Fischman v. MediaStratX, LLC

JONATHAN FISCHMAN, Plaintiff, v. MEDIASTRATX, LLC, Defendant.

No. 2:20-CV-83-D

United States District Court, E.D. North Carolina, Northern Division

August 10, 2021

ORDER

JAMES C. DEVER III United States District Judge

On November 25, 2020, Jonathan Fischman (“Fischman” or “plaintiff') filed a complaint against MediaStratX, LLC (“MediaStratX” or “defendant”) alleging violations of the Telephone Consumer Protection Act of1991, 47U.S.C §227(“TCPA”), and47C.F.R. § 64.1200(d) [D.E. 1]. Fischman also seeks class certification. See Id. On January 29, 2021, MediaStratX answered [D.E 7]. On March 17, 2021, MediaStratX moved for judgment on the pleadings [D.E. 11] and filed a memorandum and document in support [D.E. 12]. On April 7, 2021, Fischman responded in opposition to MediaStratX's motion [D.E. 16], On April 21, 2021, MediaStratX replied [D.E. 17]. As explained below the court denies MediaStratX's motion.

I.

Fischman is a resident of Elizabeth City, North Carolina. See Compl. [D.E. 1] ¶ 1. MediaStratX is a Nevada limited liability company headquartered in Santa Ana, California. See Id. ¶ 2. MediaStratX runs telemarketing campaigns selling vehicle warranties throughout the United States. See Id. ¶ 17.

On December 19, 2004, Fischman registered his personal cell phone number on the TCP A's Do-Not-Call registry. See Id. ¶¶ 31-32. Beginning in late 2018, Fischman began receiving unsolicited calls to his personal cell phone about purchasing extended vehicle warranties. See Id. ¶ 34. The calls came from various numbers. See Id. ¶¶ 34-45. In late 2018, Fischman asked the callers to cease calling him about purchasing an extended vehicle warranty. See Id. ¶¶ 34-35. Nonetheless, the calls continued through January 30, 2019. See Id. ¶ 43. Fischman received over 25 calls about purchasing an extended vehicle warranty. See Id. ¶ 45.

Fischman repeatedly attempted to return the calls to identify the company responsible for them but found that the majority of numbers were no longer in service. See Id. ¶ 36. On January 10, 2019, Fischman returned one of the calls and determined that the number was associated with an affiliate of MediaStratX. See Id. ¶ 40. Fischman again asked the agent to stop calling him. See Id. ¶ 37. Nonetheless, Fischman received at least nine more calls between January 10, 2019, and January 30, 2019. See Id. ¶¶ 37-43.

On November 25, 2020, Fischman filed suit against MediaStratX alleging violations of the TCPA and related regulations. See Id. ¶¶ 54-70. MediaStratX now seeks judgment on the pleadings. See (D.E. 11]. As part ofits motion, MediaStratX filed a declaration from Erik Rameson (“Rameson”), a MediaStratX principal. See [D.E. 12-1]. In his declaration, Rameson claims that MediaStratX had no records of calling Fischman (1) before January 10, 2019, (2) on January 14, 2019, or (3) from the multiple numbers Fischman listed in his complaint. See Id. ¶¶ 5-9. Fischman opposes MediaStratX's motion. See [D.E. 16].

II.

A party may move for judgment on the pleadings at any time “[a]fter the pleadings are closed-but early enough not to delay trial.” Fed.R.Civ.P. 12(c). A court should grant the motion if “the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.” Park Univ, Enters, v. Am. Cas. Co. of Reading. 442 F.3d 1239, 1244 (1Oth Cir. 2006) (quotation omitted), abrogated on other grounds by Magnus, Tnc, v. Diamond State Ins. Co., 545 Fed.Appx. 750 (10th Cir. 2013) (unpublished); see Mayfield v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 674 F.3d 369, 375 (4th Cir. 2012); Burbach Broad. Co. of Del, v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). A court may consider the pleadings and any materials referenced in or attached to the pleadings, which are incorporated by reference. See Fed.R.Civ.P. 10(c); Fayetteville Invs, v. Com, Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991). A court also may consider “matters of which a court may take judicial notice.” Tellabs, Inc, v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007).

The same standard applies under Rule 12(c) and Rule 12(b)(6). See Mayfield, 674 F.3d at 375; BurbachBroad. Co., 278 F.3d at405-06. A motion under Rule 12(c) tests the legal and factual sufficiency of the claim. See, e.g., Ashcroft v, Iqbal, 556 U.S. 662, 677-80, 684 (2009); Bell Atl. Corp, v. Twombly, 550 U.S. 544, 554-63 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), afifd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(c) motion, a pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences in the “light most favorable to the [nonmoving party].” Massey v. Ojaniit, 759 F.3d 343, 347, 352-53 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155 (2015); Burbach Broad. Co., 278 F.3d at 406. A court need not accept as true a complaint's legal conclusions, “unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff's allegations must “nudge[ ] [his] claims, ” Twombly, 550 U.S. at 570, beyond the realm of “mere possibility” into “plausibility.” Iqbal, 556 U.S. at 678-79.

MediaStratX moves for judgment on the pleadings and contends that (1) the court lacks subject-matter jurisdiction; (2) Fischman's second and third claims fail because Fischman does not have a private right of action under 47 C.F.R. § 64.1200(d); and (3) Fischman's second and third claims fail because Fischman does not plausibly allege a violation of 47 C.F.R. § 64.1200(d). See [D.E. 12] 9-14; [D.E. 17] 3-10. Fischman disagrees. See [D.E. 16], A.

MediaStratX contends that the court lacks subject-matter jurisdiction over Fischman's claims. The court construes MediaStratX's motion as one to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1). See Fed.R.Civ.P. 12(b)(1), (h)(3); Sucampo Pharms., Inc, v, Astellas Pharma, Inc., 471 F.3d 544, 548-49 (4th Cir. 2006). A motion to dismiss under Rule 12(b)(1) for lack of standing tests subject-matter jurisdiction, which is the court's “statutory or constitutional power to adjudicate the case.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (emphasis omitted). A federal court “must determine thatithas subject-matter jurisdiction over [a claim] before it can pass on the merits of that [claim].” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479-80 (4th Cir. 2005). When considering a Rule 12(b)(1) motion, the court “may consider evidence outside the pleadings without converting the proceeding into one for summary judgment.” White Tail Park, Inc, v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005) (quotation omitted); see Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). A plaintiff must establish that this court has subject-matter jurisdiction over his claims. See, e.g.. Steel Co., 523 U.S. at 103-04; Evans, 166 F.3d at 647; Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). However, “when a defendant asserts that the complaint fails to allege sufficient facts to support subject[-]matter jurisdiction, the... court must apply a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged [in the complaint and any additional materials].” Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009).

If a plaintiff does not have standing, the court does not have subject-matter jurisdiction to hear the plaintiff's claims. See, e.g., Lujan v, Defs. of Wildlife, 504 U.S. 555, 560-61 (1992); Stroube, 413 F.3d at 459; Payne v. Sears, Roebuck & Co., No. 5:11-CV-614-D, 2012 WL1965389, at *2-3 (E.D. N.C. May 31, 2012) (unpublished). A plaintiff establishes standing by showing: (1) that the plaintiff has “suffered an injury in fact-an invasion of a legally-protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical”; (2) “a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not... the result of the independent action of some third party not before the court”; and (3) that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision” from the court. Chambers Med, Techs, of S.C., Inc, v. Bryant, 52 F.3d 1252, 1265 (4th Cir. 1995) (alterations omitted) (quoting Lujan. 504 U.S. at 560-61); see TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2203 (2021); Spokeo, Inc, v. Robins, 136 S.Ct. 1540, 1547 (2016). These requirements are “the irreducible constitutional minimum of standing.” Lujan, 504 U.S. at560; see TransUnion. 141 S.Ct. at2204-07; Spokeo, Inc., 136 S. G. at 1547.

A defendant can mount either a facial or a factual attack upon standing. See Hutton v. Nat! Bd. of Exam'rs in Optometry, Inc., 892 F.3d 613, 620-21 (4th Cir. 2018); Kerns, 585 F.3d at 192; Adams v. Bain. 697 F.2d 1213, 1219 (4th Cir. 1982). A facial attack asserts that a complaint fails to allege facts upon which to base subject-matter jurisdiction. See Hutton, 892 F.3d at 621 n.7; Adams. 697 F.2d at 1219.^[1] When a defendant makes a facial challenge to subject-matter jurisdiction, the court takes the factual allegations of the complaint as true. See Beck...