1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Brenda Whittaker, No. CV-20-08150-PCT-JJT
10 Plaintiff, ORDER
11 v.
12 WinRed Technical Services LLC, et al.,
13 Defendants. 14 15 At issue is Defendant National Republican Senatorial Committee’s (“NRSC”) 16 Motion to Dismiss under Rule 12(b)(6) or to Stay Proceedings (Doc. 13, MTD), to which 17 Plaintiff Brenda Whittaker filed a Response (Doc. 19, Resp.) and NRSC filed a Reply 18 (Doc. 20, Reply). The Court granted NRSC’s request to file Supplemental Briefing in this 19 matter (Doc. 23, Supp.), to which Plaintiff filed a Supplemental Response (Doc. 24, Supp. 20 Resp.). The Court also granted NRSC’s request to file a Second Supplemental Briefing 21 (Doc. 27, 2d Supp.), to which Plaintiff filed a Second Supplemental Response (Doc. 28, 22 2d Supp. Resp.). Additionally, Plaintiff filed nine Notices of Supplemental Authority. 23 (Docs. 29–37.) The Court has reviewed the parties’ briefs and finds this matter appropriate 24 for decision without oral argument. See LRCiv 7.2(f). For the reasons set forth below, the 25 Court will grant in part and deny in part NRSC’s Motion. 26 I. BACKGROUND 27 On June 23, 2020, Plaintiff filed a Complaint bringing a putative class action against 28 NRSC under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. 1 § 227(b)(1)(A)(iii). Plaintiff states that in April 2020, she received seven unsolicited text 2 messages from NRSC. (Doc. 1, Compl. ¶¶ 14, 16.) In the Complaint, Plaintiff alleges that 3 this communication violated the TCPA because NRSC intentionally sent the text messages 4 using an automatic telephone dialing system (“ATDS”) without her consent. (Compl. 5 ¶¶ 12, 18–19.) NRSC now moves to dismiss the TCPA cause of action for failure to state 6 a claim, and in the alternative, requests that the Court stay this case pending the Supreme 7 Court’s review of the Ninth Circuit Court of Appeal’s decision in Duguid v. Facebook, 8 Inc., 926 F.3d 1146 (9th Cir. 2019). (MTD at 2.) 9 II. LEGAL STANDARD 10 When analyzing a complaint for failure to state a claim for relief under Federal Rule 11 of Civil Procedure 12(b)(6), the well-pled factual allegations are taken as true and 12 construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 13 1063, 1067 (9th Cir. 2009). A plaintiff must allege “enough facts to state a claim to relief 14 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Legal 15 conclusions couched as factual allegations are not entitled to the assumption of truth, 16 Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are insufficient to defeat a 17 motion to dismiss for failure to state a claim. In re Cutera Sec. Litig., 610 F.3d 1103, 1108 18 (9th Cir. 2010). 19 A dismissal under Rule 12(b)(6) for failure to state a claim can be based on either (1) 20 the lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal 21 claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). “While a 22 complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations, a 23 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 24 than labels and conclusions, and a formulaic recitation of the elements of a cause of action 25 will not do.” Twombly, 550 U.S. at 555 (citations omitted). The complaint must thus contain 26 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 27 face.’” Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “[A] well-pleaded 28 complaint may proceed even if it strikes a savvy judge that actual proof of those facts is 1 improbable, and that ‘recovery is very remote and unlikely.’” Twombly, 550 U.S. at 556 2 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 3 III. ANALYSIS 4 NRSC first argues that Plaintiff failed to state a claim because a provision of the 5 TCPA was unconstitutional during the time Plaintiff alleges to have received text messages 6 from NRSC. (MTD at 6.) Plaintiff, however, argues that the invalidation of the provision 7 to the Act does not render the entire TCPA unconstitutional, and therefore, NRSC is still 8 liable for its actions. (Resp. at 3.) As an alternative to its request for dismissal, NRSC asks 9 the Court to stay this case pending the Supreme Court’s decision in Facebook and its 10 interpretation of an ATDS. In response, Plaintiff contends it is unnecessary and inefficient 11 to stay this case and delay discovery because the outcome of Facebook is not dispositive 12 of her claim. (Resp. at 8–10.) 13 In 1991, Congress enacted the TCPA establishing that it is “unlawful for any person 14 within the United States . . . to make any call . . . using any automatic telephone dialing 15 system . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. 16 § 227(b)(1)(A)(iii). The TCPA defines an ATDS as “equipment which has the capacity— 17 (A) to store or produce telephone numbers to be called, using a random or sequential 18 number generator; and (B) to dial such numbers.” Id. § 227 (a)(1). In 2015, Congress 19 amended this statute to permit the government to use an ATDS to collect debts. Bipartisan 20 Budget Act of 2015, Pub. L. No. 114-74, § 301(a)(1)(A), 129 Stat. 584, 588 (amending 47 21 U.S.C. § 227(b)(1)(A)(iii)). There has been a fair amount of controversy since the 22 enactment of this amendment. 23 Indeed, the Supreme Court subsequently examined the government-debt exception 24 to consider whether it was unconstitutional. Barr v. Am. Ass’n of Political Consultants, 140 25 S. Ct. 2335 (2020) (“AAPC”). In a plurality decision, the Supreme Court held that it “must 26 invalidate the 2015 government-debt exception and sever it from the remainder of the 27 statute.”1 Id. at 2349. But the Supreme Court only addressed the prospective effect of the 28 1 Six Justices opined that the TCPA government-debt exception violated the First 1 severed statute and did not address a defendant’s retrospective liability for past robocalls 2 made while the unconstitutional government-debt exception was affixed to the face of the 3 statute, between enactment in 2015 and severance in 2020. NRSC urges this Court to 4 interpret AAPC as finding the entirety of § 227(b)(1)(A)(iii) unconstitutional between the 5 enactment of the amendment and AAPC and thus excuse it from retrospective liability. The 6 Court declines to adopt that interpretation at this time. 7 Instead, the Court agrees with the vast majority of district courts that have denied 8 motions to dismiss grounded in issues similar to the one at hand. See, e.g., Trujillo v. Free 9 Energy Sav. Co., 2020 WL8184336 (C.D. Cal. Dec. 21, 2020); Shen v. Tricolor Cal. Auto 10 Grp., LLC, 2020 WL 7705888 (C.D. Cal. Dec. 17, 2020); Abramson v. Fed. Ins. Co., 2020 11 WL 7318953, at *3–4 (M.D. Fla. Dec.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Brenda Whittaker, No. CV-20-08150-PCT-JJT
10 Plaintiff, ORDER
11 v.
12 WinRed Technical Services LLC, et al.,
13 Defendants. 14 15 At issue is Defendant National Republican Senatorial Committee’s (“NRSC”) 16 Motion to Dismiss under Rule 12(b)(6) or to Stay Proceedings (Doc. 13, MTD), to which 17 Plaintiff Brenda Whittaker filed a Response (Doc. 19, Resp.) and NRSC filed a Reply 18 (Doc. 20, Reply). The Court granted NRSC’s request to file Supplemental Briefing in this 19 matter (Doc. 23, Supp.), to which Plaintiff filed a Supplemental Response (Doc. 24, Supp. 20 Resp.). The Court also granted NRSC’s request to file a Second Supplemental Briefing 21 (Doc. 27, 2d Supp.), to which Plaintiff filed a Second Supplemental Response (Doc. 28, 22 2d Supp. Resp.). Additionally, Plaintiff filed nine Notices of Supplemental Authority. 23 (Docs. 29–37.) The Court has reviewed the parties’ briefs and finds this matter appropriate 24 for decision without oral argument. See LRCiv 7.2(f). For the reasons set forth below, the 25 Court will grant in part and deny in part NRSC’s Motion. 26 I. BACKGROUND 27 On June 23, 2020, Plaintiff filed a Complaint bringing a putative class action against 28 NRSC under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. 1 § 227(b)(1)(A)(iii). Plaintiff states that in April 2020, she received seven unsolicited text 2 messages from NRSC. (Doc. 1, Compl. ¶¶ 14, 16.) In the Complaint, Plaintiff alleges that 3 this communication violated the TCPA because NRSC intentionally sent the text messages 4 using an automatic telephone dialing system (“ATDS”) without her consent. (Compl. 5 ¶¶ 12, 18–19.) NRSC now moves to dismiss the TCPA cause of action for failure to state 6 a claim, and in the alternative, requests that the Court stay this case pending the Supreme 7 Court’s review of the Ninth Circuit Court of Appeal’s decision in Duguid v. Facebook, 8 Inc., 926 F.3d 1146 (9th Cir. 2019). (MTD at 2.) 9 II. LEGAL STANDARD 10 When analyzing a complaint for failure to state a claim for relief under Federal Rule 11 of Civil Procedure 12(b)(6), the well-pled factual allegations are taken as true and 12 construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 13 1063, 1067 (9th Cir. 2009). A plaintiff must allege “enough facts to state a claim to relief 14 that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Legal 15 conclusions couched as factual allegations are not entitled to the assumption of truth, 16 Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are insufficient to defeat a 17 motion to dismiss for failure to state a claim. In re Cutera Sec. Litig., 610 F.3d 1103, 1108 18 (9th Cir. 2010). 19 A dismissal under Rule 12(b)(6) for failure to state a claim can be based on either (1) 20 the lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal 21 claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). “While a 22 complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations, a 23 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 24 than labels and conclusions, and a formulaic recitation of the elements of a cause of action 25 will not do.” Twombly, 550 U.S. at 555 (citations omitted). The complaint must thus contain 26 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 27 face.’” Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “[A] well-pleaded 28 complaint may proceed even if it strikes a savvy judge that actual proof of those facts is 1 improbable, and that ‘recovery is very remote and unlikely.’” Twombly, 550 U.S. at 556 2 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 3 III. ANALYSIS 4 NRSC first argues that Plaintiff failed to state a claim because a provision of the 5 TCPA was unconstitutional during the time Plaintiff alleges to have received text messages 6 from NRSC. (MTD at 6.) Plaintiff, however, argues that the invalidation of the provision 7 to the Act does not render the entire TCPA unconstitutional, and therefore, NRSC is still 8 liable for its actions. (Resp. at 3.) As an alternative to its request for dismissal, NRSC asks 9 the Court to stay this case pending the Supreme Court’s decision in Facebook and its 10 interpretation of an ATDS. In response, Plaintiff contends it is unnecessary and inefficient 11 to stay this case and delay discovery because the outcome of Facebook is not dispositive 12 of her claim. (Resp. at 8–10.) 13 In 1991, Congress enacted the TCPA establishing that it is “unlawful for any person 14 within the United States . . . to make any call . . . using any automatic telephone dialing 15 system . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. 16 § 227(b)(1)(A)(iii). The TCPA defines an ATDS as “equipment which has the capacity— 17 (A) to store or produce telephone numbers to be called, using a random or sequential 18 number generator; and (B) to dial such numbers.” Id. § 227 (a)(1). In 2015, Congress 19 amended this statute to permit the government to use an ATDS to collect debts. Bipartisan 20 Budget Act of 2015, Pub. L. No. 114-74, § 301(a)(1)(A), 129 Stat. 584, 588 (amending 47 21 U.S.C. § 227(b)(1)(A)(iii)). There has been a fair amount of controversy since the 22 enactment of this amendment. 23 Indeed, the Supreme Court subsequently examined the government-debt exception 24 to consider whether it was unconstitutional. Barr v. Am. Ass’n of Political Consultants, 140 25 S. Ct. 2335 (2020) (“AAPC”). In a plurality decision, the Supreme Court held that it “must 26 invalidate the 2015 government-debt exception and sever it from the remainder of the 27 statute.”1 Id. at 2349. But the Supreme Court only addressed the prospective effect of the 28 1 Six Justices opined that the TCPA government-debt exception violated the First 1 severed statute and did not address a defendant’s retrospective liability for past robocalls 2 made while the unconstitutional government-debt exception was affixed to the face of the 3 statute, between enactment in 2015 and severance in 2020. NRSC urges this Court to 4 interpret AAPC as finding the entirety of § 227(b)(1)(A)(iii) unconstitutional between the 5 enactment of the amendment and AAPC and thus excuse it from retrospective liability. The 6 Court declines to adopt that interpretation at this time. 7 Instead, the Court agrees with the vast majority of district courts that have denied 8 motions to dismiss grounded in issues similar to the one at hand. See, e.g., Trujillo v. Free 9 Energy Sav. Co., 2020 WL8184336 (C.D. Cal. Dec. 21, 2020); Shen v. Tricolor Cal. Auto 10 Grp., LLC, 2020 WL 7705888 (C.D. Cal. Dec. 17, 2020); Abramson v. Fed. Ins. Co., 2020 11 WL 7318953, at *3–4 (M.D. Fla. Dec. 11, 2020) (citing to a collection of cases that have 12 concluded that “parties may continue to bring claims under the portions of § 227(b) 13 unaltered by AAPC”). One district court has even departed from its earlier decision to grant 14 a motion to dismiss on this issue. (Doc. 37 (citing Boisvert v. Carnival Co., No. 8:20-cv- 15 2076-30SPF (M.D. Fla. Dec. 11, 2020) (“Upon further reflection, the Court departs from 16 its earlier opinion because, since the Court’s Order in Hussain, every court faced with this 17 same issue has concluded that a plaintiff may continue to bring § 227(b) claims post- 18 AAPC.”)).) Although NRSC supports its Motion with two out-of-circuit decisions that 19 have granted dismissal, those holdings are not persuasive. The Court will therefore deny 20 NRSC’s motion to dismiss for failure to state a claim. 21 Alternatively, NRSC seeks to stay this case pending the Supreme Court’s decision 22 in Facebook, Inc. v. Duguid. This Court has the inherent authority to manage its cases to 23 ensure their orderly and efficient disposition. Sherman v. United States, 801 F.2d 1133, 24 1135 (9th Cir. 1986). This includes discretion to stay a case if it serves the interest of 25 judicial economy and does not substantially prejudice a party. Here, Plaintiff contests 26 NRSC’s request for a stay of the proceedings; however, because the Facebook decision is 27
28 Amendment, and seven Justices opined that the amendment should be severed from the remainder of the statute. likely imminent, the Court does not find that a brief stay will substantially prejudice 2|| Plaintiff. See Canady vy. Bridgecrest Acceptance Corp., No. CV-19-04738-PHX-DWL, 2020 WL 5249263, at *2 (D. Ariz. Sept. 3, 2020) (granting stay pending Facebook decision 4|| because the risks of harm to the plaintiff do not “outweigh the interest of efficiency and 5 || judicial economy that will be served by delaying further litigation of this action’’). 6 IT IS THEREFORE ORDERED granting in part and denying in part Defendant National Republican Senatorial Committee’s Motion to Dismiss under Rule 12(b)(6) or to 8 || Stay Proceedings (Doc. 13). The Court declines to dismiss this case but grants Defendant’s || request to stay these proceedings pending the Supreme Court’s resolution of Facebook, Inc. v. Duguid, No. 19-511. 11 IT IS FURTHER ORDERED that the parties shall file a joint Notice of Decision within 10 days of publication of the Supreme Court’s decision in Facebook, Inc. v. Duguid. 13 Dated this 23rd day of March, 2021. CN 14 “wok: 15 wefholee— Unitgd StatesDistrict Judge 16 17 18 19 20 21 22 23 24 25 26 27 28
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