Nathen Barton v. Jms Associate Marketing, LLC ( 2023 )

FILED
NOT FOR PUBLICATION
FEB 15 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATHEN W. BARTON, No. 21-35836
Plaintiff-Appellant, D.C. No. 3:21-cv-05509-RJB
v.
MEMORANDUM*
JMS ASSOCIATE MARKETING, LLC,
Defendant-Appellee,
and
JOSETTE M. SELBERT, General
Manager and Owner; et al.,
Defendants.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted February 13, 2023**
Seattle, Washington
Before: W. FLETCHER, PAEZ, and VANDYKE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Nathen Barton appeals from the district court’s entry of a default judgment
in his favor for the amount of $12,000. Barton registered a cell phone for his
minor child and placed it on the FTC do-not-call registry. That cell phone
thereafter received six phone calls from J.M.S. Associate Marketing, LLC (“JMS”)
and its associated entities, Tele Transform and Vivid Hear. Barton answered four
of these calls, while two went unanswered. For the four calls he answered, Barton
was greeted with an artificial or recorded voice message encouraging the purchase
of either a Tele Transform or Vivid Hear product. He brought suit against JMS in
the United States District Court for the Western District of Washington. He
alleged a violation of the Telephone Consumer Protection Act (the TCPA), 47
U.S.C. § 227, for the six calls made to a cell phone on the FTC do-not-call list and
for the four calls that used an artificial or prerecorded voice. He also alleged
violations of various Washington state laws: the Washington Automatic Dialing
and Announcing Device Act (WADAD), Wash. Rev. Code Section 80.36.400; the
Washington Do Not Call statute (the WDNC), Section 80.36.390; and the
Washington Commercial Telephone Solicitation Act (the WCTSA), Section
19.158, et seq.
JMS defaulted, failing to file an answer, motion, or any other
communication with the court. The clerk entered the default and Barton moved for
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a default judgment. The district court granted the motion in part and denied it in
part. As relevant here, the district court found that Barton was entitled to treble
damages of $6,000 under the TCPA for the four calls he answered, but was unable
to collect damages under that statute for the two calls he failed to answer. The
district court also found that Barton was entitled to treble damages of $6,000 under
WADAD1 for the four answered calls.2 It further found that Barton was not
entitled to damages under the WDNC3 because the provision Barton cited in his
motion for a default judgment governed fines, not civil damage awards. Finally, it
found that Barton was not entitled to damages under the WCTSA because he did
not allege an injury to his business or property.
We have jurisdiction under 28 U.S.C. § 1291. A district court’s
interpretation of a federal regulation is reviewed de novo. Ministry of Def. &
Support for the Armed Forces of the Islamic Republic of Iran v. Frym, 814 F.3d
1The district court mistakenly cites the WDNC, which is a separate statute,
while discussing WADAD. Even so, the district court separately cites and
analyzes the correct provision for WADAD. Barton does not challenge the district
court’s calculation under WADAD.
2
While WADAD may cover unanswered calls, see Wash. Rev. Code
Section 80.36.400(1)(b), Barton does not argue that the district court erred in not
awarding damages under this statute for the two unanswered calls. We therefore
do not review that decision on appeal.
3
The district court incorrectly refers to Wash. Rev. Code Section 80.36.390
as WADAD. That statute is the WDNC.
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1053, 1057 (9th Cir. 2016). Its interpretation of state law is also reviewed de novo.
Flores v. City of Westminster, 873 F.3d 739, 748 (9th Cir. 2017). We affirm in part
and reverse in part, and remand to the district court for further damage
calculations.
A regulation is interpreted according to “the natural and plain meaning of its
words.” Bayview Hunters Point Cmty. Advocs. v. Metro. Transp. Comm’n, 366
F.3d 692, 698 (9th Cir. 2004) (internal quotation marks omitted). If the language
is clear and unambiguous, our inquiry ends. Safe Air for Everyone v. U.S. E.P.A.,
488 F.3d 1088, 1097 (9th Cir. 2007) (citing Roberto v. Dep’t of the Navy, 440 F.3d
1341, 1350 (Fed. Cir. 2006)). When the language is unambiguous, we do not
consider the legislative history. E.E.O.C. v. Luce, Forward, Hamilton & Scripps,
345 F.3d 742, 753 (9th Cir. 2003). “[A] provision that may seem ambiguous in
isolation is often clarified by the remainder of the statutory scheme.” Hall v. U.S.
Dep’t of Agric., 984 F.3d 825, 838 (9th Cir. 2020) (internal quotation marks
omitted) (quoting United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs.,
Ltd., 484 U.S. 365, 371 (1988)).
1. TCPA Violations
47 U.S.C. § 227(c)(5) provides a private right of action to any person who
receives more than one telephone call that violates regulations promulgated under
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the TCPA from the same entity within a twelve-month period. 47 C.F.R.
§ 64.1200(c)(2) provides that “[n]o person or entity shall initiate any telephone
solicitation to: . . . [a] residential telephone subscriber who has registered his or her
telephone number on the national do-not-call registry.”
The regulation prohibits the initiation of a call to a telephone number that
has been placed on the FTC do-not-call registry. 47 C.F.R. § 64.1200(c)(2).
Whether the call was answered is irrelevant under the regulation. The district court
therefore erred in declining to award damages for the two calls Barton failed to
answer. We remand for the district court to calculate in the first instance the
appropriate damages for those two unanswered calls.
2. WADAD and WDNC Violations
WADAD regulates the usage of automatic dialing and announcing devices.
See Wash. Rev. Code § 80.36.400(1)–(2). A violation of WADAD presumptively
causes $500 of damages to the recipient. Id. § 80.36.400(3). The WDNC regulates
the conduct of telephone solicitors in the course of solicitation. See Wash. Rev.
Code § 80.36.390(1)–(3), amended by 2022 Wash. Legis. Serv. Ch. 195 (West). A
person aggrieved under the WDNC may bring a civil action to recover at least
$100 per violation. Id. § 80.36.390(6). The violator is also subject to fines of up
to $1,000 per violation. Id. § 80.36.390(4).
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The district court awarded Barton damages under WADAD, Section
80.36.400, for the four phone calls Barton answered. It declined to award damages
under the WDNC, Section 80.36.390, referring to both statutes as WADAD.
WADAD and the WDNC are two separate statutes with two separate damages
provisions. While the district court correctly noted that Barton was not entitled to
damages under WDNC Section 80.36.390(4), as that provision governs fines, it did
not mention Section 80.36.390(6), which provides for civil damages. We remand
for the district court to consider in the first instance whether damages are available
under Section 80.36.390(6).
3. WCTSA Violations
Wash. Rev. Code Section 19.158.130 provides that “a person who is injured
by a violation of [the WCTSA] may bring an action for recovery of actual
damages.” The statute’s language unambiguously requires Barton to prove actual
damages. Barton argues to the contrary, pointing to the legislative history and
intent. We do not analyze such history and intent when the statute’s language is
unambiguous. Barton also points to Section 19.158.140 to argue that he may
collect the “civil penalty” described in that provision. When taken in the context
of the WCTSA’s statutory scheme as a whole, particularly the limitations Section
19.158.130 places on private rights of action, it is clear that Section 19.158.140 is a
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fine provision that only the government may collect. Therefore, the district court
did not err in requiring Barton to prove actual damages.
AFFIRMED in part, REVERSED in part, and REMANDED.4
4
The parties shall bear their own costs. See Fed. R. App. P. 39(a)(4).
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