Drake v. Firstkey Homes, LLC

• Decision Date: 20 February 2020
• Docket Number: CIVIL ACTION NO. 1:19-CV-1746-LMM
• Citation: 439 F.Supp.3d 1313
• Parties: Brenda DRAKE, individually and on behalf of all others similarly situated, Plaintiff, v. FIRSTKEY HOMES, LLC, Defendant.
• Court: U.S. District Court — Northern District of Georgia

439 F.Supp.3d 1313

Brenda DRAKE, individually and on behalf of all others similarly situated, Plaintiff,

v.FIRSTKEY HOMES, LLC, Defendant.

CIVIL ACTION NO. 1:19-CV-1746-LMM

United States District Court, N.D. Georgia, Atlanta Division.

Signed February 20, 2020

Aaron D. Radbil, Greenwald Davidson & Radbil, PLLC, Austin, TX, Gary M. Klinger, Kozonis & Klinger, Ltd., Chicago, IL, Michael Lewis Greenwald, Greenwald Davidson & Radbil, PLLC, Boca Raton, FL, Shireen Hormozdi, Hormozdi Law Firm, LLC, Norcross, GA, for Plaintiff.

Livia M. Kiser, Rachael M. Trummel, Andrew J. Chinsky, King & Spalding, LLP, Chicago, IL, Harold E. Franklin, Jr., King & Spalding, LLP, Zheyao Li, Seyfarth Shaw LLP, Atlanta, GA, for Defendant.

ORDER

Leigh Martin May, United States District Judge

This case comes before the Court on Defendant's Motion for Summary Judgment, or Alternatively, to Dismiss Proposed Class Allegations [29]. After due consideration, the Court enters the following Order:

I. BACKGROUND

Plaintiff Brenda Drake sued Defendant FirstKey Homes, LLC on April 18, 2019, alleging several violations of the Telephone Consumer Protections Act ("TCPA"), 47 U.S.C. § 227, and the Federal Communications Commission ("FCC") rules promulgated under that statute, 47 C.F.R. § 64.1200. Dkt. No. [1] ¶ 1. Plaintiff claims that Defendant violated the TCPA and the FCC rules when it called her using an automatic telephone dialing system and left her a voicemail using an artificial or prerecorded voice, while failing to provide an automated opt-out mechanism. Id. ¶¶ 81–92.

Plaintiff was the subscriber and sole customary user of the Indiana cell phone number (xxx) xxx-6386 from July 2018 through August 2019. Dkt. No. [41] at 11. This number was assigned to her by her wireless service provider, Cricket Wireless, when she switched from a previous California number. Id. at 12.

Defendant is a real estate services company whose business includes "leasing, rent collection, credit screening, property management, repairs and maintenance, construction, renovation oversight services, and quality control for rental home properties." Dkt. No. [29-2] ¶ 2. Defendant sometimes communicates with its clients through mobile phone numbers that they provide. Id. ¶ 3. Plaintiff claims to have received "at least two" calls from Defendant on her *6386 number, id., a claim Defendant admits. Dkt. Nos. [29-2] ¶¶ 18, 22; [47-1] at 4, Response to ¶ 9. Defendant explains that it called the number in response to a residence-viewing request that someone named Brittany Valentine placed with Defendant through Zillow, submitting the *6386 number as her own. Dkt. No. [29-2] ¶¶ 4–17. Brittany Valentine is not a party to this action, though Plaintiff "suspects that Ms. Valentine may have been a former subscriber to telephone number *6386 because she received calls from several different entities looking for Ms. Valentine." Dkt. No. [41] at 20 n.3.

The first call from Defendant to Plaintiff's number came on January 5, 2019, when Defendant's representative left Plaintiff a personal voice message "identifying herself as [Defendant's] representative, indicating that she was aware that Valentine had toured two properties, providing a toll-free callback number, and requesting a return call." Dkt. No. [29-2] ¶ 18. Because a natural person made and manually dialed this call, Plaintiff does not argue that it violated the TCPA. Dkt. No. [40] ¶ 18 (admitting the personal, manually dialed nature of the call).

Defendant made the second call on February 14, 2019, and the parties agree that it then left a prerecorded voicemail. Dkt. Nos. [29-2] ¶ 22; [47-1] at 4, Response to ¶ 9 (admitting the prerecorded message). Plaintiff claims to have listened to the entire voicemail, which "was over 30 seconds long," shortly after receiving it. Dkt. No. [41-1] ¶ 11. This is what it said:

This is a courtesy call from FirstKey Homes. We're sprinkling a little love your way. We're presently offering $500 off of April rent on select homes. What an exciting offer. This promotion is on select homes through February 28th. Please call us today at xxx-xxx-3959. We look forward to helping you select your new home. Thank you for choosing FirstKey Homes.

Id. ¶ 10.

This February 14, 2019 call and prerecorded voicemail form the basis of Plaintiff's three claims for relief: (1) that Defendant violated 47 U.S.C. § 227(b)(i)(A)(iii) when it used an automatic telephone dialing system to call her cell phone without her consent and when it left an artificial or prerecorded voicemail without her consent; (2) that Defendant violated 47 C.F.R. § 64.1200(a)(2) (an FCC regulation) when it autodialed her cell phone and left an artificial or prerecorded voicemail without her consent; and (3) that Defendant violated 47 C.F.R. § 64.1200(b)(3) when it left an artificial or prerecorded voicemail and failed to provide an automated opt-out mechanism or a toll-free number to reach an automated opt-out mechanism. Dkt. No. [1].

Defendant moves for summary judgment on all claims. Dkt. No. [29-1]. It argues that Plaintiff lacks Article III standing to sue, id. at 18–20, 26–31, that an FCC safe harbor protects it from liability, id. at 21, that the TCPA is unconstitutional, id. at 33–36, and that Plaintiffs class claims should be dismissed, id. at 36–38. On August 12, 2020, Defendant filed a Rule 5.1 Notice of Constitutional Question, Dkt. [30], and on November 8, 2020, the United States Department of Justice filed an intervenor's brief supporting the constitutionality of the TCPA. Dkt. No. [39].

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

A factual dispute is genuine if the evidence would allow a reasonable jury to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it is "a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

The moving party bears the initial burden of showing the Court, by reference to materials in the record, that there is no genuine dispute as to any material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). The moving party's burden is discharged merely by " ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support [an essential element of] the nonmoving party's case." Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. In determining whether the moving party has met this burden, the district court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion. Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir. 1996).

Once the moving party has adequately supported its motion, the non-movant then has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). There is no "genuine [dispute] for trial" when the record as a whole could not lead a rational trier of fact to find for the nonmoving party. Id. (citations omitted). All reasonable doubts, however, are resolved in the favor of the non-movant. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

III. DISCUSSION

The Court must decide whether Plaintiff has produced facts showing a genuine dispute of material fact on each of her claims. However, the parties agree on most of the relevant facts in this case. Defendant admits that it left the prerecorded voice message, but it argues that, for various reasons, Plaintiff's claims fail. Dkt. No. [29-1]. The Court will address each reason in turn: Plaintiff's standing, the FCC safe harbor, the constitutionality of the TCPA, and Plaintiff's proposed class claims.

A. Standing

Defendant argues that Plaintiff's claims should be dismissed because she has not shown an injury sufficient for standing. "The judicial Power of the United States" extends to "Cases" and "Controversies." U.S. Const. art. III, §§ 1 –2. An outgrowth of this constitutional principle is the common-law doctrine of standing, which has "developed ... to ensure that federal courts do not exceed their authority as it has been traditionally understood." Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (citing Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) ). The "irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, a plaintiff must show an " ‘injury in fact’-an invasion of a legally protected interest which is [ ] concrete and particularized." Id. (citing Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ). "Second, there must be a causal connection between the injury and the conduct complained of." Id. (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) ). And third, the injury must be likely to "be ‘redressed by a favorable decision.’ " Id. at 561, 112 S.Ct. 2130. At this stage, Plaintiff carries the burden to show these elements "with the manner and degree of evidence required" at summary judgment. Id. (citations omitted).

1. Injury in Fact

Defendant first argues that Plaintiff cannot show an injury in fact. The Supreme Court and Eleventh Circuit have described injury in fact as the "foremost" of the three elements of standing. See Salcedo v. Hanna, 936 F.3d 1162, 1166 (11th Cir. 2019) (cit...