Victory Processing, LLC v. Michael

• Decision Date: 06 August 2018
• Docket Number: Case No: 17-CV-109-ABJ
• Citation: 333 F.Supp.3d 1263
• Parties: VICTORY PROCESSING, LLC, and Dave Dishaw, Plaintiffs, v. Peter K. MICHAEL, in his official capacity as Attorney General for the State of Wyoming, Defendant.
• Court: U.S. District Court — District of Wyoming

333 F.Supp.3d 1263

VICTORY PROCESSING, LLC, and Dave Dishaw, Plaintiffs,

v.Peter K. MICHAEL, in his official capacity as Attorney General for the State of Wyoming, Defendant.

Case No: 17-CV-109-ABJ

United States District Court, D. Wyoming.

Signed August 6, 2018

Blake E. Johnson, Pro Hac Vice, Katherine J. Spohn, Pro Hac Vice, Bruning Law Group, Lincoln, NE, Patrick J. Crank, Crank Legal Group, Cheyenne, WY, for Plaintiffs.

Ryan T. Schelhaas, Katherine "Adam" Leuschel, Rebecca J. Zisch, Wyoming Attorney General, Cheyenne, WY, for Defendant.

ORDER ON THE PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT PURSUANT TO F.R.C.P. 56(a)

Alan B. Johnson, United States District Judge

The parties brought this matter before the Court on cross motions for summary judgment. Plaintiffs Victory Processing, LLC and Dave Dishaw (collectively referred to as Victory Processing) filed Plaintiffs' Motion for Summary Judgment Pursuant to F.R.C.P. 56(a) (Victory Processing's Motion). ECF No. 22. Defendant Peter K. Michael in his official capacity as Attorney General for the State of Wyoming (Attorney General), filed a response in opposition (Attorney General's Response), ECF No. 26, to which Victory Processing replied (Victory Processing's Reply). ECF No. 28. The Attorney General filed Defendant's Motion for Summary Judgment. (Attorney General's Motion) ECF No. 24. Victory Processing filed a response in opposition (Victory Processing's Response), ECF No. 27, to which the Attorney General replied (Attorney General's Reply). ECF No. 29. Having considered both motions, the applicable law, and being otherwise fully advised, the Court FINDS and ORDERS as follows:

Background

Victory Processing is a company engaged in data gathering, political consulting and message dissemination projects. Doc. 23, p. 2. Victory Processing primarily achieves its work through reaching out to residents in various states using automated telephone systems or "robocalls" and conducting surveys. Doc. 1, ¶¶ 6, 8. They allege that potential clients have reached out to them, requesting their services and have inquired about conducting robocalls in the State of Wyoming. Id. at ¶ 7. However, Victory Processing has had to decline work with those clients because Wyo. Stat. § 6-6-104 prohibits commercial and political robocalls. Doc. 1, ¶¶ 11-12.The company has also had to refrain from conducting robocalls to improve their own database and consulting capabilities because Wyo. Stat. § 6-6-104 prohibits commercial and political robocalls. Id.

Although they are currently prohibited from robocalling, Victory Processing has expressed the desire to engage in future political speech and information gathering operations for themselves and on behalf of third parties through the use of robocalls. Doc. 23-1, ¶¶ 9 -10, 13-14; Doc. 1, ¶¶ 7, 10. As a result of the current ban on robocalls, Victory Processing claims to have suffered lost individual and business opportunities. Doc. 1, ¶ 11. Consequently, Victory Processing has requested summary judgment in their favor, as well as, prospective injunctive relief from enforcement under Wyo. Stat. § 6-6-104.

Standard of Review

Summary judgment is appropriate where "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). A dispute of fact is genuine if a reasonable juror could resolve the disputed fact in favor of either side. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute of fact is material if under the substantive law it is essential to the proper disposition of the claim. Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998). When the Court considers the evidence presented by the parties, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in the non-movant's favor." Anderson , 477 U.S. at 255, 106 S.Ct. 2505.

The party moving for summary judgment has the burden of establishing the nonexistence of a genuine dispute of material fact. Lynch v. Barrett , 703 F.3d 1153, 1158 (10th Cir. 2013). The moving party can satisfy this burden by either (1) offering affirmative evidence that negates an essential element of the nonmoving party's claim, or (2) demonstrating that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim. See Fed. R. Civ. P. 56(c)(1)(A)–(B).

Once the moving party satisfies this initial burden, the nonmoving party must support its contention that a genuine dispute of material fact exists either by (1) citing to particular materials in the record, or (2) showing that the materials cited by the moving party do not establish the absence of a genuine dispute. See id. The nonmoving party must "do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, to survive a summary judgment motion, the nonmoving party must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Further, when opposing summary judgment, the nonmoving party cannot rest on allegations or denials in the pleadings but must set forth specific facts showing that there is a genuine dispute of material fact for trial. See Travis v. Park City Mun. Corp. , 565 F.3d 1252, 1258 (10th Cir. 2009).

When considering a motion for summary judgment, the court's role is not to weigh the evidence and decide the truth of the matter, but rather to determine whether a genuine dispute of material fact exists for trial. Anderson , 477 U.S. at 249, 106 S.Ct. 2505. Credibility determinations are the province of the fact-finder, not the court. Id. at 255, 106 S.Ct. 2505.

Discussion

Both Victory Processing and the Attorney General have identified two issues in their briefs to the Court. First, does Victory Processing have standing to bring a First Amendment claim? Second, does Wyoming's robocall statute, Wyo. Stat. § 6-6-104, violate the First Amendment of the U.S. Constitution? The Court will address standing first.

1. Standing

There are two aspects of standing relevant to this case which must be satisfied, Article Three standing and the prudential standing requirements.

a. Article Three Standing

To establish standing, a plaintiff must demonstrate an injury in fact, a causal connection between the injury and the conduct complained of, and that it is likely the court can provide redress. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A plaintiff may demonstrate injury in fact by alleging "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by statute, and there exists a credible threat of prosecution thereunder." Ward v. Utah , 321 F.3d 1263, 1267 (10th Cir. 2003) (quoting Phelps v. Hamilton , 122 F.3d 1309, 1326 (10th Cir. 1997) ).

Victory Processing can establish an injury in fact, because the conduct of making political robocalls arguably affects a constitutional interest, is proscribed by Wyo. Stat. § 6-6-104 and there exists a credible threat that Victory Processing will be prosecuted if it begins making robocalls. This threat of prosecution also provides the causal connection between the injury and the conduct complained of. Finally, if the Court concludes that the § 6-6-104 is unconstitutional and strikes it down, that action will provide redress for Victory Processing.

b. Prudential Limits on Standing

The Attorney General rightfully points out that Victory Processing must also get beyond the requirement that litigants are generally prohibited from brining claims on behalf of a third party. Powers v. Ohio , 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). This doctrine is known as third party standing and in general the Supreme Court allows it if the plaintiff has an injury in fact sufficient to create a concrete interest in the outcome, a close relation to the third party, and that the third party is in some way hindered from being the plaintiff. Powers , 499 U.S. at 410–411, 111 S.Ct. 1364 (1991). The Attorney General is incorrect whoever, when he applies the Powers factors to a third party standing question in a First Amendment overbreadth case.

A plaintiff whose own speech is not threatened may challenge a statute as overly broad in violation of the First Amendment under a different standard than that set out in Powers. Secretary of State of Md. v. Joseph H. Munson Co., Inc. , 467 U.S. 947, 957, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). The Supreme Court explained that standing is allowed in these cases

for the benefit of society—to prevent the statute from chilling the First Amendment rights of other parties not before the Court. Munson's ability to serve that function has nothing to do with whether or not its own First Amendment rights are at stake. The crucial issues are whether Munson satisfies the requirement of ‘injury-in-fact,’ and whether it can be expected satisfactorily to frame the issues in the case.

Id at 958. Munson, therefore, articulates a different two element test for third party standing in a First Amendment overbreadth case, whether the plaintiff can demonstrate an injury in fact and satisfactorily frame the issues of the case. Id. This principle is reinforced in Virginia v. American Booksellers Ass'n, Inc. , 484 U.S. 383, 392–93, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (holding that a "judicial assumption that the statutes very existence may cause others not before the court to refrain from constitutionally protected speech" allows a plaintiff to proceed regardless of whether their own expression has been restricted). Finally, the Tenth Circuit has discussed this different treatment in First...