Roeder v. Collection Bureau of Hudson Valley, Inc.
| Decision Date | 31 August 2021 |
| Docket Number | 20 Civ. 06200 (JCM) |
| Parties | ADAM ROEDER, individually, and on behalf of all others similarly situated, Plaintiff, v. COLLECTION BUREAU OF THE HUDSON VALLEY, INC., a New York corporation, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Adam Roeder (“Plaintiff”) brings this class action pursuant to the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., alleging that the Collection Bureau of the Hudson Valley, Inc. (“Defendant”) and/or its agents transmitted unwanted solicitation telephone calls to Plaintiff and other class members using a prerecorded voice in the four years prior to the filing of the complaint on August 6, 2020 (the “Complaint”). (Docket No. 1). Defendant now moves pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for dismissal based on lack of jurisdiction (the “Motion”).[1] (Docket No. 26). Plaintiff opposed the Motion, (Docket No. 27), and Defendant replied, (Docket No 28). For the following reasons, Defendant's motion to dismiss is denied.
For purposes of resolving the instant motion, the Court accepts as true the facts set forth in Plaintiff's Complaint. See Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). Defendant is a private debt collection agency headquartered in Newburgh, New York that conducts business throughout the United States. (Docket No. 1 ¶¶ 2 14). As part of that business, Defendant contacts consumers without their consent to collect on their debts using prerecorded voice messages. (Id. ¶¶ 15-16, 20). Defendant also engages in a practice called “skip-tracing, ” wherein its agents “track down consumers with outstanding debts by calling [other] consumers who may . . . assist [Defendant] in reaching these delinquent consumers.” (Id. ¶¶ 16, 21).
Plaintiff received three unwanted calls from Defendant on his cellular phone over the span of about five months. (Id. ¶¶ 24-34). The first call occurred in or around December 2019 or January 2020. (Id. ¶ 24). Although Plaintiff did not answer it, he “looked up” the phone number on the internet and identified it as belonging to Defendant. (Id. ¶¶ 24-25). Therefore, he called Defendant's main office line and told the agent who answered that the call “was not for him.” (Id. ¶¶ 25-26). The second call occurred on May 26, 2020, and again, Plaintiff did not answer it. (Id. ¶ 28). However, this time, Defendant left a prerecorded message in Plaintiff's voicemail box requesting that the recipient of the message contact Defendant's office about its debt collection efforts. (Id. ¶ 29). Plaintiff received the final call on June 2, 2020, wherein he spoke with a live agent who identified herself as “with ‘[Defendant].'” (Id. ¶¶ 31-33). Plaintiff told her that he had already asked for the calls to stop, and the agent apologized and advised she would remove his phone number from Defendant's system. (Id. ¶ 33). Plaintiff never provided his cellular phone number to Defendant or otherwise consented to receive such calls. (Id. ¶ 34).
Plaintiff seeks injunctive relief and damages on behalf of himself and “[a]ll persons in the United States[, ] who[, ] from four years prior to the filing of the [Complaint] through class certification, ” received calls on their cellular phones from Defendant or its agents “using a prerecorded voice, ” (1) without prior consent, or (2) “for whom Defendant claims . . . [it] obtained the person's consent or cell[ular] phone number in the same manner as Defendant claims [it] . . . obtained Plaintiff's consent or cell[ular] phone number.” (Id. ¶¶ 37, 46-50).
“A federal court has subject matter jurisdiction over a cause of action only when it ‘has authority to adjudicate the cause' pressed in the complaint.” Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008), rev'd en banc on other grounds, 585 F.3d 559 (2d Cir. 2009) (quoting Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 425 (2007)). “Determining the existence of subject matter jurisdiction is a threshold inquiry, . . . and a claim is ‘properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.'” Id. (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).
Article III of the Constitution “limits the subject matter jurisdiction of federal courts to actual ‘cases' or ‘controversies.'” Marcavage v. City of New York, 689 F.3d 98, 103 (2d Cir. 2012) (quoting U.S. Const. art. III, § 2, cl. 1); see also Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (). In addition, “[a]n act of [C]ongress repugnant to the [C]onstitution cannot become a law, ” and “[t]he courts of the U[nited] States are bound to take notice of the [C]onstitution.” Marbury v. Madison, 5 U.S. 137, 138 (1803). Therefore, where a law or statute is “unconstitutional and void, [a court] acquire[s] no jurisdiction of the causes” of action thereunder. See Ex parte Siebold, 100 U.S. 371, 377 (1880); see also Montgomery v. Louisiana, 577 U.S. 190, 202-03 (2016), as revised (Jan. 27, 2016). Similarly, “once a statute has been declared unconstitutional, the federal courts thereafter have no jurisdiction over alleged violations (since there is no valid ‘law of the United States' to enforce).” United States v. Baucum, 80 F.3d 539, 540-41 (D.C. Cir. 1996); see also Baker v. Carr, 369 U.S. 186, 198 (1962) ( that “[i]n the instance of lack of jurisdiction the cause either does not ‘arise under' the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. III, s 2), or is not a within the meaning of that section; or the cause is not one described by any jurisdictional statute”).
There are two types of motions to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”): (1) “facial challenge[s] based on the pleadings[;]” and (2) “factual challenge[s] based on extrinsic evidence.” Guadagno v. Wallack Ader Levithan Assoc., 932 F.Supp. 94, 95 (S.D.N.Y. 1996) (emphases in original). Where, as here, the Motion is a facial challenge and no facts are in dispute, “the district court must take all uncontroverted facts in the complaint . . . as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon, 752 F.3d at 243; see also Rubinstein & Assocs., PLLC v. Entrepreneur Media, Inc., 20-CV-4173 (RPK) (ST), 2021 WL 3602998, at *3 (E.D.N.Y. Aug. 13, 2021). Both types of challenges require the plaintiff to “prove by a preponderance of the evidence that [subject matter jurisdiction] exists.” See Makarova, 201 F.3d at 113; see also Latino Quimica-Amtex S.A. v. Akzo Nobel Chemicals B.V., No. 03 Civ. 10312(HBDF), 2005 WL 2207017, at *4 (S.D.N.Y. Sept. 8, 2005).
Defendant argues that the Court lacks jurisdiction over the instant action pursuant to Barr v. Am. Ass'n of Pol. Consultants, Inc, 140 S.Ct. 2335 (2020), wherein the Supreme Court declared unconstitutional 47 U.S.C. § 227(b)(1)(A)(iii), the subsection of the TCPA that forms the basis of Plaintiff's claims. (Docket Nos. 26 at 4-5, 6-14; 28 at 3-8; see also Docket No. 1 ¶ 45). Plaintiff responds that the Court retains jurisdiction because Barr did not invalidate the entirety of § 227(b)(1)(A)(iii). (Docket No. 27 at 1-6). Rather, the court in Barr found unconstitutional and severed an exception to § 227(b)(1)(A)(iii) for government debt collectors which is inapplicable to this lawsuit, thus leaving the Court's jurisdiction intact. (Id. at 1-2, 620). The Court agrees that because Barr excised the government debt exception from § 227(b)(1)(A)(iii) and Plaintiff's case is premised on the remainder of that provision, the Court retains jurisdiction.
The TCPA bars “any person” from “mak[ing] any call . . . using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . or any service for which the called party is charged for the call.” 47 U.S.C. § 227(b)(1)(A)(iii). This language, known as the “robocall restriction, ” “prohibit[s] almost all robocalls to cell phones.” See Barr, 140 S.Ct. at 2344.
The original TCPA was enacted in 1991. See Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, § 1462, 105 Stat. 2394 (1991) (). In 2015, however, Congress amended § 227(b)(1)(A)(iii) to except government debt collectors from the robocall restriction (the “2015 Amendment”). See Bipartisan Budget Act of 2015, Title III, Sec. 301, 129 Stat 584, 588 (2015). The revised language provided, in relevant part:
47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added).
In Barr, a group of political and...
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