Mehaffey v. Navient Solutions, LLC
| Decision Date | 17 June 2021 |
| Docket Number | Civil Action No. 19-cv-00197-REB-NRN |
| Parties | Tina MEHAFFEY, Plaintiff, v. NAVIENT SOLUTIONS, LLC, Defendant. |
| Court | U.S. District Court — District of Colorado |
Joshua Adam Markovits, Stephen F. Taylor, Sergei Lemberg, Lemberg Law, LLC, Wilton, CT, for Plaintiff.
Dennis Norman Lueck, Jr., Hinshaw & Culbertson, LLP, New York, NY, Jordan S. O'Donnell, Hinshaw & Culbertson LLP, Boston, MA, Whitney S. Goldin, Hinshaw & Culbertson LLP, Chicago, IL, for Defendant.
The matters before me are (1) Plaintiff's Motion for Summary Judgment [#59],1 filed September 11, 2020; and (2) Defendant's Cross-Motion for Summary Judgment and Incorporated Memorandum of Law [#64], filed October 1, 2020. I grant defendant's motion, deny plaintiff's motion, and dismiss plaintiff's claims herein.
I have jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal question).
Summary judgment is proper when 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) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) ; Farthing v. City of Shawnee , 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ; Farthing , 39 F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of a genuine factual dispute. Concrete Works, Inc. v. City & County of Denver , 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied , 514 U.S. 1004, 115 S.Ct. 1315, 131 L.Ed.2d 196 (1995). By contrast, a movant who bears the burden of proof must submit evidence to establish every essential element of its claim or affirmative defense. See In re Ribozyme Pharmaceuticals, Inc. Securities Litigation , 209 F.Supp.2d 1106, 1111 (D. Colo. 2002). In either case, once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Concrete Works , 36 F.3d at 1518.2 All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services , 165 F.3d 1321, 1326 (10th Cir.), cert. denied , 528 U.S. 815, 120 S.Ct. 53, 145 L.Ed.2d 46 (1999).
This case arises from a series of phone calls defendant Navient Solutions, LLC ("Navient") made to a telephone number (the "-2283 number") which had been listed by Alexis Whitcomb on a 2014 application for a Federal Stafford Loan. Although Ms. Whitcomb, as part of her application, gave consent for Navient to contact her about the debt at that number, plaintiff, Tina Mehaffey, to whom the number was reassigned in July 2018, did not.
Between July 11 and November 16, 2018, Navient placed 34 calls to the-2283 number, using a prerecorded message. Ms. Mehaffey alleges that after receiving approximately five of these calls, she told Navient it had the wrong phone number; Navient counters that its call records do not show Ms. Mehaffey spoke to an agent in the time period she claims this notice was given. However, the parties do not dispute that on October 2, 2018, Ms. Mehaffey did speak to an agent and relayed that Navient had the wrong number. Nevertheless, because the agent failed to take all the steps necessary to invalidate the number at that time, Navient placed another twenty phone calls to the-2283 number thereafter. Claiming these communications violated the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227, Ms. Mehaffey filed this lawsuit.
There is no question that Ms. Mehaffey can prove the essential elements of a claim under the TCPA. See Rallo v. Palmer Administrative Services, Inc. , 2019 WL 1468411 at *2 (D. Colo. Apr. 3, 2019) (). Each violation of the statute carries a penalty of either actual damages or $500, whichever is greater, and willful or knowing violations of the statute may incur an additional penalty up to three times the amount of damages. 47 U.S.C. § 227(b)(3)(B). See also LaVigne v. First Community Bancshares, Inc. , 215 F.Supp.3d 1138, 1141 (D.N.M. 2016). The only real question, therefore, is whether Navient's affirmative defense is viable.3 I find that it is.
As originally enacted in 1991, the prohibition of the TCPA on "robocalls" was universal.4 See Barr v. American Association of Political Consultants, Inc ., ––– U.S. ––––, 140 S.Ct. 2335, 2344, 207 L.Ed.2d 784 (2020) [hereinafter "AAPC "] (). As part of the Bipartisan Budget Act of 2015, however, Congress amended this section to provide an exception for calls "made solely to collect a debt owed to or guaranteed by the United States." Pub. L. No. 114-74 § 301, 129 Stat. 584, 588 (Nov. 2, 2015). All the calls which are the subject of this lawsuit were made while the exception was part of the statute.
Navient relied on the government debt exception in support of its prior summary judgment motion, and I agreed that it was entitled to the benefit of the exception. (Order at 2-3 [#53], filed February 13, 2021.) Nevertheless, I noted that at least two federal circuit courts recently had found the government debt exception unconstitutional as a content-based restriction on free speech. Given that the United States Supreme Court was poised imminently to hear arguments in these cases, I denied the parties’ cross-motions for summary judgment and stayed the case pending further guidance from the Court. (Id. at 4-6.)
Subsequently, the Court issued its relevant decision in AAPC . It agreed with the lower court's determination that the government debt exception constituted a content-based restriction on the First Amendment right of free speech which did not withstand scrutiny. Although six Justices agreed with that conclusion, the decision was deeply fractured. Writing for the plurality, Justice Kavanaugh, joined by Chief Justice Roberts and Justice Alito, found the exception failed under either strict or intermediate scrutiny, but concluded the offending provision could be severed from the remainder of the statute, leaving the TCPA as originally enacted intact. AAPC , 140 S.Ct. at 2343. Four additional justices concurred in that result. See id. at 2357 (Sotomayor, J.); id. at 2363 (Breyer, J., joined by Ginsburg and Kagan, JJ.).5 Justice Gorsuch, joined by Justice Thomas, agreed the law was unconstitutional, but dissented from the conclusion that severance was the proper remedy in the context of the case. Id. at 2366 (Gorsuch, J., concurring in part and dissenting in part).
Id. at 2355 n.12. Yet only the three justices who signed on to the entirety of Justice Kavanaugh's opinion concurred in that view; the four Justices who concurred only in the result did not. For his part, Justice Gorsuch in dissent pointed out that "a holding that shields only government-debt collection callers from past liability under an admittedly unconstitutional law would wind up endorsing the very same kind of content discrimination we say we are seeking to eliminate." Id. at 2366 (Gorsuch, J., concurring in part and dissenting in part) (emphasis in original).
Obviously, both these statements are dicta, and therefore not binding, even if either one had garnered the approbation of a majority of the Justices.6 See Cohens v. Virginia , 19 U.S. (6 Wheat.) 264, 399, 5 L.Ed. 257 (1821) (); Obiter dictum , BLACK'S LAW DICTIONARY (10th ed. 2014) ("A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive)."). As neither of these pronouncements was issued in an opinion whose rationale garnered the support of a majority of the Court, the effort to discern which of these opposing statements is more persuasive presents particularly complex and difficult questions. The effort to resolve those questions has been hampered in this case because neither of the parties apparently appreciated or acknowledged these issues, much less bothered to address them. I therefore find I must return to first principles.7
To begin, I note that judicial decisions apply retroactively. The Constitution entrusts to the legislative branch the power to make law, U.S. CONST . art. I, § 1, while it is "the province and duty of the judicial department to...
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