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Perrong v. Liberty Power Corp, L.L.C.

United States District Court, D. Delaware

September 30, 2019

ANDREW R. PERRONG, on behalf of himself and all others similarly situated, Plaintiffs,

          Chad J. Toms, Whiteford Taylor Preston LLC, Wilmington, Delaware. Of Counsel: Aytan Y. Bellin, Bellin & Associates LLC, White Plains, New York. Counsel for Plaintiff.

          Alexandra Rogin, Eckert Seamans Cherin & Mellott, LLC, Wilmington, Delaware. Of Counsel: Charles A. Zdebski, Jeffrey P. Brundage, Eckert Seamans Cherin & Mellott, LLC, Washington, D.C. Counsel for Defendant.

          David C. Weiss, Chad A. Readler, Eric R. Womack, Anjali Motgi, Laura D. Hatcher, United States Department of Justice, Washington, DC. Counsel for the United States of America.



         Plaintiff Andrew R. Perrong (“Plaintiff or “Perrong”) filed this lawsuit against Defendant Liberty Power Corp. L.L.C. (“Defendant” or “Liberty Power”), asserting “violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, and the regulations promulgated thereunder (the ‘TCPA').” (D.I. 1 ¶ 1). In his Complaint, Plaintiff alleges that Liberty Power violated the TCPA by using an automatic telephone dialing system or an artificial or prerecorded voice to call him without his prior consent. (Id. ¶ 2).

         Currently pending before the Court is Liberty Power's “Motion to Dismiss Plaintiffs Complaint for Failure to State a Claim Upon Which Relief Can Be Granted and Partial Motion to Dismiss Plaintiff s Complaint for Lack of Subject Matter Jurisdiction.” (D.I. 8). Plaintiff opposes the motion. (D.I. 12). Additionally, because Liberty Power's defenses raise a constitutional question - specifically whether the TCPA violates the First Amendment - pursuant to Rule 5.1(c) of the Federal Rules of Civil Procedure, the United States has intervened and filed a brief in support of the TCPA. (D.I. 23). In response to a request from the Court, the parties also submitted supplemental authorities regarding the constitutionality of the TCPA. (D.I. 43, 44, 45 & 47). On May 10, 2019, the Court heard oral argument. For the following reasons, Liberty Power's motion to dismiss is DENIED.

         I. BACKGROUND

         A. The TCPA

         Originally enacted by Congress in 1991, the TCPA was a response to “[v]oluminous consumer complaints about abuses of telephone technology.” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 370-71 (2012); see also Am. Ass'n of Political Consultants, Inc. v. Fed. Commc'ns Comm'n, 923 F.3d 159, 161 (4th Cir. 2019). Relevant here, the TCPA prohibits “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 . . . for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii). As is apparent from the statutory language quoted, the prohibition is subject to three exemptions: (1) calls made for “emergency purposes, ” (2) calls made with the “prior express consent of the called party, ” and (3) calls “made solely to collect a debt owed to or guaranteed by the United States” (hereinafter, “the debt-collection exemption”).[1] Id. Congress added the debt-collection exemption in November 2015 as part of the Bipartisan Budget Act of 2015. (D.I. 23 at 3). It is the debt-collection exemption that forms the basis of Defendant's constitutional challenge.

         B. Factual Background of the Litigation

         The Complaint alleges that on March 13, 2018, Liberty Power “using an automatic telephone dialing system, caused to be made at least one (1) call to Plaintiff on his Voice Over Internet Protocol (‘VOIP') telephone using a prerecorded or artificial voice, without Plaintiff's prior express permission, to encourage him to purchase energy services from Defendant.” (D.I. 1 ¶ 1; see also Id. ¶ 16). The voice “said that Defendant could provide Plaintiff with a discount on Plaintiff's energy bill and directed Plaintiff to press 1 to speak to an account representative. After Plaintiff pressed 1, a person with whom Plaintiff spoke over the telephone identified the caller as Liberty Power, i.e., Defendant.” (D.I. 1 ¶ 16). “Plaintiff was charged for this call.” (Id. ¶ 2).


         A. Rule 12(b)(6)

         “To survive a motion to dismiss, a civil plaintiff must allege facts that ‘raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).'” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Dismissal under Rule 12(b)(6) is appropriate if a complaint does not contain “sufficient 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 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The Court is not obligated to accept as true “bald assertions” or “unsupported conclusions and unwarranted inferences.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Instead, “[t]he complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of [each] necessary element” of a plaintiff's claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal quotation marks omitted).

         B. Rule 12(b)(1)

         “Standing is a jurisdictional matter and thus ‘a motion to dismiss for want of standing is also properly brought pursuant to Rule 12(b)(1).'” Susinno v. Work Out World, Inc., No. 15-5881 (PGS), 2017 WL 5798643, at *1 (D.N.J. Nov. 28, 2017). “Challenges to subject matter jurisdiction under Rule 12(b)(1) may be facial or factual.” Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015). A facial challenge contests the sufficiency of the pleadings, whereas a factual challenge contests the sufficiency of jurisdictional facts. Id. In reviewing a facial challenge, the Court considers only the allegations in the complaint and any documents referenced in or attached to the complaint, in the light most favorable to the plaintiff. See Church of Universal Bhd. v. Farmington Twp. Supervisors, 296 Fed.Appx. 285, 288 (3d Cir. 2008). In contrast, when reviewing a factual challenge, the Court may weigh and consider evidence outside the pleadings. See Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016); see also Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). In a factual challenge, “no presumptive truthfulness attaches to plaintiffs' allegations.” Davis, 824 F.3d at 346 (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).


         Liberty Power seeks dismissal of Perrong's claims, arguing that the TCPA is unconstitutional because it violates the First Amendment.[2] (D.I. 8-1 at 3-11). Liberty Power further argues that the Court does not have subject matter jurisdiction to issue an injunction because Perrong lacks standing to pursue his claims. (Id. at 12-17). Before resolving these issues, the Court will first address the Government's argument that Liberty Power does not have standing to assert a constitutional challenge to the TCPA. (See D.I. 23 at 9-11).

         A. ...

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