Moskowitz v. Am. Sav. Bank

• Decision Date: 10 June 2022
• Docket Number: 20-15024
• Citation: 37 F.4th 538
• Parties: Craig MOSKOWITZ, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. AMERICAN SAVINGS BANK, F.S.B., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

37 F.4th 538

Craig MOSKOWITZ, on behalf of himself and all others similarly situated, Plaintiff-Appellant,

v.AMERICAN SAVINGS BANK, F.S.B., Defendant-Appellee.

No. 20-15024

United States Court of Appeals, Ninth Circuit.

Submitted February 11, 2021^* San Francisco, California

Filed June 10, 2022

Aytan Y. Bellin, White Plains, New York, for Plaintiff-Appellant.

Steven D. Allison, Samrah R. Mahmoud, Sheila Z. Chen, and Stephanie V. Phan, Troutman Sanders LLP, Irvine, California, for Defendant-Appellee.

Before: Kim McLane Wardlaw and Carlos T. Bea, Circuit Judges, and James David Cain, Jr.,^** District Judge.

Opinion by Judge Bea ;

Partial Concurrence and Partial Dissent by Judge Wardlaw

BEA, Circuit Judge:

Craig Moskowitz filed a class action against American Savings Bank, F.S.B. ("ASB"), in which he claimed ASB sent text messages to his mobile phone without the consent required by the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. The district court in Hawaii granted summary judgment in favor of ASB. The district court also granted ASB's motion for an award of "costs" under Federal Rule of Civil Procedure 41(d) (" Rule 41(d)"), for costs which ASB incurred in defending the identical litigation commenced by Moskowitz in the District of Connecticut, in which Moskowitz entered a voluntary dismissal, following which the Connecticut district court dismissed the case, "without costs to any party." Finally, the Hawaii district court decided "costs" under Rule 41(d) included the attorney's fees incurred by ASB in defending the Connecticut litigation and therefore included such attorney's fees in the award of "costs." Moskowitz appeals.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court's grant of summary judgment. We also affirm the district court's award of costs, but we reverse the district court's award of attorney's fees as "costs" under Rule 41(d) as a matter of right.

I. FACTUAL BACKGROUND

ASB offers mobile text banking services to customers, so that such customers can perform banking functions on their mobile phones. ASB maintains a "short code" for use for this service, 27244. A short code is a short (in this case, five digit) telephone number a business can use to send and receive text messages. ASB uses its short code to provide mobile banking services via text messages to customers who have enrolled their mobile phone numbers with ASB after using a multistep enrollment process.

ASB also receives text messages from mobile phone numbers of customers who are not enrolled in its program. These text messages might originate from ASB customers who wish to enroll, or from non-customers interested in ASB's services, or they might be accidental or intentionally mischievous misdials of the short code. ASB responds to these text messages automatically with a single message chosen from one of two standard responses. One response tells the sender of the text message how to stop communications from ASB, or how to contact ASB.¹ The other response is sent if the sender has texted "STOP." In that case, ASB tells the sender he is not subscribed to ASB, and that he will not receive alerts.²

Moskowitz was not a customer of ASB during the relevant period, May through July 2016. During that time, however, Moskowitz's mobile phone sent 11 text messages to ASB's short code number. Ten of the text messages were unrelated to ASB or its services, and ASB replied with the first responsive text option. The remaining text message from Moskowitz to ASB consisted of the word "STOP" to which ASB replied with the second responsive text option. These reply texts were the only text messages ASB sent to Moskowitz's mobile phone.

II. PROCEDURAL BACKGROUND

After he received these reply text messages, Moskowitz, a Connecticut resident, filed a TCPA federal class action suit in the District of Connecticut. Moskowitz claimed ASB's reply texts put the company afoul of a section of the TCPA which prohibits calling a mobile phone by use of automatic call generating capabilities absent the call recipient's prior express consent. ASB moved to dismiss the suit for lack of personal jurisdiction over it by the Connecticut district court. ASB argued that it is a Hawaii company without minimum contacts in Connecticut, and that Moskowitz's cell phone had an area code, 914, which applied to the New York geographic area, not Connecticut, such that ASB's text responses had gone to New York, not Connecticut; thus, ASB had not availed itself of Connecticut; hence, the district court did not have jurisdiction over ASB.

Moskowitz did not respond to ASB's motion to dismiss by answer or other responsive pleading. Rather, he filed a notice of voluntary dismissal under Federal Rule of Civil Procedure 41(a) in the Connecticut district court. ASB did not respond to Moskowitz's motion for voluntary dismissal, and ASB did not request the Connecticut district court award it attorney's fees per Federal Rule of Civil Procedure Rule 41(a) as a term of granting Moskowitz's motion. The Connecticut district court then dismissed the case, in an order which did not award costs to either party. Moskowitz v. Am. Sav. Bank, F.S.B. , Civil No. 3:17-00307 AWT (D. Conn. May 19, 2017), ECF 24 ("The case is DISMISSED without prejudice and without costs to any party.").

Moskowitz then filed a suit in the District of Hawaii with the same claims, against the same parties, and based on almost identical factual allegations.³ ASB filed a motion for summary judgment, and it moved for costs under Rule 41(d) to recoup the costs it had incurred defending the earlier suit in Connecticut.

The district court in Hawaii granted ASB's motion for summary judgment, concluding that each text message from Moskowitz's mobile phone constituted prior express consent for each of ASB's reply texts to his mobile phone. The district court also granted ASB's motion for costs under Federal Rule of Civil Procedure Rule 41(d) after finding that the two complaints were almost identical, and that the Connecticut litigation had not advanced the Hawaii case. Citing decisions by other district courts in our circuit, the district court awarded attorney's fees to ASB, holding that an award of costs under Rule 41(d) included attorney's fees, and that Rule 41(d) did not require a showing of "subjective bad faith, vexatiousness, or forum shopping" to award attorney's fees as "costs."

III. DISCUSSION

Moskowitz appeals both the district court's grant of summary judgment in favor of ASB on his TCPA claim, and its inclusion of attorney's fees as part of its Rule 41(d) award of costs to ASB.

A. Grant of Summary Judgment

This court reviews a district court's grant of summary judgment de novo. Van Patten v. Vertical Fitness Grp., LLC , 847 F.3d 1037, 1041 (9th Cir. 2017).

Moskowitz argues the district court erred in granting summary judgment for ASB because ASB did not have the consent required under the TCPA to send the responsive text messages to Moskowitz. We have already determined that the type of message Moskowitz sent ASB provided the express consent required for each of ASB's responsive text messages. See Van Patten , 847 F.3d at 1043–45. "Express consent is not an element of a plaintiff's prima facie case but is an affirmative defense[,]" and it is a "complete defense" to a TCPA claim. Id. at 1044.

The TCPA prohibits making calls to any cellular number by using a system that dials telephone calls automatically or by using an "artificial or prerecorded voice'" unless the caller received "prior express consent" from the recipient. 47 U.S.C. § 227(b).⁴ The TCPA does not define prior express consent. In Van Patten , we adopted the FCC's interpretation of the text: that a person who knowingly releases his number consents to be called at that number, and that consent is "effective" where the responsive messages relate to the same subject or type of transaction as the messages that led to the response. 847 F.3d at 1044–45 ; In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991 , 7 F.C.C. Rcd. 8752, 8769 (Oct. 16, 1992).

Moskowitz argues that we have, and the Van Patten court had, discretion to refuse to employ the FCC's order interpreting "prior express consent." But Van Patten is a published opinion and binding precedent. See Miller v. Gammie , 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (holding a published opinion may be overruled by a three-judge panel only when it is clearly irreconcilable with an intervening higher authority). Further, Van Patten 's reasoning—that providing a telephone number to a business as part of telephone communication to that business constitutes express consent to a responsive contact from that business within the scope of that communication—is even more directly applicable to the facts of this case than were the facts of Van Patten . 847 F.3d at 1046 (explaining that "the transactional context matters in determining the scope of a consumer's consent to contact").

In that case, Van Patten's former gym contacted him offering to reactivate his membership after he had cancelled the membership, but he had not revoked his prior express consent for the gym to contact him about his membership. Id. at 1046–47. In this case, unlike Van Patten, it was Moskowitz who initiated contact with ASB, and ASB that automatically replied to each contact with a single responsive text message to confirm receipt and provide information that the short code was ASB's and how to stop or continue communication. By sending text messages to ASB's short code, Moskowitz expressly consented to receive reply text messages. Each informative and confirmatory reply text message from ASB falls within the scope of Moskowitz's text message initiating contact, and therefore, "the scope of [Moskowitz's] consent to contact." Id. at 1046.

Thus, the district court did not err in applying Van Patten and finding for ASB, and we affirm the grant of summary judgment for ASB.

B. "Costs" under Rule 41(d)

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