Greenley v. Laborers' Int'l Union of N. Am., Case No. 16–cv–3773 (WMW/KMM)

• Court: United States District Courts. 8th Circuit. United States District Court of Minnesota
• Writing for the Court: Wilhelmina M. Wright, United States District Judge
• Citation: 271 F.Supp.3d 1128
• Parties: David GREENLEY, Plaintiff, v. LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, Defendant, and United States of America, Intervenor.
• Docket Number: Case No. 16–cv–3773 (WMW/KMM)
• Decision Date: 19 September 2017

271 F.Supp.3d 1128

David GREENLEY, Plaintiff,
v.
LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, Defendant,
and
United States of America, Intervenor.

Case No. 16–cv–3773 (WMW/KMM)

United States District Court, D. Minnesota.

Signed September 19, 2017

271 F.Supp.3d 1134

Abbas Kazerounian, Kazerounian Law Group, APC, Jason Alan Ibey, Kazerouni Law Group, APC, Costa Mesa, CA, Patrick J. Helwig, Peter F. Barry, Barry & Helwig, LLC, Minneapolis, MN, for Plaintiff.

Brendan D. Cummins, Cummins & Cummins, PLLP, Minneapolis, MN, Terrance G. Reed, Lankford & Reed PLLC, Alexandria, VA, for Defendant. Anjali Motgi, Washington, DC, Ann M. Bildtsen, United States Attorney's Office, Minneapolis, MN, for Intervenor.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

Wilhelmina M. Wright, United States District Judge

271 F.Supp.3d 1135

Plaintiff David Greenley commenced this class action¹ lawsuit against Defendant Laborers' International Union of North America (LIUNA) seeking statutory damages and injunctive relief for alleged violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. §§ 227, et seq. Greenley's two-count amended complaint asserts negligent and knowing or willful violations of the TCPA. Before the Court is LIUNA's motion to dismiss the amended complaint. (Dkt. 22.) The United States of America has intervened to support the constitutionality of the TCPA, to the extent that LIUNA seeks to dismiss the amended complaint on constitutional grounds. For the reasons addressed below, the Court denies LIUNA's motion to dismiss.

BACKGROUND

Greenley's amended complaint alleges that during a sixteen-month period from November 14, 2014, through March 16, 2016, LIUNA both negligently (Count I) and knowingly and/or willfully (Count II) made one unsolicited telephone call and sent four unsolicited text messages to his cellular telephone using an automatic telephone dialing system (ATDS), in violation of the TCPA.

The unsolicited telephone call involved an automated prerecorded message, the content of which is not described in the amended complaint. The first two unsolicited text messages stated:

Msg 1 of 2: This confirms yr consent to receive msgs from LIUNA & affiliates including any autodialed call & txt msg about important matters Reply STOP to quit.

Msg 2 of 2: Important matters include yr contract, benefits, union operations, political & legislative matters. Reply STOP to quit. Msg & data rates may apply.

The third unsolicited text message stated: "Msg from your union: Join us next week for Laborers Day @the Capitol. Reception Tues & meet w/legislators on Wed. Register at http://bit.ly/1psye0y." Greenly replied "STOP" to this message, which prompted a fourth text message that stated: "LIUNA: You have been removed from mobile alerts. Info: txt@mcom.ms Removed by mistake? Reply OOPS to rejoin."

According to the amended complaint, Greenley has never been a member or prospective member of LIUNA, and he has never had or expressed any interest in being a member of LIUNA or receiving the unsolicited communications described above. The amended complaint alleges that LIUNA's violations of the TCPA harmed Greenley by causing him to incur cellular telephone charges; invading his privacy; frustrating, distressing, harassing, and annoying him; and forcing him "and other similarly situated class members to live without the utility of their cellular phones because they were occupied by calls or text messages, causing annoyance and lost time."

LIUNA moves to dismiss the amended complaint on alternative grounds. LIUNA argues that Greenley lacks statutory and constitutional standing, the amended complaint fails to state a claim on which relief can be granted, the relief Greenley seeks is barred in whole or in part by the Noerr –Pennington doctrine and the Norris–LaGuardia Act, and the TCPA violates the First Amendment to the United States Constitution. On May 10, 2017, the United States filed a notice of intervention and

271 F.Supp.3d 1136

memorandum of law in support of the constitutionality of the TCPA, taking no position on LIUNA's non-constitutional arguments. Greenley subsequently joined in the arguments advanced in the United States' memorandum. LIUNA filed a memorandum in opposition to the United States.

ANALYSIS

LIUNA moves to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on several grounds. Under Rule 12(b)(1), a defendant may challenge the plaintiff's complaint for lack of subject-matter jurisdiction either on its face or on the factual truthfulness of its averments. See, e.g. , Titus v. Sullivan , 4 F.3d 590, 593 (8th Cir. 1993) ; see also Sandusky Wellness Ctr., LLC v. MedTox Sci., Inc. , 250 F.Supp.3d 354, 2017 WL 1483330, at *2 (D. Minn. Apr. 25, 2017) (stating that a motion to dismiss for lack of standing may be treated as either a "facial attack" or a "factual attack" on jurisdiction). In a facial attack, the non-moving party "receives the same protections as it would defending against a motion brought under Rule 12(b)(6)." Osborn v. United States , 918 F.2d 724, 729 n.6 (8th Cir. 1990). But when evaluating a factual challenge to subject-matter jurisdiction, the district court may weigh evidence outside the pleadings. Id. at 729–30. Here, LIUNA raises both facial and factual challenges to jurisdiction. Accordingly, to the extent that LIUNA raises a factual challenge to jurisdiction, the Court considers evidence outside the pleadings. But the Court analyzes LIUNA's Rule 12(b)(1) facial challenge under the same legal standard as is applied to LIUNA's Rule 12(b)(6) arguments.

A complaint must be dismissed if it fails to state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, the complaint must allege sufficient facts that, accepted as true, state a facially plausible claim to relief. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). When determining whether the complaint states such a claim, a district court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Blankenship v. USA Truck, Inc. , 601 F.3d 852, 853 (8th Cir. 2010). The factual allegations need not be detailed, but they must be sufficient to "raise a right to relief above the speculative level" and "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A plaintiff, however, must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. at 555, 127 S.Ct. 1955. Legal conclusions that are couched as factual allegations may be disregarded by the district court. See Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937.

I. Standing

LIUNA moves to dismiss the amended complaint because Greenley lacks both constitutional and statutory standing. "When a plaintiff alleges injury to rights conferred by statute, two separate standing-related inquiries are implicated: whether the plaintiff has Article III standing (constitutional standing) and whether the statute gives that plaintiff authority to sue (statutory standing)." Miller v. Redwood Toxicology Lab., Inc. , 688 F.3d 928, 934 (8th Cir. 2012). The Court addresses each inquiry in turn.

A. Constitutional Standing

Article III of the United States Constitution limits federal jurisdiction to actual cases or controversies. U.S. Const. art. III, § 2, cl. 1 ; Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ;

271 F.Supp.3d 1137

Hargis v. Access Capital Funding, LLC , 674 F.3d 783, 790 (8th Cir. 2012). As a jurisdictional prerequisite, standing must be established before reaching the merits of a lawsuit. City of Clarkson Valley v. Mineta , 495 F.3d 567, 569 (8th Cir. 2007). If a federal district court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3). When standing is challenged, the party invoking federal jurisdiction must establish that the requirements of standing have been satisfied. Mineta , 495 F.3d at 569. Standing is determined based on the facts as they existed when the complaint was filed. Lujan , 504 U.S. at 569 n.4, 112 S.Ct. 2130.

To satisfy the requirements of standing, a plaintiff must (1) have suffered an injury in fact, (2) establish a causal relationship between the defendant's conduct and the alleged injury, and (3) show that the injury would be redressed by a favorable decision. Id. at 560–61, 112 S.Ct. 2130 ; Mineta , 495 F.3d at 569. Only the injury-in-fact element of standing is disputed here.² An alleged "injury in fact" must be "concrete, particularized, and either actual or imminent." United States v. Metro. St. Louis Sewer Dist. , 569 F.3d 829, 833–34 (8th Cir. 2009) (citation omitted).

LIUNA asserts that Greenley lacks standing because he has not alleged a "concrete" injury in fact. Relying on the recent decision of the Supreme Court of the United...