Lindenbaum v. Realgy, LLC

• Decision Date: 29 October 2020
• Docket Number: Case No. 1:19 CV 2862
• Citation: 497 F.Supp.3d 290
• Parties: Roberta LINDENBAUM,on behalf of herself and others similarly situated, Plaintiff, v. REALGY, LLC et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

497 F.Supp.3d 290

Roberta LINDENBAUM,on behalf of herself and others similarly situated, Plaintiff,

v.REALGY, LLC et al., Defendants.

Case No. 1:19 CV 2862

United States District Court, N.D. Ohio, Eastern Division.

Signed October 29, 2020

Katrina Carroll, Kyle A. Shamberg, Lite DePalma Greenberg, Chicago, IL, Adam T. Savett, Allentown, PA, for Plaintiff.

Matthew A. Keilson, Ryan D. Watstein, Joseph S. Carr, Kabat Chapman & Ozmer, Atlanta, GA, for Defendants.

Memorandum of Opinion and Order

PATRICIA A. GAUGHAN, Chief Judge

INTRODUCTION

This matter is before the Court upon Realgy, LLC's Motion to Dismiss Amended Complaint (Doc. 20). This is a class action arising under the Telephone Consumer Protection Act ("TCPA"). For the reasons that follow, the motion is GRANTED.

FACTS

Plaintiff, Roberta Lindenbaum, brings this class action lawsuit against defendant Realgy, LLC and ten John Doe corporations alleging violations of the TCPA. According to the complaint, defendant placed a pre-recorded call to plaintiff's cellular telephone. After the filing of this lawsuit, defendant placed a second pre-recorded call, this time to plaintiff's landline. Plaintiff never provided express written consent to receive these calls. Plaintiff alleges that defendant violated 47 U.S.C. § 227.

During the pendency of this lawsuit, the Supreme Court decided Barr v. American Association of Political Consultants, Inc. , ––– U.S. ––––, 140 S.Ct. 2335, 207 L.Ed.2d 784 (2020) (" AAPC "). AAPC addressed the constitutionality of 47 U.S.C. § 227(b)(1)(A)(iii). This Court stayed this action until the Supreme Court issued AAPC . After its issuance, plaintiff filed a motion to lift the stay, which the Court granted. In AAPC , the Supreme Court held that 47 U.S.C. § 227(b)(1)(A)(iii) violated the Constitution, but that severance of part of the offending part of the statute cured the constitutional infirmity. Defendant now moves to dismiss the case for lack of subject matter jurisdiction on the basis that this Court lacks jurisdiction to preside over cases involving laws that are "unconstitutional and void." Plaintiff opposes the motion.

STANDARD OF REVIEW

When a court's subject matter jurisdiction is challenged under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the party seeking to invoke jurisdiction bears the burden of proof. McNutt v. General Motors Acceptance Corp. , 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ; Rogers v. Stratton Industries, Inc. , 798 F.2d 913, 915 (6th Cir. 1986). This burden is not onerous. Musson Theatrical, Inc. v. Federal Express Corp. , 89 F.3d 1244, 1248 (6th Cir. 1996). The party need only show that the complaint alleges a substantial claim under federal law. Id .

A 12(b)(1) motion to dismiss may constitute either a facial attack or a factual attack. United States v. Ritchie , 15 F.3d 592, 598 (6th Cir. 1994). Facial attacks question the sufficiency of the jurisdictional allegations in the complaint. Id . Thus, those allegations must be taken as true and construed in the light most favorable to the nonmoving party. Id . Factual attacks, however, challenge the actual fact of the court's jurisdiction. Id . In such cases, the truthfulness of the complaint is not presumed. McGee v. East Ohio Gas Co. , 111 F.Supp.2d 979, 982 (S.D. Ohio 2000) (citing Ohio Nat'l Life Ins. Co. v. United States , 922 F.2d 320 (6th Cir. 1990) ). Instead, the Court may weigh any evidence properly before it. Morrison v. Circuit City Stores, Inc. , 70 F.Supp.2d 815, 819 (S.D. Ohio 1999) (citing Ohio Nat'l , 922 F.2d 320 ; Rogers , 798 F.2d 913 ).

When presented with a facial attack, the non-moving party "can survive the motion by showing any arguable basis in law for the claim made." Musson Theatrical , 89 F.3d at 1248. Thus, such a motion will be granted only if, taking as true all facts alleged in the complaint, the Court is without subject matter jurisdiction to hear the claim. Matteson v. Ohio State University , 2000 WL 1456988 *3 (S.D. Ohio Sept. 27, 2000).

ANALYSIS

In AAPC , the Court addressed the constitutionality of 47 U.S.C. § 227(b)(1)(A)(iii). That provision as originally enacted in 1991, "prohibited almost all robocalls to cell phones." AAPC , 140 S.Ct. at 2344. In 2015, Congress amended the provision, as follows:

(a) IN GENERAL—Section 227(b) of the Communications Act of 1934 ... is amended--

(1) in paragraph (1)--

(A) in subparagraph (A)(iii), by inserting ‘unless such call is made solely to collect a debt owed to or guaranteed by the United States’ after ‘charged for the call.’

The effect of this "government-debt" exception is to allow government debt collectors to place robocalls.

The plaintiffs in AAPC consisted of various organizations that participate in the political system and desired to make robocalls in support of their political issues. Plaintiffs sought an injunction prohibiting enforcement of Section 227(b)(1)(A)(iii) on the grounds that it is an unconstitutional content-based restriction that favors certain speech over other speech. The district court determined that the statute indeed contained a content-based restriction to which strict scrutiny must be applied. The district court went on to decide that the statute as written survived strict scrutiny. On appeal, the Fourth Circuit recognized that plaintiffs mounted a facial challenge and agreed with the district court that the provision as drafted is an unconstitutional content-based restriction requiring the application of strict scrutiny. The circuit court disagreed, however, that the government satisfied this exacting standard. The court conducted a severability analysis and determined that severance of the government-debt exception comported with congressional intent. Absent the government-debt exception, the remainder of the provision passes constitutional muster.

The government appealed to the Supreme Court. In a deeply fractured plurality opinion, the Supreme Court determined that the provision containing the government-debt exception is a content-based restriction. Because at least five Justices agreed that the statute failed either strict or intermediate scrutiny, the Court upheld the judgment of the Fourth Circuit.

The Supreme Court next turned to severance. Although plaintiffs did not request severance, the Supreme Court nonetheless proceeded to analyze whether severance of the offending provision of the statute would be proper. Two Justices joined Justice Kavanaugh's plurality opinion, concluding that severance of the government-debt exception is proper. Four additional Justices concurred in the judgment. Justice Gorsuch dissented and Justice Thomas joined in the dissent on the basis that severance is not proper in the context of the case.

Defendant argues that, although the Supreme Court severed the unconstitutional portion of the statute, severance can only be applied prospectively. According to defendant, the statute is enforceable for robocalls made from 1991-2015, i.e. , the time period prior to the enactment of the government-debt exception, as well as for calls made after the date of the final judgment in AAPC . But for robocalls made from 2015 through entry of final judgment in AAPC , the statute remains unconstitutional on its face and cannot be enforced against any robocaller, including defendant. It appears that defendant makes this argument only with respect to cases currently pending. Defendant concedes that the analysis is different for cases that proceeded through final judgment prior to the Supreme Court's pronouncement in AAPC .

Plaintiff disputes defendant's argument. According to plaintiff, language in the plurality opinion supports the conclusion that severance of the government-debt exception applies retroactively to all currently pending cases. Plaintiff argues that the entire point of severance is to invalidate only a portion of a statute, not invalidate a statute in its entirety–even if only for a period of time. Plaintiff further notes that AAPC relies on other Supreme Court cases establishing this proposition.

Upon review, the Court agrees with defendant that severance of the government-debt exception applies only prospectively. AAPC sets forth the general law regarding severance:

The Court's cases have instead developed a strong presumption in favor of severability. The Court presumes that an unconstitutional provision in a law is severable from the remainder of the law or statute. Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.

AAPC , 140 S.Ct. at 2350 (internal citations and quotations omitted).

The Court's presumption of severability supplies a workable solution–one that allows courts to avoid judicial policymaking or de facto judicial legislation in determining just how much of the remainder of a statute should be invalidated. The presumption also reflects the confined role of the Judiciary in our system of separated powers–stated otherwise, the presumption manifests the judiciary's respect for Congress's legislative role by keeping courts from unnecessarily disturbing a law apart from invalidating the provision that is unconstitutional.... Those and other considerations, taken together, have steered the Court to a presumption of severability. Applying the presumption, the Court invalidates and severs unconstitutional provisions from the remainder of the law rather than razing whole statutes of Acts of Congress.

Id . at 2351.

"Before severing a provision and leaving the remainder of the law intact, the Court must determine that the remainder of the statute is capable of functioning independently and thus would be fully operative as a law." Id . (Internal citations and quotations omitted). Because the statute is capable of functioning independently of the government-debt exception, the unconstitutional clause may be severed from the remainder of the provision.

The plurality opinion...