Betz v. Howard University Hospital

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NA’EEM BETZ,
Plaintiff,
Civil Action No. 22-1578 (JEB)
v.
HOWARD UNIVERSITY HOSPITAL,
Defendant.
MEMORANDUM OPINION
In the latest of his innumerable pro se Telephone Consumer Protection Act lawsuits,
Plaintiff Na’eem Betz alleges that Defendant Howard University Hospital violated the TCPA by
calling him three or four times regarding medical care. In now seeking summary judgment,
Howard rejoins that Plaintiff’s suit fails for a slew of reasons; among them, Betz’s own exhibits
show that the calls were not solicitations made by an automated dialing system, but instead were
outreach from Hospital staff to help a patient navigate the insurance process. More broadly,
Howard contends, Betz is a serial litigant who has made a cottage industry of bringing meritless
TCPA claims in this district and should be enjoined from future litigation. Agreeing, the Court
will grant Howard’s Motion for Summary Judgment, deny Betz’s Motion for Leave to File an
Amended Complaint, and enjoin Plaintiff from suing Howard regarding alleged TCPA violations
without leave of this Court.
I. Background
A. Statement of Material Facts
As the Court considers materials outside the Complaint, it will treat the Motion as one for
summary judgment. Before diving into those materials, however, the Court must decide which
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facts are disputed and which are not. Ordinarily, at summary judgment, “[t]he evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also Mastro v. PEPCO, 447 F.3d
843, 850 (D.C. Cir. 2006); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en
banc). The nonmoving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
In light of that requirement, and pursuant to Local Civil Rule 7(h) and Federal Rule
56(c), the Court, in resolving summary-judgment motions, may “assume that facts identified by
the moving party in its statement of material facts are admitted, unless such a fact is controverted
in the statement of genuine issues filed in opposition to the motion.” LCvR 7(h)(1).
Despite Local Rule 7’s instruction, however, Betz filed no “statement of genuine issues”
in opposition to Howard’s Motion for Summary Judgment. Instead, he offered only blanket
assertions that Defendant has “created a false or inaccurate narrative and timeline of events.”
ECF No. 19 (Pl. Reply) at 1. The Court will thus generally credit the facts in Howard’s
Statement of Material Facts. See ECF No. 6-12 (Howard SUMF); Joe Hand Promotions, Inc. v.
Molly Malone’s LLC, No. 19-3479, 2021 WL 4502073, at *1 (D.D.C. Oct. 1, 2021).
B. Statutory Framework
The Telephone Consumer Protection Act of 1991, known as the TCPA, prohibits
companies from making telephone solicitations to numbers registered on the national do-not-call
registry. The relevant section of the Act’s implementing regulations, 47 C.F.R. § 64.1200(c)(2),
provides:
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(c) No person or entity shall initiate any telephone solicitation
to: . . . (2) A residential telephone subscriber who has registered his
or her telephone number on the national do-not-call registry of
persons who do not wish to receive telephone solicitations that is
maintained by the Federal Government . . . .
The Act defines a “telephone solicitation” as “the initiation of a telephone call or message for the
purpose of encouraging the purchase or rental of, or investment in, property, goods, or services,
which is transmitted to any person . . . .” 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(15).
The TCPA also generally prohibits sending robocalls to cellular and home phones. See
Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2343 (2020). As relevant here, the
Act 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 . . . (iii) to any telephone number assigned to a . . . cellular
telephone service . . . .
47 U.S.C. § 227(b)(1)(A)(iii). The Act in turn defines the term “automatic telephone dialing
system” as “equipment which has the capacity . . . to store or produce telephone numbers to be
called, using a random or sequential number generator; and . . . to dial such numbers.” Id.,§ 227(a)(1); see also Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1167 (2021).
C. Factual Background
Plaintiff Na’eem Betz is no stranger to the TCPA. He has filed 20 lawsuits in this district
over the past decade, most of which raise claims under the Act. See SUMF, ¶ 10; ECF No. 6-2
(List of Cases). Nor is this his first rodeo with Howard University Hospital. Plaintiff has twice
before tried to bring TCPA claims against Howard or its vendor-partners; after the second go-
round, he signed a settlement agreement explicitly allowing that calls from Howard at the rate of
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no more than two per week “are not a violation of the TCPA or any other similar statute.”
SUMF, ¶ 13.
The present skirmish began when the Hospital treated a pseudonymous patient, known as
Patient Doe, in May 2021 and May 2022. Id., ¶ 3. Patient Doe provided a phone number ending
in 8063 as his contact information. Id., ¶ 4. That 8063 number just so happens to be Plaintiff’s
self-identified cell-phone number. Id., ¶ 5; see ECF No. 1 (Compl.), ¶ 15.
Betz alleges that Howard then called that number three times in 2021 and 2022 — on
June 2, 2021, May 13, 2022, and May 24, 2022. See SUMF, ¶ 7; Compl., ¶ 15. (His proposed
Amended Complaint alleges that Howard also called him a fourth time. See ECF No. 12-2
(Proposed FAC), ¶ 15.) As exhibits to his original Complaint, Plaintiff attached what appear to
be transcripts of voicemails a Howard staff member left during the second and third calls. See
ECF No. 1-2 (Exhibits) at 19 (First Voicemail); Exhibits at 24 (Second Voicemail). Those
voicemails show a “Ms. Johnson” calling to see whether the patient has health insurance, and, if
not, to see whether she could help that patient with Medicare. Id. Plaintiff identifies nothing
about the calls that suggests that any came from an automatic dialing machine.
Betz filed his initial Complaint on May 31, 2022. In it, he contends that Howard’s three
calls violated the TCPA. See Compl., ¶¶ 36–42. After filing his Complaint, Betz repeatedly
tried to badger Howard into settling: he emailed Defendant more than 40 times between May and
August 2022 seeking money, and at least ten more times later that year. See SUMF, ¶ 19; ECF
No. 15 (Def. Opp.) at 15. Howard, for its part, represents that it was clear from the outset that it
would not engage in settlement discussions with Betz. See ECF No. 6-6 (Declaration of Zachary
I. Shapiro), ¶¶ 11–14.
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Howard then moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) or, in the
alternative, for summary judgment under Rule 56. See ECF No. 6 (MTD/MSJ). Evidently at its
wits’ end, Howard also requested a prefiling injunction against Betz for any future TCPA-related
claims. Id. at 16. In response, Betz moved for leave to file an Amended Complaint. See ECF
No. 12 (Motion for Leave). Howard opposed that Motion, arguing that amendment would be
futile.
II. Legal Standard
As the Court considers Defendant’s Motion as one for summary judgment, it sets forth
only that standard. Summary judgment must be granted if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Liberty Lobby, 477 U.S. at 247–48; Holcomb v. Powell,
433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “‘genuine’ if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Liberty Lobby, 477 U.S. at 248; see also Scott v. Harris, 550 U.S.
372, 380 (2007); Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion” by “citing to particular parts of materials in the
record” or “showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.
R. Civ. P. 56(c)(1)(B).
Pursuant to Federal Rule of Civil Procedure 15(a)(2), this Court “should freely give leave
[to amend a complaint] when justice so requires.” It is clear, however, that amendment should
not be permitted if it would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962) (noting
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“futility of amendment” as permissible reason to deny Rule 15(a) motion). In other words, if the
new or amended causes of action would still be deficient notwithstanding the proposed
amendment, courts need not grant leave. In re Interbank Funding Corp. Securities Litigation,
629 F.3d 213, 218 (D.C. Cir. 2010) (“[A] district court may properly deny a motion to amend if
the amended pleading would not survive a motion to dismiss.”); James Madison Ltd. v. Ludwig,
82 F.3d 1085, 1099 (D.C. Cir. 1996) (“Courts may deny a motion to amend a complaint as futile
. . . if the proposed claim would not survive a motion to dismiss.”).
III. Analysis
The Court’s analysis proceeds in three parts; it separately analyzes Howard’s Motion for
Summary Judgment, Betz’s Motion to Amend, and Howard’s request for a prefiling injunction.
A. Motion for Summary Judgment
Summary judgment for the Hospital is warranted because the undisputed facts establish
that Defendant’s calls were not solicitations and did not come from an auto dialer, thus dooming
Betz’s TCPA count. As a result, the Court need not even address whether Betz has waived his
right to sue the Hospital under his prior settlement agreement.
The TCPA defines a solicitation as a “telephone call or message for the purpose of
encouraging the purchase or rental of, or investment in, property, goods, or services, which is
transmitted to any person.” 47 U.S.C. § 227(a)(4). Here, Plaintiff’s own evidence makes clear
that the challenged phone calls were not solicitations. Betz submitted apparent transcriptions of
the voice messages he received, which show a Howard employee inquiring about whether the
patient has health insurance and offering to help him navigate the Medicare process if he does
not. See First Voicemail; Second Voicemail. Nothing in those transcriptions — nor anything
else in the record — indicates that the calls were made for purposes of solicitation. Betz
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nonetheless tries to frame the calls as solicitations because, in his view, they “solicited to inquire
about medical insurance from the Defendant which were financial related or relating to financial
content/information.” Pl. Reply at 8. Notwithstanding that circular description of their content,
the voicemails themselves make clear that their purpose was not to sell Plaintiff anything.
Indeed, Howard represents (and Plaintiff does not challenge) that it does not sell health
insurance. See MTD/MSJ at 10. Betz, furthermore, has not offered any facts to show that the
Hospital was in any way seeking to sell some other service.
The TCPA also prohibits phone calls that “us[e] an automatic telephone dialing system or
any artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A). But Plaintiff does not even
allege that Howard used an automatic dialing system — indeed, as before, his own evidence
suggests the contrary. Betz’s voicemail transcriptions show that an individual Howard employee
called the telephone number to inquire about a patient’s insurance coverage.
Plaintiff’s central rejoinder is only that he has Article III standing to seek relief against
Howard and cites cases to that effect. See Pl. Reply at 5. But Defendant does not contest his
standing, and the fact that he has standing does not help him on the merits. Summary judgment
for Howard will accordingly be entered.
B. Motion to Amend
Hoping to stave off defeat, Plaintiff moves to amend his Complaint. His proposed
version would identify a fourth phone call he alleges that the Hospital made, and it would
supplement his sole count with two additional ones: a freestanding count seeking injunctive
relief and a count for invasion of privacy under District of Columbia law. See Proposed FAC,
¶¶ 37–52.
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As to Betz’s first count, the few additional facts he seeks to add do not alter the Court’s
summary-judgment analysis. Plaintiff mentions only a fourth phone call that he allegedly
received, along with several irrelevant details; he does not add any factual allegations or exhibits
that would suggest that the calls were solicitations or originated from an automated dialer. Such
amendment would leave the Court’s prior analysis unaltered.
Second, Plaintiff’s stand-alone claim for injunctive relief gains no traction. The
Declaratory Judgment Act, on which he relies for this count, does not create an independent
cause of action but instead only authorizes a remedy. Numerous courts have so held. See, e.g.,
Malek v. Flagstar Bank, 70 F. Supp. 3d 23, 28 (D.D.C. 2014); Intelsat USA Sales Corp. v. Juch–
Tech, Inc., 935 F. Supp. 2d 101, 120 (D.D.C. 2013); see also C&E Servs., Inc. of Wash. v. D.C.
Water & Sewer Auth., 310 F.3d 197, 201 (D.C. Cir. 2002). A freestanding count under that
statute thus cannot succeed.
Third, with the other counts gone, all that would remain is a privacy dispute under
District of Columbia law between two non-diverse parties. The Court thus would lack
independent subject-matter jurisdiction over that remaining state-law claim, and it would decline
to exercise supplemental jurisdiction.
Federal district courts are given supplemental jurisdiction over state claims that “form
part of the same case or controversy” as federal claims over which they have original
jurisdiction. See 28 U.S.C. § 1367(a). By the same token, they “may decline to exercise
supplemental jurisdiction over [such] claim[s] . . . if . . . the district court has dismissed all claims
over which it has original jurisdiction.” Id. § 1367(c)(3). The decision of whether to exercise
supplemental jurisdiction where a court has dismissed all federal claims is left to the court’s
discretion as “pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right.” United
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Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966), quoted in Shekoyan v. Sibley Int’l,
409 F.3d 414, 423 (D.C. Cir. 2005). When deciding whether to exercise supplemental
jurisdiction over state claims, federal courts should consider “judicial economy, convenience,
fairness, and comity.” Shekoyan, 409 F.3d at 424.
Here, the factors weigh against retention of the case. No federal claims against Howard
remain; this case, furthermore, has not progressed in federal court past Howard’s initial
dispositive Motion, and the Court has developed no particular familiarity with the issues
presented. Cf. Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 378 (D.C. Cir. 2010)
(finding that district court appropriately retained pendent jurisdiction over state claims where it
had “invested time and resources” in the case). The Court can thus conceive of no undue
inconvenience or unfairness to the litigants that would result from such a decision. Finally, Betz
will not be prejudiced because 28 U.S.C. § 1367(d) provides for a tolling of the statute of
limitations during the period the case was here and for at least 30 days thereafter. See Shekoyan,
409 F.3d at 419 (affirming district court finding that because of this tolling, dismissal of pendent
state claims “will not adversely impact plaintiff’s ability to pursue his District of Columbia
claims in the local court system”) (citation omitted). He may thus proceed in Superior Court if
he so desires.
C. Prefiling Injunction
Finally, the Court must decide whether to impose a pre-filing injunction. Such
injunctions are an extreme sanction and are a limited exception to the “general rule of free access
to the courts.” In re Powell, 851 F.2d 427, 431 (D.C. Cir. 1988) (quoting Pavilonis v. King, 626
F.2d 1075, 1079 (1st Cir. 1980)). Pre-filing injunctions should be used sparingly, especially
against pro se plaintiffs. Id. (citing Pavilonis, 626 F.2d at 1079). This Court nonetheless has the
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authority and duty to issue injunctions when necessary “to protect the integrity of the courts and
the orderly and expeditious administration of justice.” Urban v. United Nations, 768 F.2d 1497,
1500 (D.C. Cir. 1985).
When considering an injunction, a court must first ensure that the plaintiff has “notice
and an opportunity to be heard.” Unitronics (1989) (R’’G) Ltd. v. Gharb, 85 F. Supp. 3d 118,
130 (D.D.C. 2015) (quoting In re Powell, 851 F.2d at 431). Once that has been accomplished,
courts then look at the volume of a plaintiff’s filings and the extent to which they are harassing
or frivolous. See Caldwell v. Obama, 6 F. Supp. 3d 31, 50–52 (D.D.C. 2013). The Court will
analyze these issues in turn.
Notice
If the target of a pre-filing injunction receives a motion to dismiss or a show-cause order,
that typically constitutes sufficient notice. See, e.g., Smith v. Scalia, 44 F. Supp. 3d 28, 46
(D.D.C. 2014). Courts have likewise found that a plaintiff’s filing of an opposition
memorandum evidences notice. See Rodriguez v. Shulman, 844 F. Supp. 2d 1, 15 (D.D.C. 2012)
(holding plaintiffs had opportunity to be heard regarding injunction when they submitted
opposition brief).
Here, Betz has received notice and an opportunity to be heard. Howard sought a prefiling
injunction in its Motion for Summary Judgment and offered several pages of explanation for why
one was warranted. See MTD/MSJ at 14–16. Betz has filed a response to that Motion, see Pl.
Reply, as well as his own Motion for Leave to File an Amended Complaint. That suffices for
notice.
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Volume of Filings
The Court next considers the “number and content” of the litigant’s previous filings. See
In re Powell, 851 F.2d at 431. The quantity of meritless suits is not necessarily dispositive in
granting an injunction. See In re Yelverton, 526 B.R. 429, 433 (D.D.C. 2014) (“The volume of
filings alone would not be determinative if his arguments and assertions were generally
colorable.”); Caldwell, 6 F. Supp. 3d at 51 (“[T]he requisite finding of harassment or
vexatiousness does not rest solely on some arbitrary threshold number of lawsuits filed but rather
must also take account of the repetitiveness and nature of the claims.”). It nonetheless remains
relevant as a benchmark. In re Powell, 851 F.2d at 431.
Courts in this district have granted injunctions in cases involving the filing of 11, 15, and
16 actions. See Urban, 768 F.2d at 1498–99 (16); Smith, 44 F. Supp. 3d at 33 (11); Kaufman v.
IRS, 787 F. Supp. 2d 27, 29 (D.D.C. 2011) (15). Meritless suits, however, need not reach double
digits before an injunction will be granted. See, e.g., Davis v. United States, 569 F. Supp. 2d 91,
99 (D.D.C. 2008) (granting injunction after filing of four “essentially identical” suits); Caldwell,
6 F. Supp. 3d at 41, 51 (granting injunction after filing of five “meritless” suits); Powell v. Davis,
No. 18-297, 2018 WL 5621491, at *4–5 (D.D.C. Oct. 30, 2018) (allowing injunction after nine
frivolous and harassing suits).
Betz has filed 20 lawsuits in this district, most under the TCPA. See SUMF, ¶ 10. He
has filed three against Howard or its partners. His total volume of suits, and his present pattern
of suing Howard specifically, is thus sufficiently atypical and disruptive. Such volume would
not alone be determinative were Betz’s claims colorable, but given their frivolousness (as
discussed shortly), their numerosity is great enough to make an injunction appropriate.
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Harassment
To determine whether a plaintiff’s actions are harassing, “the court should consider the
effect of the filings on the parties and the court.” Mikkilineni v. Penn Nat’l Mut. Cas. Ins. Co.,
271 F. Supp. 2d 142, 148 (D.D.C. 2003). Likewise, “forcing the defendants to spend resources
litigating previously-resolved claims” constitutes harassment. Id. at 149. Courts should also
look for evidence that defendants “feel harassed,” which often appears in motions to prohibit the
plaintiff from additional filings. Id.In such analysis, courts also consider whether the filings aim to “harass a particular
adversary.” In re Powell, 851 F.2d at 431. A plaintiff’s decision to cycle between different
defendants, however, does not represent a sufficient rebuttal to arguments that his claims are
harassing. See Smith, 44 F. Supp. 3d at 47 (affirming pre-filing injunction when plaintiff
targeted various judges); Powell, 2018 WL 5621491, at *4 (“[Naming] different defendants”
does not make plaintiff’s suits “less frivolous” or “less harassing” because “[h]is legal theory
hasn’t changed[,] . . . and he is not entitled to as many bites at the apple as there are different
defendants he can somehow include in the case caption.”).
Betz’s FTCA lawsuits qualify as harassing, and certainly so with respect to Howard.
After his second round of TCPA litigation with the Hospital, he signed an agreement explicitly
consenting to two phone calls per week from Howard. Even still, he continues to file TCPA
claims against the Hospital and to hound it for settlement funds. Particularly when viewed
alongside Plaintiff’s repeated emails to Howard and his other TCPA suits in this district, the
Court finds these suits to be harassing in nature.
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Frivolousness
To establish the frivolousness of a plaintiff’s suit, a court must consider whether his
actions advance “the same basic theory” that is conclusively meritless. See Powell, 2018 WL
5621491, at *5 (granting injunction when plaintiff was given “repeated admonitions that his
claims lack legal merit”); Davis, 569 F. Supp. 2d at 99 (issuing injunction after repetitive filing
of “essentially identical” claims). Courts look for a “clear pattern” of “strikingly similar
allegations” in which the plaintiff “propounds substantially the same legal arguments.” Smith,
44 F. Supp. 3d at 46. These claims need not be identical, so long as the plaintiff’s “legal theories
and the gravamen of the complaints remain the same.” Id. at 47.
Betz’s claims here are frivolous. His filings “propound[] substantially the same legal
arguments” that have not succeeded elsewhere and that lack merit. See Smith, 44 F. Supp. 3d at
46. Perhaps appreciating these weaknesses, Plaintiff has turned his attention to badgering
Defendant for settlement funds. These facts all suggest the frivolousness of his action.
Scope of Injunction
Finally, the Court has discretion to decide the injunction’s scope. Betz could, for
example, be enjoined from filing any suit in courts in this district or in any other federal court.
Urban, 768 F.2d at 1500 (barring plaintiff from filing in this court or “any other federal court”);
Mikkilineni, 271 F. Supp. 2d at 143 (barring plaintiff from filing in this court without leave). As
far as substantive scope, Plaintiff could be enjoined from filing without leave of the Court
against anyone related to this dispute or any defendant at all. Powell, 2018 WL 5621491, at *5
(barring plaintiff from filing anything related to a specific dispute); Urban, 768 F.2d at 1500(barring plaintiff from any filing).
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In this case, the Court believes that the most sensible path is to craft its injunction
narrowly: it will bar Plaintiff from filing suit in this district against Howard under the TCPA.
Such an injunction will not unduly encumber Betz’s right to “free access to the courts” in
relation to other legal claims and other defendants. In re Powell, 851 F.2d at 431. Instead, it will
limit Betz only from harassing Howard with further TCPA lawsuits.
IV. Conclusion
For the foregoing reasons, the Court will grant Howard’s Motion for Summary Judgment,
deny Betz’s Motion for Leave to File an Amended Complaint, and enjoin Plaintiff from suing
Howard regarding alleged TCPA violations without leave of this Court. A separate Order so
stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 9, 2023
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