S.C. §§227 et seq. (“TCPA”) void between 21 the years of 2015 and July 2020, when AAPC was decided. (ECF No. 196.) According to 22 Defendant’s analysis, the TCPA should be held in force and effect from 1991 until 2015— 23 when an unconstitutional amendment to the Act was passed—be declared void in its 24 entirety from 2015 until AAPC was decided in July 2020, and then return to full force and 25 effect with the offending 2015 amendment severed, effective July 2020. Because the 26 certified class in this case involves those who received telephone calls in violation of the 27 TCPA between November 2016 and December 2017, Defendant argues the entire case 28 must be dismissed since there was no valid TCPA at the time the class was receiving 1 telephone calls. Plaintiffs oppose and Defendant replies. (ECF Nos. 199, 202.) The Court 2 heard argument on the issue on January 27, 2021. Based on the papers filed and the oral 3 arguments of the parties, the Court DENIES Defendant’s Motion to Dismiss. 4 I. BACKGROUND 5 Plaintiffs filed a Consolidated Class Action Complaint against Royal Seas Cruises, 6 Inc. (“Royal Seas”) alleging violations of the TCPA and California’s Invasion of Privacy 7 Act (“CIPA”), Cal. Penal Code §§630 et seq. (ECF No. 31.) With respect to the TCPA, 8 the Court certified a class of: 9 All persons within the United States who received a telephone call (1) from 10 Prospects, DM Inc. on behalf of Royal Seas Cruises Inc. (2) on said Class Member’s cellular telephone (3) made through the use of any automatic 11 telephone dialing system or an artificial or prerecorded voice, (4) between 12 November 2016 and December 2017, (5) where such calls were placed for the purpose of marketing, (6) to non-customers of Royal Seas Cruises, Inc. at the 13 time of the calls, (7) whose cellular telephone number is associated in 14 Prospects DM’s records with either diabeteshealth.info or www.yourautohealthlifeinsurance.com, and (8) whose call resulted in a 15 transfer to Royal Seas Cruises, Inc. 16 17 (ECF Nos. 87, 191.) Defendant now moves to dismiss the case for lack of subject matter 18 jurisdiction in light of the Supreme Court decision in AAPC. (ECF No. 196) 19 II. LEGAL STANDARD 20 Federal Rules of Civil Procedure, Rule 12(b)(1) allows a defendant to move to 21 dismiss a case for lack of subject matter jurisdiction. “Subject matter jurisdiction can 22 never be waived or forfeited. The objections may be resurrected at any point in the 23 litigation and a valid objection may lead a court midway through briefing to dismiss a 24 complaint in its entirety.” Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). Since this may 25 result in many months of work wasted, such a dismissal should not be taken lightly. Id; 26 see also Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) 27 (“Jurisdictional dismissals in cases premised on federal question jurisdiction are 28 exceptional.”) (quotations omitted). If a case is premised on a law that has been declared 1 void, the Court is without jurisdiction and the case should be dismissed. The Ku Klux 2 Cases, 110 U.S. 651, 654 (1884). 3 III. ANALYSIS 4 In AAPC, the Supreme Court addressed the 2015 amendment to the TCPA which 5 provided an exception for robocalls made to collect debts owed to or guaranteed by the 6 Federal Government, including robocalls made to collect many student loan and mortgage 7 debts. Justice Kavanaugh, joined by the Chief Justice and Justice Alito, concluded in Parts 8 I and II that this amendment was unconstitutional because it favored debt-collection 9 speech over political or other speech in violation of the First Amendment. 140 S. Ct. at 10 2342–48. In Part III, these three Justices concluded that the 2015 amendment should be 11 severed leaving the bulk of the TCPA intact. Id. at 2348–56. Justice Sotomayor, who 12 concurred, would have based Parts I and II on a different ground (applying intermediate 13 as opposed to strict scrutiny to the speech) but concurred in the conclusion and in Part III 14 with respect to severability. Id. at 2356–57. Justices Breyer, Ginsburg and Kagan, who 15 dissented in part, disagreed that the amendment violated the First Amendment, but 16 ultimately concurred with Part III finding the amendment severable. Id. at 2357–63. 17 Justices Gorsuch and Thomas agreed with Parts I and II that the amendment was 18 unconstitutional but dissented on the issue of severability. Id. at 2363–67. Thus, “[s]ix 19 Members of the Court . . . conclude[d] that Congress ha[d] impermissibly favored debt- 20 collection speech over political and other speech in violation of the First Amendment” and 21 “[s]even Members of the Court conclude[d] that the entire 1991 robocall restriction should 22 not be invalidated, but rather that the 2015 government-debt exception must be invalidated 23 and severed from the remainder of the statute.” Id. at 2343. 24 Justice Kavanaugh directly addressed the issue raised in Defendant’s Motion: 25 Although our decision means the end of the government-debt exception, no 26 one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt 27 exception and before the entry of final judgment by the District Court on 28 remand in this case, or such date that the lower courts determine is 1 appropriate. On the other side of the ledger, our decision today does not negate the liability of parties who made robocalls covered by the robocall 2 restriction. 3 4 AAPC, 140 S. Ct. at 2355 n.12 (emphasis added). This case does not involve the collection 5 of government debt; therefore, according to the opinion of Justice Kavanaugh, AAPC does 6 not negate Defendant’s liability and Defendant’s motion to dismiss must fail. 7 Defendant instead argues that Justice Kavanaugh’s opinion is mere dicta and should 8 be ignored by this Court. The Court disagrees. “When a fragmented Court decides a case 9 and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding 10 of the Court may be viewed as that position taken by those Members who concurred in 11 the judgments on the narrowest grounds.’” Marks v. United States, 430 U.S. 188, 193 12 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)). However, “when an 13 opinion issues for the Court, it is not only the result but also those portions of the opinion 14 necessary to that result by which we are bound.” Seminole Tribe of Florida v. Florida, 15 517 U.S. 44, 67 (1996).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 JOHN MCCURLEY and DAN Case No. 17-cv-00986-BAS-AGS 11 DEFOREST, individually and on behalf of all others similarly situated, ORDER DENYING DEFENDANT’S 12 MOTION TO DISMISS FOR LACK OF Plaintiffs, SUBJECT MATTER JURISDICTION 13 v. (ECF No. 196) 14 ROYAL SEA CRUISES, INC., 15 Defendant. 16 17 Defendant brings this Motion to Dismiss for Lack of Subject Matter Jurisdiction 18 pursuant to Rule 12(b)(1), arguing that the recent case of Barr v. American Ass’n of 19 Political Consultants, Inc., 591 U.S. __, 140 S. Ct. 2335 (July 2, 2020) (“AAPC”) renders 20 the Telephone Consumer Protection Act, 47 U.S.C. §§227 et seq. (“TCPA”) void between 21 the years of 2015 and July 2020, when AAPC was decided. (ECF No. 196.) According to 22 Defendant’s analysis, the TCPA should be held in force and effect from 1991 until 2015— 23 when an unconstitutional amendment to the Act was passed—be declared void in its 24 entirety from 2015 until AAPC was decided in July 2020, and then return to full force and 25 effect with the offending 2015 amendment severed, effective July 2020. Because the 26 certified class in this case involves those who received telephone calls in violation of the 27 TCPA between November 2016 and December 2017, Defendant argues the entire case 28 must be dismissed since there was no valid TCPA at the time the class was receiving 1 telephone calls. Plaintiffs oppose and Defendant replies. (ECF Nos. 199, 202.) The Court 2 heard argument on the issue on January 27, 2021. Based on the papers filed and the oral 3 arguments of the parties, the Court DENIES Defendant’s Motion to Dismiss. 4 I. BACKGROUND 5 Plaintiffs filed a Consolidated Class Action Complaint against Royal Seas Cruises, 6 Inc. (“Royal Seas”) alleging violations of the TCPA and California’s Invasion of Privacy 7 Act (“CIPA”), Cal. Penal Code §§630 et seq. (ECF No. 31.) With respect to the TCPA, 8 the Court certified a class of: 9 All persons within the United States who received a telephone call (1) from 10 Prospects, DM Inc. on behalf of Royal Seas Cruises Inc. (2) on said Class Member’s cellular telephone (3) made through the use of any automatic 11 telephone dialing system or an artificial or prerecorded voice, (4) between 12 November 2016 and December 2017, (5) where such calls were placed for the purpose of marketing, (6) to non-customers of Royal Seas Cruises, Inc. at the 13 time of the calls, (7) whose cellular telephone number is associated in 14 Prospects DM’s records with either diabeteshealth.info or www.yourautohealthlifeinsurance.com, and (8) whose call resulted in a 15 transfer to Royal Seas Cruises, Inc. 16 17 (ECF Nos. 87, 191.) Defendant now moves to dismiss the case for lack of subject matter 18 jurisdiction in light of the Supreme Court decision in AAPC. (ECF No. 196) 19 II. LEGAL STANDARD 20 Federal Rules of Civil Procedure, Rule 12(b)(1) allows a defendant to move to 21 dismiss a case for lack of subject matter jurisdiction. “Subject matter jurisdiction can 22 never be waived or forfeited. The objections may be resurrected at any point in the 23 litigation and a valid objection may lead a court midway through briefing to dismiss a 24 complaint in its entirety.” Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). Since this may 25 result in many months of work wasted, such a dismissal should not be taken lightly. Id; 26 see also Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) 27 (“Jurisdictional dismissals in cases premised on federal question jurisdiction are 28 exceptional.”) (quotations omitted). If a case is premised on a law that has been declared 1 void, the Court is without jurisdiction and the case should be dismissed. The Ku Klux 2 Cases, 110 U.S. 651, 654 (1884). 3 III. ANALYSIS 4 In AAPC, the Supreme Court addressed the 2015 amendment to the TCPA which 5 provided an exception for robocalls made to collect debts owed to or guaranteed by the 6 Federal Government, including robocalls made to collect many student loan and mortgage 7 debts. Justice Kavanaugh, joined by the Chief Justice and Justice Alito, concluded in Parts 8 I and II that this amendment was unconstitutional because it favored debt-collection 9 speech over political or other speech in violation of the First Amendment. 140 S. Ct. at 10 2342–48. In Part III, these three Justices concluded that the 2015 amendment should be 11 severed leaving the bulk of the TCPA intact. Id. at 2348–56. Justice Sotomayor, who 12 concurred, would have based Parts I and II on a different ground (applying intermediate 13 as opposed to strict scrutiny to the speech) but concurred in the conclusion and in Part III 14 with respect to severability. Id. at 2356–57. Justices Breyer, Ginsburg and Kagan, who 15 dissented in part, disagreed that the amendment violated the First Amendment, but 16 ultimately concurred with Part III finding the amendment severable. Id. at 2357–63. 17 Justices Gorsuch and Thomas agreed with Parts I and II that the amendment was 18 unconstitutional but dissented on the issue of severability. Id. at 2363–67. Thus, “[s]ix 19 Members of the Court . . . conclude[d] that Congress ha[d] impermissibly favored debt- 20 collection speech over political and other speech in violation of the First Amendment” and 21 “[s]even Members of the Court conclude[d] that the entire 1991 robocall restriction should 22 not be invalidated, but rather that the 2015 government-debt exception must be invalidated 23 and severed from the remainder of the statute.” Id. at 2343. 24 Justice Kavanaugh directly addressed the issue raised in Defendant’s Motion: 25 Although our decision means the end of the government-debt exception, no 26 one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt 27 exception and before the entry of final judgment by the District Court on 28 remand in this case, or such date that the lower courts determine is 1 appropriate. On the other side of the ledger, our decision today does not negate the liability of parties who made robocalls covered by the robocall 2 restriction. 3 4 AAPC, 140 S. Ct. at 2355 n.12 (emphasis added). This case does not involve the collection 5 of government debt; therefore, according to the opinion of Justice Kavanaugh, AAPC does 6 not negate Defendant’s liability and Defendant’s motion to dismiss must fail. 7 Defendant instead argues that Justice Kavanaugh’s opinion is mere dicta and should 8 be ignored by this Court. The Court disagrees. “When a fragmented Court decides a case 9 and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding 10 of the Court may be viewed as that position taken by those Members who concurred in 11 the judgments on the narrowest grounds.’” Marks v. United States, 430 U.S. 188, 193 12 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)). However, “when an 13 opinion issues for the Court, it is not only the result but also those portions of the opinion 14 necessary to that result by which we are bound.” Seminole Tribe of Florida v. Florida, 15 517 U.S. 44, 67 (1996). 16 In this case, one single rationale explains the result joined by seven of the Justices: 17 All seven agree that the 2015 amendment should be severed and the liability of parties 18 making robocalls who were not collecting a government debt is not negated. In fact, three 19 of those seven would not have held the 2015 amendment to be unconstitutional at all, and 20 they certainly agreed Defendant could be held liable. Therefore, the Court finds Justice 21 Kavanaugh’s statement is not dicta and must be followed by this Court. 22 Lest there is question, the Ninth Circuit ruling in Duguid v. Facebook, 926 F.3d 23 1146 (9th Cir. 2019), agreed that the debt collection amendment was unconstitutional but 24 severed this amendment and remanded the case to the district court for further 25 proceedings. The Court concluded “[t]he TCPA has been ‘fully operative’ for more than 26 two decades” and “[e]xcising the debt-collection exception preserves the fundamental 27 purpose of the TCPA and leaves us with the same content-neutral TCPA that we upheld.” 28 Id. at 1156–57. Notably the Court did not dismiss the case despite the fact that the 1 allegations from the named Plaintiff involved messages received from January 2014 to 2 October 2014. The Supreme Court granted certiorari solely on the issue of the definition 3 of an automatic telephone dialing system. Facebook, Inc. v. Duguid, 141 S. Ct. 193 4 (2020). 5 In reaching today’s decision, the Court disagrees with the district court decisions in 6 Lindenbaum v. Realgy, LLC, __ F. Supp. 3d __, 2020 WL 6361915 (N.D. Ohio Oct. 29, 7 2020) and Creasy v. Charter Comm’ns Inc., No. CV 20-1199, 2020 WL 5761117 (E.D. 8 La. Sept. 28, 2020). Both cases ignore the pronouncements in the plurality decision as 9 articulated by Justice Kavanaugh and joined by six other justices and adopt the position 10 of the two-justice dissent. Lindenbaum criticizes the Supreme Court for “wav[ing] a 11 magic wand [to] make [the] constitutional violation disappear.” Id. at *7. Creasy 12 concludes that Justice Gorsuch’s dissent is “the better argument of law and logic.” Id. at 13 *2. 14 Whatever this Court may think of the Supreme Court’s logic or conclusions, it does 15 not dismiss such conclusions so lightly. Even if it was only dicta, as argued by Defendant, 16 the district court is not at liberty to completely ignore this pronouncement. See, e.g., 17 United States v. Montero-Camargo, 208 F.3d 1122, 1133 n.17 (9th Cir. 2000) (“Supreme 18 Court dicta have a weight that is greater than ordinary judicial dicta as prophecy of what 19 the court might hold; accordingly we do not blandly shrug them off because they were not 20 a holding.”) (quotation omitted). The Eleventh Circuit articulately explained: 21 We have always believed that when the Founders penned Article III’s reference to the judicial power being rested ‘in one Supreme Court and in such 22 inferior Courts’ as Congress may establish, they used ‘superior’ and ‘inferior’ 23 as contrasting adjectives, with us being on the short end of the contrast. It would never occur to use to tell the Supreme Court that we would decide our 24 cases based on our analysis of its decisions, not its own analysis of them if 25 that analysis had been announced in a case where it was not essential to the result . . . . [T]here is dicta, and then there is Supreme Court dicta. 26 27 Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006) (citation omitted). The Eleventh 28 Circuit cites numerous cases recognizing that “dicta from the Supreme Court is not 1 |}something to be lightly cast aside.” Id.; see, e.g., McCoy v. Mass. Ins. of Tech., 950 F.2d, 2 1113, 19 (ist Cir. 1991) (“We think that federal appellate courts are bound by the Supreme 3 || Court’s considered dicta almost as firmly as by the Court’s outright holdings, particularly 4 ||when ... a dictum is of recent vintage and not enfeebled by any subsequent statement.’’); 5 || Official Comm. Of Unsecured Creditors of Cybergenics Corp. v. Chinery, 330 F.3d 548, 6 (rd Cir. 2003) (en banc) (“Although the Committee is doubtless correct that the 7 || Supreme Court’s dicta are not binding on us, we do not view it lightly.”); Wynne v. Town 8 |lof Great Falls, 376 F.3d 292, 298 n.3 (4th Cir. 2004) (‘[W]ith inferior courts, like 9 |}ourselves . . . carefully considered language of the Supreme Court, even if technically 10 |}dictum, generally must be treated as authoritative.”); United States v. Becton, 632 F.2d 11 |} 1294, 1296 n.3 (Sth Cir. 1980) (“We are not bound by dicta, even of our own □□□□□ □□□□ 12 || Dicta of the Supreme Court are, of course, another matter.”’). 13 Ultimately, this Court concludes that Justice Kavanaugh’s statement that the AAPC 14 decision “does not negate the lability of parties who made robocalls covered by the 15 ||robocall restriction” if they were not made for the purposes of federal debt collection is 16 ||not dicta because it was joined by six other justices. However, even if it was dicta, this 17 ||Court finds it signals the intent of the Supreme Court and what it would hold in future 18 cases and, as such, may not be cavalierly dismissed by a district court. 19 || IV. CONCLUSION AND ORDER 20 This case involves allegations of the use of an automatic telephone dialing system 21 a prerecorded voice to sell cruise packages, not to collect a federal government debt. 22 || Justice Kavanagh’s statement in AAPC makes it clear that the TCPA still applies to this 23 ||conduct even though it occurred between 2015 and 2020. Therefore, Defendant’s Motion 24 Dismiss for Lack of Subject Matter Jurisdiction is DENIED. (ECF No. 196.) 25 IT IS SO ORDERED. 26 / ci fl 27 || DATED: January 28, 2021 Cyillig _| Hohe sk 28 United States District Judge