Stoutt v. Travis Credit Union

• Decision Date: 12 January 2021
• Docket Number: No. 2:20-cv-01280 WBS AC,2:20-cv-01280 WBS AC
• Parties: Shawntel STOUTT, Plaintiff, v. TRAVIS CREDIT UNION, Defendant.
• Court: U.S. District Court — Eastern District of California

512 F.Supp.3d 1048

Shawntel STOUTT, Plaintiff,

v.TRAVIS CREDIT UNION, Defendant.

No. 2:20-cv-01280 WBS AC

United States District Court, E.D. California.

Signed January 12, 2021

Russell Snow Thompson, IV, Thompson Consumer Law Group, Mesa, AZ, for Plaintiff.

Ryan D. Watstein, PHV, Pro Hac Vice, Kabat Chapman & Ozmer LLP, Atlanta, GA, Paul A. Grammatico, Kabat Chapman & Ozmer LLP, Los Angeles, CA, for Defendant.

ORDER RE DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS

WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE

In this putative class action, plaintiff Shawntel Stoutt claims that defendant Travis Credit Union violated § 227(b)(1)(A)(iii) of the Telephone Consumer Protection Act of 1991 ("TCPA"), which prohibits the use of an automatic telephone dialing system ("ATDS") to call cell phones. See 47 U.S.C. § 227(b)(1)(A)(iii). Plaintiff alleges that defendant used an ATDS to call her cell phone number at least 18 times between January 24, 2019, and February 26, 2020. (See Compl. ¶¶ 20-32 (Docket No. 1).) Defendant has filed a motion for judgment on the pleadings, arguing that the court lacks subject matter jurisdiction over plaintiff's claim following the Supreme Court's ruling in Barr v. American Ass'n of Political Consultants, Inc., ––– U.S. ––––, 140 S. Ct. 2335, 207 L.Ed.2d 784 (2020) (hereinafter AAPC ).

I. Legal Standard

A. Judgment on the Pleadings

After the pleadings are closed, any party may move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). A motion brought under Rule 12(c) is "functionally identical" to one brought pursuant to Rule 12(b), and "the same standard of review applicable to a Rule 12(b) motion applies to its Rule 12(c) analog." Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). "[I]f a party raises an issue as to the court's subject matter jurisdiction on a motion for a judgment on the pleadings, the district judge will treat the motion as if it had been brought under Rule 12(b)(1)." San Luis Unit Food Producers v. United States, 772 F. Supp. 2d 1210, 1218 (E.D. Cal. 2011) (Wanger, J.) (citing 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1367 (3d ed. 2004) ; Rutenschroer v. Starr Seigle Commc'ns, Inc., 484 F. Supp. 2d 1144, 1147–48 (D. Haw. 2006) ), aff'd, 709 F.3d 798 (9th Cir. 2013).

B. Subject Matter Jurisdiction

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for "lack of jurisdiction over the subject matter." Federal courts are "courts of limited jurisdiction" and "possess only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). "The Constitution limits Article III federal courts' jurisdiction to deciding ‘cases’ and ‘controversies.’ " Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 835 (9th Cir. 2012) (quoting U.S. Const. art. III, § 2). The court's "role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary." Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc). The burden of establishing subject matter jurisdiction lies with the party asserting jurisdiction, and courts presume a lack of jurisdiction until the party proves otherwise. See Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673 ; Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).

II. Discussion

Defendant argues that the court lacks subject matter jurisdiction over plaintiff's claim because it is premised on a statute that was unconstitutional and ineffective at the time of defendant's alleged phone calls. (See Def.'s Mot. for Judgment on the Pleadings ("Def.'s Mot.") at 5-10 (Docket No. 12).) Plaintiff responds that the TCPA was effective, at least as to defendant's activities, during the relevant period. (See Pl.'s Opp'n at 9-11 (Docket No. 17).)

Congress enacted the TCPA in 1991. AAPC, 140 S. Ct. at 2344. "In plain English, the TCPA prohibit[s] almost all robocalls to cell phones." Id. But in November 2015, Congress amended the TCPA to allow robocalls made to collect government debt (the "government debt exception"):

(b) Restrictions on use of automated telephone equipment

(1) Prohibitions

It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States--

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice--

* * *

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States;

47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added).

In AAPC, the Supreme Court addressed the constitutionality of the TCPA. See 140 S. Ct. at 2335. There, a group of political and nonprofit organizations sought a declaratory judgment that the government-debt exception unconstitutionally favored debt-collection speech over political and other speech in violation of the First Amendment. See id. at 2343. The case made its way to the Supreme Court, and in a fractured decision,¹ six Justices agreed that, in adding the government-debt exception to the statute in 2015, Congress had impermissibly favored debt-collection speech over political and other speech in violation of the First Amendment. See id. at 2343. Seven Justices agreed that the proper remedy for this constitutional infirmity was to invalidate and sever the government debt exception, leaving the rest of the TCPA intact. See id.

The issue here is whether the Supreme Court's decision in AAPC forecloses federal courts from asserting subject matter jurisdiction over alleged violations of the TCPA committed while the government-debt exception was affixed to the face of the statute--that is, between November 2015 and July 6, 2020. Defendant urges this court to interpret AAPC as an adjudication that the entirety of § 227(b)(1)(A)(iii) was unconstitutional and void until the Supreme Court severed the offending government-debt exception to preserve the rest of the law. See Creasy v. Charter Commc'ns, Inc., Civil Action No. 20-1199, 489 F.Supp.3d 499, 507-08 (E.D. La. Sep. 28, 2020) ; ("the entirety of the pre-severance version of § 227(b)(1)(A)(iii) is void because it itself was repugnant to the Constitution before the Supreme Court restored it to constitutional health in AAPC" (quoting Seila Law LLC v. CFPB, ––– U.S. ––––, 140 S. Ct. 2183, 2208, 207 L.Ed.2d 494 (2020) ).

Because federal courts lack jurisdiction over claims based upon unconstitutional statutes, see Ex Parte Siebold, 100 U.S. 371, 377, 25 L.Ed. 717 (1879) ("if the laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the causes"), defendant argues that this court lacks subject matter jurisdiction even over claims based on alleged violations of the TCPAs' general prohibition on robocalls that were committed while the government-debt exception was appended to the law. (See Def.'s Mot. at 3-4.)

Three out-of-circuit district courts have effectively adopted defendant's argument, holding that AAPC divests federal courts of jurisdiction over TCPA claims concerning robocalls made between November 2015 and the date of AAPC's issuance, even when those robocalls were not made for the purposes of collecting government debt. See Creasy, 489 F.Supp.3d 499 ; Lindenbaum v. Realgy, LLC, No. 1:19 CV 2862, 497 F.Supp.3d 290 (N.D. Ohio Oct. 29, 2020) ; Hussain v. Sullivan Buick-Cadillac-GMC Truck, Inc., No. 5:20-cv-38-Oc-30PRL, 506 F.Supp.3d 1242 (M.D. Fla. Dec. 11, 2020).

On the other side of the ledger, the two district courts in this circuit that have addressed the question have effectively held the opposite--that the TCPA remains enforceable, at least against non-government debt collectors, as to calls made between November 2015 and July 6, 2020. See Shen v. Tricolor Cal. Auto Grp., LLC, No. CV 20-7419 PA (AGRx), 2020 WL 7705888 (C.D. Cal. Dec. 17, 2020) ; Trujillo v. Free Energy Sav. Co., LLC, No. 5:19-cv-0272-MCS-SP, 2020 WL 8184336, 2020 U.S. Dist. LEXIS 239730 (C.D. Cal. Dec. 21, 2020).

Several other district courts in this circuit have assumed that the constitutionally inoffensive portion of the statute remains viable as to these calls. See, e.g., Canady v. Bridgecrest Acceptance Corp., No. CV-19-04738-PHX-DWL, 2020 WL 5249263, at *5 (D. Ariz. Sep. 3, 2020) ("Although [ AAPC ] struck down a part of the TCPA not at issue in this case, the bulk of the TCPA lives on."); Komaiko v. Baker Techs., Inc., No. 19-cv-03795-DMR, 2020 WL 5104041, at *5 (N.D. Cal. Aug. 11, 2020) ("[T]he [Supreme] Court severed the government-debt exception from the remainder of the statute, leaving the call restriction otherwise intact. Because the government-debt exception is not at issue in this case, the decision in [ AAPC ] does not impact Plaintiffs' claims."). One out-of-circuit district court, citing other courts' assumption that the statute remains enforceable, concluded that it had jurisdiction over such claims. Abramson v. Fed. Ins. Co., No. 8:10-cv-2523-T-60AAS, 2020 WL 7318953, at *3-4 (M.D. Fla. Dec. 11, 2020) (collecting cases).

Central to the parties' arguments is a footnote in Justice Kavanaugh's plurality opinion:

As the Government acknowledges, although our decision means the end of the government-debt exception, no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception and before the entry of final judgment by the District Court on remand in this

...