Williamson v. Irving K Motor Co., Civil Action 3:21-CV-1599-L-BH

NICOLE WILLIAMSON, individually and on behalf of all others similarly situated, Plaintiff, v. IRVING K MOTOR COMPANY LLC D/B/A CLAY COOLEY KIA, Defendant.

Civil Action No. 3:21-CV-1599-L-BH

United States District Court, N.D. Texas, Dallas Division

June 7, 2022

Consent Case^[1]

MEMORANDUM OPINION AND ORDER

IRMA CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE.

Before the Court is Defendant Irving K Motor Company LLC's Motion to Dismiss First Amended Class Action Complaint Pursuant to Rules 12(b)(1) and 12(b)(6) and Brief in Support, filed September 13, 2021 (doc. 15). Based upon the relevant filings and applicable law, the motion is DENIED.

I. BACKGROUND

Nicole Williamson (Plaintiff) brings this putative class action against Irving K Motor Company LLC d/b/a Clay Cooley KIA (Defendant), for alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227(b) (TCPA). (doc. 12 at 1.)^[2]

From 2017 through 2020, Defendant utilized four telephone numbers^[3] to transmit “multiple prerecorded voice messages” to Plaintiff's cellular telephone number. (Id. at 2.) Each prerecorded voice message attempted to sell Plaintiff a vehicle from Defendant's inventory, and included music and Defendant's marketing slogan: “[S]hop me first shop me last, either way, come see Clay!”. (Id. at 3.) On January 29, 2018, “Defendant sent Plaintiff a prerecorded voice message from telephone number 972-659-2204 which identified ‘the service department of Clay Cooley KIA' and sought for Plaintiff to have her vehicle serviced by Defendant.” (Id.)

Plaintiff alleges that Defendant also sent similar prerecorded messages to individuals residing within this judicial district. (Id.) She references four anonymous complaints on the Internet complaining about receiving robocalls from Defendant from phone numbers 469-447-8212 and 469480-5500. (Id. at 3-4.) She contends that the calls “constitute telemarketing/advertising because they promoted Defendant's business, goods and services, including the sale of vehicles and [its] vehicle maintenance and repair services.” (Id. at 3.) She also contends that these calls “violated [her] substantive rights under the TCPA to be free from unsolicited calls;” caused her harm, including invasion of privacy, aggravation, and annoyance; inconvenienced her; and disrupted her daily life. (Id. at 4.)

Plaintiff's first amended complaint alleges that Defendant violated 47 U.S.C. § 227(b)(1)(A)(iii) of the TCPA, and 47 C.F.R. §§ 64.1200(a)(1)(iii) and 64.1200(a)(2) of its implementing regulations, “by using prerecorded messages to make non-emergency telephone calls to the telephones of Plaintiff and the other members of the putative Class^[4] without their prior express written consent.” (Id. at 7.) It also alleges that the violations were “willful or knowing” because Defendant “knew that it did not have prior express consent to make these calls, and knew or should have known that it was using prerecorded messages.” (Id.) It seeks actual and statutory damages for Plaintiff and each member of the Class, including “up to $1, 500.00 for each and every violation pursuant to 47 U.S.C. § 227(b)(3), ” an order declaring that Defendant's actions violated the TCPA, and an injunction requiring it “to cease all unsolicited call activity without obtaining consent first, and to otherwise protect the interests of the Class.” (Id. at 8.)

On September 13, 2021, Defendant moved to dismiss Plaintiff's first amended complaint. (doc. 15.) Plaintiff responded on October 4, 2021, and Defendant replied on October 18, 2021. (docs. 19, 26.)

II. RULE 12(b)(1)

Defendant first moves to dismiss Plaintiff's first amended complaint under Rule 12(b)(1) for lack of subject-matter jurisdiction, arguing the entire action is based on violations of an unconstitutional and void statute. (doc. 15 at 8-16.)

A. Legal Standard

A motion to dismiss under Rule 12(b)(1) challenges a federal court's subject-matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). Federal courts are courts of limited jurisdiction; without jurisdiction conferred by the Constitution and statute, they lack the power to adjudicate claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They “must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).

A Rule 12(b)(1) motion “may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). A court must dismiss the action if it determines that it lacks jurisdiction over the subject matter. Fed.R.Civ.P. 12(h)(3); Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam). A dismissal under Rule 12(b)(1) “is not a determination of the merits, ” and it “does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction.” Id. Accordingly, considering Rule 12(b)(1) motions first “prevents a court without jurisdiction from prematurely dismissing a case with prejudice.” Id.

The district court may dismiss for lack of subject matter jurisdiction based on (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). A motion to dismiss based on the complaint alone presents a “facial attack” that requires the court to merely decide whether the allegations in the complaint, which are presumed to be true, sufficiently state a basis for subject matter jurisdiction. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1998). “If sufficient, those allegations alone provide jurisdiction.” Id. Facial attacks are usually made early in the proceedings. Id. “A facial attack requires the court merely to decide if the plaintiff has correctly alleged a basis for subject matter jurisdiction” by examining the allegations in the complaint, which are presumed to be true. Rodriguez v. Tex. Comm'n on the Arts, 992 F.Supp. 876, 878 (N.D. Tex. 1998) (citations omitted).

If the defendant supports the motion with evidence, however, then the attack is “factual” and “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Williamson, 645 F.2d at 413. A factual attack may occur at any stage of the proceedings. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). Regardless of the nature of attack, the party asserting federal jurisdiction continually carries the burden of proof to show it exists. Ramming, 281 F.3d at 161.

Here, Defendant's motion to dismiss for lack of subject-matter jurisdiction relies solely on Plaintiff's first amended complaint. (See doc. 15.) The motion therefore presents a facial attack that does not require the resolution of factual matters outside the pleadings. See Williamson, 645 F.2d at 412-13.

B. TCPA's Robocall Restriction

Defendant argues that Supreme Court's decision in Barr v. Am. Ass'n of Pol. Consultants, Inc., 140 S.Ct. 2335, 2344 (2020) (AAPC), deprives the Court of subject-matter jurisdiction over Plaintiff's claim because the alleged calls at issue occurred at the time when § 227(b)(1)(A)(iii) of the TCPA was unconstitutional. (doc. 15 at 11-16.)

In 1991, Congress passed the TCPA in response to “a torrent of vociferous consumer complaints about intrusive robocalls.” AAPC, 140 S.Ct. at 2344. The Act imposes various restrictions on the use of automated telephone equipment and artificial or prerecorded voice messages and directs the Federal Communications Commission (FCC) to implement regulations to enforce its provisions. Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 371 (2012). Section 227(b)(3) of the TCPA creates a private right of action for persons seeking redress for violations of the Act or of the FCC's implementing regulations. See 47 U.S.C. § 227(b)(3). As relevant here, a separate provision of the TCPA makes it unlawful for any person “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 ... to any telephone number assigned to a ... cellular telephone service for which the called party is charged for the call.” 47 U.S.C. § 227(b)(1)(A)(iii). This provision “generally prohibits robocalls to cell phones and home phones.” AAPC, 140 S.Ct. at 2343.

In 2015, Congress amended the TCPA by adding an exception for robocalls “made solely to collect a debt owed to or guaranteed by the United States.” Bipartisan Budget Act of 2015, Pub. L. 114-74, 129 Stat. 588. Five years later, in AAPC, the Supreme Court addressed the constitutionality of the 2015 amendment to the TCPA. See AAPC, 140 S.Ct. at 2344. Six justices concluded that the government-debt exception added in 2015 was an unconstitutional content-based restriction on speech that failed strict scrutiny. Id. at 2343, 2346. Seven justices determined that the 2015 amendment should be invalidated and severed from the robocall restriction, as “the remainder of the law is capable of functioning independently and thus would be fully operative as a...