Leyse v. Bank of Am. Nat'l Ass'n

• Decision Date: 14 October 2015
• Docket Number: No. 14–4073.,14–4073.
• Citation: 804 F.3d 316
• Parties: Mark LEYSE, Individually and on behalf of all others similarly situated, Appellant v. BANK OF AMERICA NATIONAL ASSOCIATION.
• Court: U.S. Court of Appeals — Third Circuit

804 F.3d 316

Mark LEYSE, Individually and on behalf of all others similarly situated, Appellant

v.BANK OF AMERICA NATIONAL ASSOCIATION.

No. 14–4073.

United States Court of Appeals, Third Circuit.

Argued: July 7, 2015.

Opinion Filed: Oct. 14, 2015.

Todd C. Bank, ARGUED, Kew Gardens, N.Y., Attorney for Appellant.

Joseph R. Palmore, ARGUED, Morrison & Foerster LLP, Washington, DC, Mark P. Ladner, David J. Fioccola, Adam J. Hunt, Morrison & Foerster LLP, New York, N.Y., Attorneys for Appellee Bank of America National Association.

Before: FUENTES, SLOVITER, and ROTH, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge.

Mark Leyse brought an action under the Telephone Consumer Protection Act after receiving a prerecorded telemarketing call on the landline he shares with his roommate. Leyse was not the intended recipient of the call—his roommate was. For this reason, the District Court dismissed the complaint for lack of statutory standing. We find that it was error for the District Court to consider the motion to dismiss, which raised an argument that could have been raised in an earlier motion to dismiss. As the procedural error was harmless, however, we reach the merits and conclude that Leyse has statutory standing. His status as a regular user of the phone line and occupant of the residence that was called brings him within the language of the Act and the zone of interests it protects.

I. Background

A telemarketer seeking to advertise credit cards for Bank of America called the phone shared by Mark Leyse and his roommate, Genevieve Dutriaux. It is undisputed that Dutriaux was the telephone subscriber and intended recipient of the call, as the number was associated with her name in the telemarketing company's records. When the phone was answered—the complaint does not specify whether either roommate or the answering machine picked up—a prerecorded message played.

This message allegedly violated the advertising restrictions of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227, as well as its associated regulations. The Act prohibits any person from, among other things, “initiat [ing] any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the [Federal Communications] Commission.” Id. § 227(b)(1)(B).¹ As a result of the prerecorded message, a lawyer representing Dutriaux and Leyse filed several class-action lawsuits against Bank of America in multiple districts. The action on appeal before us is from the District of New Jersey. Leyse is the only named plaintiff.

Bank of America filed a Rule 12(b)(6) motion to dismiss on grounds of collateral estoppel, arguing that one of the prior lawsuits had been decided against Leyse in a manner that precluded further litigation. The District Court agreed and further found that Leyse's complaint was time-barred. On appeal, a panel of this Court initially affirmed, then changed its mind on panel rehearing. The panel found that the statute of limitations was tolled, and that collateral estoppel was inapplicable because it was unclear whether the dispositive issue here was actually adjudicated in the prior lawsuit. In vacating the dismissal, the panel noted that on remand, Bank of America might be able to argue that Leyse lacked statutory standing as the unintended recipient of the automated call.

Bank of America did just that. It filed a second Rule 12(b)(6) motion to dismiss, arguing that Leyse was not the “called party” identified in § 227(b)(1)(B) and therefore did not have statutory standing to bring suit. Leyse responded that the motion was procedurally improper under Rule 12, as the Bank could have raised its statutory standing argument in its previous motion but chose not to. He also contended another part of the statute, § 227(b)(3), gives a private right of action to any “person or entity” injured by the violation—not merely the “called party.”

The District Court sided with Bank of America on both questions and dismissed Leyse's complaint. It reasoned that Leyse was not the “called party,” which it defined as the intended recipient of the call, and therefore did not fall within the class of plaintiffs authorized to sue under the Telephone Consumer Protection Act. Leyse appealed.²

II. Discussion

A. Rule 12 Restrictions on Successive Motions to Dismiss

Leyse's first argument on appeal is that the District Court erred in considering Bank of America's second motion to dismiss, which he contends was filed in violation of the Federal Rules of Civil Procedure.

His claim of error is valid, but it does not warrant reversal.

The Rules impose restrictions on the filing of successive motions to dismiss: “Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under [Rule 12 ] must not make another motion under [Rule 12 ] raising a defense or objection that was available to the party but omitted from its earlier motion.” Fed.R.Civ.P. 12(g)(2). This “consolidation rule” is intended “to eliminate unnecessary delay at the pleading stage” by encouraging “the presentation of an omnibus pre-answer motion in which the defendant advances every available Rule 12 defense” simultaneously rather than “interposing these defenses and objections in piecemeal fashion.” Charles Alan Wright & Arthur R. Miller, 5C Fed. Prac. & Proc. Civ. § 1384 (3d ed.2014).

Bank of America's first motion to dismiss, which asserted collateral estoppel, was expressly brought under Rule 12. See also Metro. Edison Co. v. Pa. Pub. Util. Comm'n, 767 F.3d 335, 350 n. 19 (3d Cir.2014) (noting that collateral estoppel is a permissible basis for a Rule 12(b)(6) motion to dismiss for failure to state a claim). As Bank of America concedes, it could have argued in this motion that Leyse lacked statutory standing, but it did not. Thus, unless one of the exceptions specified in Rule 12(g)(2) applies—i.e., those established in Rule 12(h)(2) and (3) —the Bank's subsequent Rule 12 motion to dismiss on statutory standing grounds was procedurally barred.

The second motion to dismiss does not qualify for the Rule 12(h)(3) exception, which exempts only motions to dismiss for lack of subject-matter jurisdiction. Unlike Article III standing, statutory standing is not jurisdictional. See Lexmark Int'l, Inc. v. Static Control Components, Inc., ––– U.S. ––––, 134 S.Ct. 1377, 1388 & n. 4, 188 L.Ed.2d 392 (2014). Statutory standing goes to whether Congress has accorded a particular plaintiff the right to sue under a statute, but it does not limit the power of the court to adjudicate the case. See id. As a result, “[a] dismissal for lack of statutory standing is effectively the same as a dismissal for failure to state a claim,” and a motion to dismiss on this ground is brought pursuant to Rule 12(b)(6), rather than Rule 12(b)(1). Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 73–74 (3d Cir.2011) ; see also Sullivan v. DB Invs., Inc., 667 F.3d 273, 307 (3d Cir.2011).³

The motion does not fall within the Rule 12(h)(2) exception either. Under this provision, a successive motion to dismiss for “[f]ailure to state a claim ... may be raised (A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c); or (C) at trial.” Fed.R.Civ.P. 12(h)(2). Bank of America's second motion to dismiss was plainly neither a Rule 7(a) pleading nor a motion raised at trial. Nor was it a Rule 12(c) motion for judgment on the pleadings, which may be filed only “[a]fter the pleadings are closed.” Fed.R.Civ.P. 12(c). Thus, because no exception to Rule 12(g)(2) covers Bank of America's successive motion, it was improper to consider that motion.

The District Court's conclusion to the contrary was error. Following other district court decisions, the District Court held that it could consider Bank of America's second motion to dismiss because the previous motion had not “examine[d] the substance ” of Leyse's claims but rather challenged it on collateral estoppel grounds. (App. 8 n. 3 (quoting Walzer v. Muriel Siebert & Co., Civ. No. 04–5672(DRD), 2010 WL 4366197, at *10 (D.N.J. Oct. 28, 2010), aff'd sub nom. Walzer v. Muriel Siebert & Co., 447 Fed.Appx. 377 (3d Cir.2011) ).) The procedural bar of Rule 12(g)(2), however, covers all motions to dismiss for failure to state a claim, regardless of the grounds asserted. The District Court provided no basis for concluding otherwise, and we see none. Indeed, Bank of America easily could have included its statutory standing argument in the same motion as its collateral estoppel argument, which is the sort of consolidation that Rule 12(g)(2) is meant to encourage. If it had done so, it is likely that one of the two appeals could have been avoided.⁴

We also recognize that the Court of Appeals for the Seventh Circuit would find no error on the facts before us. In Ennenga v. Starns, the defendants filed two pre-answer motions to dismiss under Rule 12(b)(6), only the second of which argued that the plaintiffs' claims were untimely. In finding the second motion proper, the Seventh Circuit held that “Rule 12(g)(2) does not prohibit a new Rule 12(b)(6) argument from being raised in a successive motion” because “Rule 12(h)(2) specifically excepts failure-to-state-a-claim defenses from the Rule 12(g) consolidation requirement.” 677 F.3d 766, 773 (7th Cir.2012). We respectfully disagree. Like the Tenth Circuit, we find that Ennenga 's logic “fails to address the language from Rule 12(h)(2) that arguably limits a party to presenting [successive failure-to-state-a-claim] arguments in a pleading, a motion for judgment on the pleadings, or at trial.”See Albers v. Bd. of Cnty. Comm'rs of Jefferson Cnty., Colo., 771 F.3d 697, 703 (10th Cir.2014). The Sixth Circuit would likely agree with us as well. See English v. Dyke, 23 F.3d 1086, 1090–91 (6th Cir.1994).

Despite the District Court's error, it does...