Childress v. DeSilva Auto. Servs., LLC
| Decision Date | 01 July 2020 |
| Docket Number | No. CIV 20-0136 JB\JHR,CIV 20-0136 JB\JHR |
| Parties | MARJORIE CHILDRESS Plaintiff, v. DESILVA AUTOMOTIVE SERVICES, LLC; PALMER ADMINISTRATIVE SERVICES, INC.; VAJIRA SAMARATNE; and PAYLINK PAYMENT PLANS, LLC, Defendants. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on the Defendants' Joint Motion to Stay Case and Brief in Support, filed April 6, 2020 (Doc. 15)("Motion"). The Court held a hearing on June 3, 2020. The primary issue is whether the Court should stay prosecution of Plaintiff Marjorie Childress' Complaint for Violations of the Telephone Consumer Protection Act, the Unfair Practices Act, and Torts, filed in state court on January 14, 2020, filed in federal court on February 17, 2020 (Doc. 1-1)("Complaint"), because the Supreme Court of the United States of America has granted certiorari in Barr v. American Association of Political Consultants, 140 S. Ct. 812 (2020), to determine whether the Telephone Consumer Protect Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394 ("TCPA"), which restricts robocalls1 to cellular telephones, violates the Speech Clause of the First Amendment to the Constitution of the United States of America, and Childressalleges a claim based on the TCPA. The Court denies the Motion, because Defendant DeSilva Automotive Services, LLC ("DeSilva Automotive") has not met its burden in justifying that a stay is warranted.
Childress contends that DeSilva Automotive, Defendant Vajira Samaratne, Defendant Palmer Administrative Services, Inc. ("Palmer Services"), and Defendant Paylink Payment Plans, LLC ("Paylink Payment"), are engaged in an "autodialing conspiracy." Complaint at 10. Childress alleges that DeSilva Automotive, under Samaratne's direction, either is operating its own call-center or has contracted with a marketing company, to initiate "hundreds of thousands or millions of unlawful robocalls into the State of New Mexico" to market vehicle service contracts ("VSCs"). Complaint ¶ 22, at 5. See id. ¶ 23, at 5-6. Childress alleges that Palmer Services administers these contracts, see Complaint ¶ 23, at 24, and that Paylink Payment "finances the purchase price of Palmer Service's VSCs sold to customers by DeSilva's telemarketing," Complaint ¶ 24, at 12. Childress alleges that DeSilva Automotive and Samaratne direct these calls primarily to elderly New Mexico residents. See Complaint ¶ 31, at 13.
Childress further alleges that Paylink Payment "knows that many of the VSCs it chooses to finance are sold via unsolicited phone calls including robocalls, and that the sellers would not be able to sell the VSCs or even profitably engage in robocalling without the substantial assistance and support of Paylink's services[.]" Complaint ¶ 32, at 13. Childress alleges that Paylink Payment "chooses" not to supervise those who market its services and instead "remain[s] willfully or consciously ignorant of whether or not the marketers" comply with state and federal law.Complaint ¶ 33, at 13. Childress says, however, that "numerous" complaints have brought the robocalling practices to Paylink Payment's attention. Complaint ¶ 31, at 6-7.
Childress says that she owns a cellular telephone ("cellphone") with a New Mexico area code. See Complaint ¶ 48, at 10. Childress' cellphone number is on the National Do-Not Call Registry ("Registry"), and Childress "never consented" to robocalls from the Defendants. Complaint ¶ 58, at 12. See id. ¶ 56, at 12. DeSilva Automotive, under Samaratne's direction and control, "ha[s] repeatedly called Plaintiff's wireless phone with an automatic telephone dialing system." Complaint ¶ 49, at 10. Childress received each of these calls over a twelve-month period. See Complaint ¶ 65, at 12. Childress contends that DeSilva Automotive called her via autodialer, because "whenever she answered one of these calls she was greeted by an artificial voice or prerecorded message that told her [that] her auto warranty was about to expire and she should press '1' to speak to a live telemarketer about it." Complaint ¶ 50, at 11. The use of artificial or prerecorded voices to greet consumers who answer telephone calls is "a tell-tale indicator of mass-marketing by automation as opposed to human-made calls." Complaint ¶ 51, at 11. When Childress requested to speak with a live telemarketer, the live telemarketer never identified the call's sponsor within fifteen seconds of Childress answering "or at any other time." Complaint ¶ 53, at 11. "After months of repeated robocall harassment," Childress spoke with a live telemarketer and purchased a VSC "so she could actually identify Defendants." Complaint ¶ 54, at 11. Childress later received a "VSC booklet" that identified "DeSilva and its co-conspirators," Paylink Payment and Palmer Services. Complaint ¶ 55, at 11-12. Childress says that the Defendants' calls "aggravated and harassed [her], wasted her time, invaded her privacy, disrupted her days, were an obnoxious nuisance, cost her money to identify Defendants, and cost herelectricity to re-charge her phone." Complaint ¶ 60, at 12. Childress alleges that the Defendants knowingly and willfully called her even though her cellphone number is on the Registry. See Complaint ¶ 73, at 14.
Childress alleges five claims for relief. See Complaint ¶¶ 80-91, at 16-17. First, Childress alleges that the Defendants violated the TCPA, 47 U.S.C. § 227(b). See Complaint ¶ 80, at 16. Second, Childress alleges that the Defendants violated the TCPA, 47 U.S.C. § 227(c), because the Defendants called her more than once in a twelve-month period. See Complaint ¶ 82, at 16. Third, Childress asserts a common-law claim for trespass to chattels "and for their civil conspiracy to direct an illegal telemarketing campaign into the State of New Mexico and to Plaintiff in particular." Complaint ¶ 84, at 16. Fourth, Childress alleges that the Defendants violated the New Mexico Unfair Practices Act, N.M. Stat. Ann. §§ 57-12-1 to -26 ("NMUPA"). See Complaint ¶¶ 87-91, at 17. Specifically, Childress alleges that each of the Defendants' calls to her violate N.M. Stat. Ann. § 57-12-22(A), (B)(1), and (C)(1). See Complaint ¶¶ 88-89, at 17. Childress contends that, for each of her claims, DeSilva Automotive is directly liable for its telephone calls to Childress, and that Samaratne, Paylink Payment, and Palmer Services are vicariously liable, because DeSilva Automotive acted as their agent subject to their control. See Complaint ¶¶ 72-73, at 14. The Defendants now ask that the Court stay the proceedings until the Supreme Court decides whether the TCPA is an unconstitutional content-based restriction of speech and, if so, whether the unconstitutional provision is severable from the rest of the TCPA. See Motion at 1.
The Defendants say that the Complaint "involves a single claim" under the TCPA and argue that the Court should stay this case, because the Supreme Court has granted certiorari in Barr v. American Association of Political Consultants, 140 S. Ct. 812 (No. 19-631)("Barr v. AAPC") to decide the TCPA's constitutionality. Motion at 1. The Defendants say that the AAPC advances two primary arguments before the Supreme Court: (i) the TCPA's exceptions for robocalls made solely to collect a debt owed to the United States renders the TCPA an impermissible content-based speech restriction; and (ii) the government-debt exception is not severable from the rest of the statute. See Motion at 3 (citing Am. Ass'n of Political Consultants, Inc., v. Sessions, 323 F. Supp. 3d 737, 741 (E.D.N.C. 2018)(Dever, J.)("AAPC v. Session")). The Defendants aver that the United States Court of Appeals for the Fourth Circuit concluded that the government-debt exception is unconstitutional but that the exception is severable from the rest of the statute. See Motion at 3 (citing Am. Ass'n of Political Consultants, Inc. v. FCC, 923 F.3d 159, 166 (4th Cir. 2019)("AAPC v. FCC")). The Defendants say that both the United States and the AAPC sought certiorari, with the United States contending that the government-debt exception is content neutral and the AAPC arguing that the entire TCPA is a content-based restriction that is unconstitutional in its entirety. See Motion at 4 (). The Defendants also note that the United States Court of Appeals for the Ninth Circuit has "twice held that the automated-call ban is unconstitutional, and twice applied severance as the remedy." Motion at 3 n.3 (citing Duguid v. Facebook, Inc., 926 F.3d 1146, 1151 (9th Cir. 2019); Gallion v.United States, 772 F. App'x 60, 65 (9th Cir. 2019)(unpublished)). The Defendants state that the Supreme Court has granted certiorari in Barr v. AAPC to determine: (i) whether the government-debt exception violates the First Amendment; and (ii) if so, whether the proper remedy is to sever the government-debt exception. See Motion at 4.
The Defendants assert that "all relevant considerations in this case weigh in favor of granting a stay" until the Supreme Court issues its opinion in Barr v. AAPC. Motion at 5. The Defendants rely on Schartel v. OneSourch Tech., LLC, No. 1:15 CV 1434, 2015 WL 7430056 (N.D. Ohio Nov. 17, 2015)(Gaughan, J.)("Schartel"), for the legal standard for when district courts should grant stays pending the Supreme Court's disposition of a separate proceeding. See Motion at 5. First, the Defendants aver that the Supreme Court's ruling in Barr v. AAPC is "'likely to have a substantial or controlling effect on the claims and issue'" in this case. Motion at 5 (quoting Luster v. Jewelers, No. 1:15-cv-2854-WSD, 2015 WL 9255553, at *4 (N.D. Ga. Dec. 17, 2015)(Duffey, J.)). The Defendants contend that the Supreme Court will likely ...
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