Gesten v. Stewart Law Group, LLC , 67 F. Supp. 3d 1356 ( 2014 )

ORDER DENYING DEFENDANT’S MOTION TO DISMISS

JAMES I. COHN, District Judge.

THIS CAUSE is before the Court upon Defendant’s Motion to Dismiss Complaint [DE 14] (“Motion”) and Plaintiffs’ Response [DE 18]. Defendant has not filed a Reply. The'Court has reviewed these motion papers, the relevant portions of the case file, and is otherwise advised in the premises. Upon review, the Court will DENY the Motion.

I. Standard

Defendant purports to move to dismiss Plaintiffs Complaint under Federal Rule of Civil Procedure 12(b)(6). [DE 14 at 1.] However, Defendant argues that the Court should dismiss Plaintiffs claims because Plaintiff “lacks Article III standing to assert any.claims against Defendant.” [Id.] “Because a motion to dismiss for lack of standing is one attacking the district court’s subject matter jurisdiction, it is brought pursuant to Rule 12(b)(1).” Region 8 Forest Svc. Timber Purchasers Council v. Alcock, 993 F.2d 800, 807 n. 8 (11th Cir.1993).

A defendant may attack the Court’s subject matter jurisdiction either •facially or factually. See McElmurray v. Consolidated Gov’t of Augusta-Richmond County, 501 F.3d 1244; 1251 (11th Cir.2007); see also Celico Partnership v. Plaza Resorts, Inc., No. 12-cv-81238-CIV, 2013 WL 5436553, at *3 (S.D.Fla. Sept. 27, 2013) (citing McElmurray). The Court construes Defendant’s Motion as a facial challenge to this Court’s subject matter jurisdiction. Such a facial attack requires the Court to determine if Plaintiff has alleged facts to establish her standing. “[T]he allegations of [the] complaint are taken as true for the purposes of the motion.” Smith v. Sec’y U.S. Dep’t of Commerce, 495 Fed.Appx. 10, 11 (11th Cir.2012) (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980)).¹

II. Background

Plaintiffs single-count Complaint alleges that Defendant violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. Per the Complaint, Defendant called Plaintiffs cell phone “dozens” of times using an automatic telephone dialing system. [DE 1 at 6-7.] Defendant left prerecorded messages on Plaintiffs voice mail, which reflected that Defendant made the calls in connection with its efforts to collect a debt from Plaintiffs husband. [Id. at 6.] Plaintiff alleges that these messages “featured a disjointed cadence and a timbre which suggest they were created with an artificially produced voice.” [Id. at 7.] Plaintiff also pleads that “[n]either Plaintiff nor her husband provided [the relevant telephone number] to any creditor during a transaction that resulted in any alleged debt owed, or at any other time.” [M]

Defendant seizes upon a detail that it contends defeats Plaintiffs claim. Specifically, Plaintiff alleges that she is merely the user of — not the subscriber to — the relevant telephone number. Plaintiff alleges that “[a]t all times relevant herein, Plaintiff [ ] maintained dominion and control over the [] number, which is her personal cellular telephone number provided through a Sprint family plan in her husband, Ryan Gesten’s name, paid for from their shared assets.” [Id. at 6.]

III. Discussion

Defendant argues that Plaintiff lacks standing to sue under the TCPA for two reasons. First, Defendant cites 47 U.S.C. § 227(b)(1)(A)(iii) for the proposition that only a party charged for a call may sue. [See DE 14 at 5.] Second, Defendant relies on two cases, Breslow v. Wells Fargo Bank, N.A., 755 F.3d 1265 (11th Cir.2014) and Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir.2014), for the proposition that Plaintiff is not a “called party” within the meaning of the TCPA, and that Plaintiff lacks standing for this additional reason. [DE 14 at 4.] In making these arguments, Defendant looks to the text of TCPA § 227(b)(l)(A)(iii), which states as follows:

It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States 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 system or an artificial or prerecorded voice to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.

[DE 14 at 3.] As set forth below, both of Defendant’s arguments fail.

Defendant first argues that Plaintiff lacks standing to sue under the TCPA because Plaintiff has not alleged that she was charged for the call. [DE 14 at 3, 5.] But Plaintiff need not make such an allegation. This Court has previously determined, in a well-researched and well-reasoned opinion by District Judge Robert N. Scola, that “the TCPA does not require the plaintiff to be ‘charged for’ the calls in order to have standing to sue.” Manno v. Healthcare Revenue Recovery Group, LLC, 289 F.R.D. 674, 683 (S.D.Fla.2013). In reaching this conclusion, Judge Scola relied upon a Northern District of Alabama case, Page v. Regions Bank, 917 F.Supp.2d 1214 (N.D.Ala.2012), that conducted a thorough analysis of the TCPA’s text. The Page court concluded that, under the “doctrine of the last antecedent,” the phrase “ ‘for which the called party is charged for the call’ modifies only ‘any service’ not the preceding phrases in the statute, making the phrase ‘any services for which the called party is charged’ a separate type of qualifying service.” Id. at 1220. Accordingly, the TCPA covers calls to a cellular telephone service regardless of whether anyone is “charged for the call” within the meaning of TCPA § 227(b)(1)(A)(iii). See also Osorio, 746 F.3d at 1258 (holding that a TCPA plaintiff “is not required to prove that he was charged individually for each of the autod-ialed calls”).

Similarly — and again relying on Page — Judge Scola dismissed Defendant’s second argument that Plaintiff must qualify as a “called party” to have standing. “Standing is not expressly limited to the ‘called party.’” Manno, 289 F.R.D. at 682. As the Page court observed, the TCPA “does not use the term ‘called party’ when defining who may assert a TCPA claim.” 917 F.Supp.2d at 1217. “To the contrary, the TCPA grants a private right of action to any ‘person or entity.’ ” Id. (citing 47 U.S.C. § 227(b)(3)). Instead, the TCPA uses the term “called party” when setting forth “an exception to liability, stating that a person does not violate the TCPA if the call is ‘made for emergency purposes or made with the prior express consent of the called party.’ ” Id. at 1216-17. The Motion does not take issue with Plaintiffs allegations concerning consent to the offending phone calls.

Neither Breslow v. Wells Fargo Bank, N.A. nor Osorio v. State Farm Bank, F.S.B—both Eleventh Circuit cases decided after Manno and Page — cause the Court to question the above analysis. Both Breslow and Osorio concern the meaning of the term “called party” within TCPA § 227(b)(1)(A)(iii). Breslow, 755 F.3d at 1267; Osorio, 746 F.3d at 1250-51. As Manno and Page observe, Plaintiff need not be a “called party” to have standing. Moreover, the Court agrees with Plaintiff that Defendant takes a too-narrow view of Osorio and Breslow. While these cases held that a current telephone subscriber qualifies as a “called party” to the exclusion of a prior subscriber who had authorized the call, these cases did not address whether the term also covers a cell phone’s current primary user.

IV. Conclusion

For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:

1. Defendant’s Motion to Dismiss Complaint [DE 14] is DENIED.

2. Defendant shall file its answer to the Complaint on or before December 29, 2014

1 . Alternatively, Defendant’s motion may be interpreted as a facial challenge to Plaintiff’s "statutory standing”- — that is, "whether Congress has accorded this injured plaintiff the right to sue the defendant to redress [her] injury.” Manno v. Healthcare Revenue Recovery Group, LLC, 289 F.R.D. 674, 682 (S.D.Fla.2013) (internal quotation marks omitted). Although some courts have analyzed such a motion under Rule 12(b)(1), others have held that such motions "are more appropriately analyzed under Rule 12(b)(6),” see Page v. Regions Bank, 917 F.Supp.2d 1214, 1216 (N.D.Ala.2012). Whichever the appropriate rule, the analysis and outcome are the same. See McElmurray, 501 F.3d at 1251.