Cheng v. Speier

609 F.Supp.3d 1046

Clyde CHENG, on behalf of himself and all others similarly situated, Plaintiff,

v.Congresswoman Jackie SPEIER, Defendant.

Case No. 22-cv-00083-SI

United States District Court, N.D. California.

Signed July 4, 2022

Mark Louis Javitch, Javitch Law Office, San Mateo, CA, for Plaintiff.

Michael A. Keough, The United States Attorney's Office, San Francisco, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST CAUSE OF ACTION WITHOUT LEAVE TO AMEND AND DECLINING SUPPLEMENTAL JURISDICTION OVER STATE LAW CLAIMS

Re: Dkt. No. 18

SUSAN ILLSTON, United States District Judge On June 24, 2022, the Court held a hearing on defendant Congresswoman Jackie Speier's motion to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). For the reasons set forth below, the Court GRANTS the motion as follows: plaintiff's cause of action under the Telephone Consumer Protection Act is DISMISSED without leave to amend, and the Court declines supplemental jurisdiction over the state law causes of action.

BACKGROUND

On January 6, 2022, plaintiff Clyde Cheng filed a class action complaint against defendant Congresswoman Jackie Speier, who represents California's 14th Congressional District. Cheng filed this lawsuit "to stop [Congresswoman Speier] from placing telephone calls that play her prerecorded voice without first obtaining permission, and to obtain redress for all persons injured by her conduct." Compl. ¶ 1 (Dkt. No. 1). Cheng asserts three causes of action against Congresswoman Speier in both her official and individual capacities: (1) Violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b) ; (2) Violation of the Unlawful Prong of the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 ; and (3) Violation of the Unfair Prong of the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200. The proposed TCPA class is defined as "all persons in the United States who: (1) from the last 4 years to present (2) Defendant called (3) on his or her cellular telephone." Id. ¶ 30.

Between November 2020 and July 2021, Cheng received four calls on his cellular phone from Congresswoman Speier inviting him to participate in town halls. Id. ¶¶ 21-24. The first call, received on November 23, 2020, was a prerecorded voice that said,

"Hello, this is Jackie Speier, your Congresswoman. I'm calling first to wish you a blessed Thanksgiving, I know it's been a really tough year for everybody, and secondly, to invite you to participate in my town hall that is going to provide an update on the coronavirus you should expect a phone call to this number on Tuesday, Number 24 at 6 p.m. If you would prefer to participate from a different phone with do so my calling 866-383-2725 at the time of the event. Or, you can stream the event by going to my speier.house.gov/live or to my Facebook page. If you have any questions you can call my office at 650-342-0300. Thank you."

Id. ¶ 21. Cheng received similar calls about Congresswoman Speier's town halls on November 24, 2020, July 13, 2021, and July 14, 2021. Id. ¶¶ 22-24. Cheng alleges that he never consented to receive calls from Congresswoman Speier and that he "tried to opt-out but there were no instructions on how to do so." Id. ¶¶ 24-25.

Cheng reported the unsolicited phone calls to his attorney, and in July 2021, Cheng's attorney wrote a letter to Congresswoman Speier's office, "informing Ms. Speier of the violation," requesting information on how Cheng's number was obtained, and requesting that Cheng be added to a "do not call" list. Id. ¶ 27. On July 27, 2021, Congresswoman Speier's office responded that Cheng would be placed on the "do not call" list, but did not explain how the office obtained Cheng's phone number. Id. ¶ 28. On December 15, 2021, Cheng received another unsolicited call on his cell phone with Congresswoman Speier's prerecorded voice, again inviting him to participate in a town hall. Id. ¶ 29.

Cheng alleges Congresswoman Speier violated the TCPA by not obtaining consent from the call recipients to receive the messages, playing the prerecorded messages, failing to add Cheng to the "do not call" list, and "willfully" and/or "knowingly" making such calls. Id. ¶¶ 39-45. Cheng alleges Congresswoman Speier invaded his and the class's privacy, causing them to suffer actual damages that entitles them to $500-$1,500 in civil fines for each violation and an injunction requiring Congresswoman Speier to cease such calls. Id. ¶ 43.

Cheng alleges that Congresswoman Speier's actions also violated Cal. Bus. & Prof. Code § 17200. Id. ¶¶ 46-62. Cheng alleges that Congresswoman Speier violated the unlawful prong of Cal. Bus. & Prof. Code § 17200 based upon the TCPA violations. Id. ¶ 48. Furthermore, Cheng alleges these calls offend "an established public policy or that are immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers" and are therefore in violation of the unfair prong of Cal. Bus. & Prof. Code § 17200. Id. ¶ 58. Cheng and the class members seek injunctive relief under Cal. Civ. Code § 17204 requiring Congresswoman Speier to cease the phone calls. Id. ¶¶ 55, 62.

On April 14, 2022, Congresswoman Speier filed a Notice of Substitution of the United States as Defendant on Counts II & III, the state law causes of action. "Notice" (Dkt. No. 17).¹ The Notice states that the Federal Torts Claim Act, 28 U.S.C. §§ 1346(b) ; 2671-2680 (the "FTCA"), as amended by the Westfall Act, requires any suit against federal employees for "their negligent or wrongful acts or omissions taken within the scope of their office or employment" to proceed as "a suit against the United States." Id. at 1-2. The Notice states the Attorney General can certify a federal employee was acting within their official duties at the time of the claim, and that once certified, the claim "shall be deemed an action against the United States." Id. Michelle Lo, Chief of the Civil Division, has certified Congresswoman Speier was acting within the scope of her employment. See id. Ex 1. Cheng opposes the Notice and certification. (Dkt. No. 22).

On April 14, 2022, Congresswoman Speier moved to dismiss Cheng's claims for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6).

LEGAL STANDARD

A case may be dismissed when there is a "lack of subject matter jurisdiction." Fed. R. Civ. Pro. 12(b)(1). When presented with a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, a federal court must first distinguish between a "facial attack" and a "factual attack." See Leite v. Crane Co. , 749 F.3d 1117, 1121 (9th Cir. 2014). For a facial attack, the challenger is asserting the complaint is "insufficient on [its] face to invoke federal jurisdiction." Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). When a challenge to the court's subject matter jurisdiction is facial, the inquiry is confined to allegations within the complaint. Wolfe v. Strankman , 392 F.3d 358, 362 (9th Cir. 2004). Furthermore, the court should take allegations within the plaintiff's complaint as true. See Bollard v. Cal. Province of the Soc'y of Jesus , 196 F.3d 940, 945 (9th Cir. 1999). However, "in a factual attack, the challenger disputes the truth of the allegations, that by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone , 373 F.3d at 1039. Factual attacks are often made "by presenting affidavits or other evidence properly brought before the court." Id. Once a factual attack has been made, the plaintiff has the burden to provide proof of jurisdiction "under the same evidentiary standard that governs in the summary judgment context." Leite , 749 F.3d at 1121. A court does not need to presume the truthfulness of plaintiff's allegations when examining a factual attack. White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000). However, without a "full-fledged evidentiary hearing, disputes in the facts pertinent to subject matter are viewed in the light most favorable to the opposing party." Jackson v. SSA , No. C 10-02578 JW, 2011 WL 13142105 at *2, 2011 U.S. Dist. LEXIS 160232 at *4 (N.D. Cal. Oct. 19, 2011) (citing Dreier v. United States , 106 F.3d 844, 847 (9th Cir. 1996) ).

DISCUSSION

I. Telephone Consumer Protection Act, 47 U.S.C. § 227

A. Official Capacity

Congresswoman Speier moves to dismiss Cheng's TCPA claim against her in her official capacity for lack of subject matter jurisdiction based on sovereign immunity. "In an official-capacity claim, the relief sought is only nominally against the official and in fact is against the official's office and thus the sovereign itself." Lewis v. Clarke , 581 U.S. 155, 137 S. Ct. 1285, 1291, 197 L.Ed.2d 631 (2017). The United States, as a sovereign, is immune from suits if it has not consented to be sued on each claim. See Consejo de Desarrollo Economico de Mexicali, A.C. v. United States , 482 F.3d 1157, 1173 (9th Cir. 2007). "This immunity extends to executive and legislative branch officials, including Members of Congress, acting in their official capacities." Ardalan v. McHugh , No. 13-CV-01138-LHK, 2013 WL 6212710, at *11 (N.D. Cal. Nov. 27, 2013) (collecting cases). When faced with a 12(b)(1) motion to dismiss, the nonmovant has the burden of proving sovereign immunity does not bar suit. Pistor v. Garcia , 791 F.3d 1104, 1111 (9th Cir. 2015). A plaintiff must point to a statute by Congress that has waived immunity to establish subject matter jurisdiction when asserting a claim against a defendant in their official capacity. See Jachetta v. United States , 653 F.3d 898, 903 (9th Cir. 2011).

Congresswoman Speier contends that the Supreme Court has held that the United States is immune from suits arising under the TCPA, citing Campbell-Ewald Co. v....