Schaevitz v. Braman Hyundai, Inc.

437 F.Supp.3d 1237

Marc SCHAEVITZ, individually and on behalf of all other similarly situated, Plaintiff,

v.BRAMAN HYUNDAI, INC., a Florida Corporation, Defendant.

Case No. 1:17-cv-23890-KMM

United States District Court, S.D. Florida.

Signed March 25, 2019

Andrew John Shamis, Jordan David Utanski, Miami Beach, FL, Jason Henry Alperstein, Mark Jeffrey Dearman, Robbins Geller Rudman & Dowd LLP, Boca Raton, FL, Scott Adam Edelsberg, Edelsberg Law PA, Aventura, FL, Manuel Santiago Hiraldo, Hiraldo P.A., Fort Lauderdale, FL, for Plaintiff.

Grace Lee Mead, David T. Coulter, Jenea M. Reed, Stearns Weaver Miller Weissler Alhadeff, Sitterson, P.A., David Seymour Leibowitz, Braman Management Association, Miami, FL, for Defendant.

ORDER ON MOTION TO DISMISS

K. MICHAEL MOORE, UNITED STATES CHIEF DISTRICT JUDGE

THIS CAUSE came before the Court upon Defendant Braman Hyundai, Inc.'s ("Defendant") Motion to Dismiss ("Motion") (ECF No. 17). Plaintiff Marc Schaevitz ("Plaintiff") filed a response ("Response") (ECF No. 19) and Defendant replied ("Reply") (ECF No. 21). The motion is now ripe for review.

I. BACKGROUND¹

Plaintiff filed the instant suit against Defendant, alleging a violation of the Telephone Consumer Protection Act of 1991 ("TCPA"). Am. Compl. ¶ 1. Major Advertising, LLC, on behalf of Defendant, transmitted an unsolicited pre–recorded voicemail message (the "Message") to Plaintiff's cellular telephone, which stated as follows:

Hi, this is Rey Gordillo, General Sales Manager at Braman Hyundai of Miami. I'm leaving you this quick voicemail to follow–up on an e-mail and a mailer I mailed you earlier this month regarding your current vehicle. It is in very high demand and I strongly believe I can help you trade it in and have you driving away in a newer vehicle for less than what you're currently paying. If you're interested call me back, 786-629-9633. Again, this is Rey Gordillo at Braman Hyundai, and the number is 786-629-9633. I look forward to hearing back from you, and have a great day.

Id. ¶¶ 43, 52. The purpose of sending the Message was to communicate or try to get into communication with Plaintiff through Plaintiff's cellular telephone. Id. ¶ 31. Plaintiff did not provide Defendant with Plaintiff's express consent to be contacted. Id. ¶ 51.

The "ringless" voicemail platform used to transmit the Message was created by Stratics Networks, Inc. ("Stratics"). Id. ¶¶ 4, 32. The "ringless" voicemail technology used to transmit the Message "establish[es] a direct Internet–based computer–to–computer data connection to the respective voicemails systems of the cellular [carriers]. As part of the protocol for this data communication, subscribers' cellular telephone numbers are used to identify each voicemail box so that the pre–recorded voice messages are inserted into each voicemail box en masse. " Id. ¶¶ 26, 29 (internal citation omitted). The "ringless" voicemails are transmitted by essentially the same method used to transmit text messages to cellular telephones. Id. ¶ 28. Although Plaintiff does not allege that the telephone rings before the voicemail is deposited into the voicemail box, Plaintiff contends "every cellular telephone audibly alerts a consumer when a voicemail is received" in their voicemail box. See id. at 2 n.3; id. ¶ 27.²

Plaintiff alleges actual harm, including invasion of privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. Id. ¶ 53. Plaintiff also alleges that Defendant's voicemail message inconvenienced Plaintiff and disrupted his daily life. Id. Further, Plaintiff alleges that "[u]nlike robocalls and text messages ... consumers are left powerless to block ‘ringless’ voicemails from being transmitted to their phones," which means "a consumer's voicemail box could be rendered useless by just a handful of companies using the technology to market their business." Id. ¶ 30.³

In the Amended Complaint, Plaintiff alleges two counts for violation of the TCPA. In Count I, Plaintiff alleges that Defendant violated 47 U.S.C. § 227(b)(1)(A)(iii), by transmitting–or directing third parties to transmit–calls using an artificial or prerecorded voice to the cellular telephone numbers of Plaintiff and members of a putative class without permission. Id. ¶¶ 67–69. In Count II, Plaintiff alleges that Defendant knowingly and willfully violated the TCPA. Id. ¶¶ 73–74. Defendant moves to dismiss the Amended Complaint arguing that Plaintiff failed to state a claim under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defendant also moved to dismiss the Amended Complaint arguing that the TCPA violates the First Amendment⁴

II. LEGAL STANDARD

A. Rule 12(b)(1)

Federal courts may not assume "hypothetical jurisdiction" by deciding a case on the merits before determining that the court has jurisdiction. Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Consequently, a court must consider jurisdiction on its own initiative, and a party can move to dismiss for lack of subject matter jurisdiction at any time. Arbaugh v. Y & H Corp. , 546 U.S. 500, 506–07, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ; Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject–matter jurisdiction, the court must dismiss the action."). A court may lack subject matter jurisdiction when a plaintiff fails to bear the burden of establishing the "irreducible constitutional minimum" of standing. See Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (clarifying the contours of constitutional standing); Duty Free Ams., Inc. v. Estee Lauder Cos., Inc. , 797 F.3d 1248, 1271 (11th Cir. 2015) (the constitutional standing doctrine "implicates [a court's] subject matter jurisdiction, and accordingly must be addressed as a threshold matter.").

Article III of the Constitution of the United States "restricts the jurisdiction of the federal courts to litigants who have standing to sue." Nicklaw v. CitiMortgage, Inc. , 839 F.3d 998, 1001 (11th Cir. 2016). To establish constitutional standing, a "plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo , 136 S. Ct. at 1547. "Each element of standing must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence required at the successive stages of the litigation." Bochese v. Town of Ponce Inlet , 405 F.3d 964, 975 (11th Cir. 2005) (internal alterations and citation omitted). "A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack of subject matter jurisdiction by either facial or factual attack." Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc. , 524 F.3d 1229, 1232 (11th Cir. 2008).

"On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion–the court must consider the allegations of the complaint to be true." Lawrence v. Dunbar , 919 F.2d 1525, 1528-29 (11th Cir. 1990). But when standing is challenged on a factual basis at a later stage of litigation, "the plaintiff can no longer rest on mere allegations." Bochese , 405 F.3d at 975–76 (citation and internal quotation marks omitted).

B. Rule 12(b)(6)

"To survive a motion to dismiss, a complaint must contain factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The purpose of this requirement is "to give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (quoting Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ). When considering a motion to dismiss, the court must accept all the plaintiff's allegations as true, construing them in the light most favorable to the plaintiff. Pielage v. McConnell , 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading that offers "a formulaic recitation of the elements of a cause of action will not do." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citation omitted). "[C]onclusory allegations, unwarranted deductions of fact or legal conclusions masquerading as facts will not prevent dismissal." Oxford Asset Mgmt., Ltd. v. Jaharis , 297 F.3d 1182, 1188 (11th Cir. 2002).

III. DISCUSSION

Defendant argues that (A) Plaintiff lacks standing because Plaintiff did not receive a "call" within the meaning of the TCPA; (B) Plaintiff lacks standing to seek declaratory or injunctive relief; (C) Plaintiff did not receive a "call" within the meaning of the TCPA and therefore fails to state a claim; (D) the TCPA violates the First Amendment; and (E) Plaintiff fails to adequately allege that Defendant willfully or knowingly violated the TCPA.

A. Whether Plaintiff Received a "Call" Within the Meaning of the TCPA and Therefore Has Standing

The heart of this matter is whether a "ringless" voicemail is a "call" within the ambit of the TCPA. The TCPA makes it unlawful "to make any call ... using any automatic telephone dialing system [ ("ATDS") ] or an artificial or prerecorded voice ... to any telephone number assigned to a ... cellular telephone service." 47 U.S.C. § 227(b)(1)(A)(iii). The Federal Communications Commission ("FCC") is empowered to "prescribe regulations to implement the requirements of this subsection." Id. § 227(b)(2). The TCPA also created a private cause of action "based on a violation of this subsection or the regulations prescribed under this subsection." Id. § 227(b)(3)(A).

Defendant makes two arguments that Plaintiff lacks standing. First, Defendant attempts to factually attack the Amended Complaint arguing that the Amended Complaint and the declaration of ...