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Morgan v. U.S. Xpress, Inc.

United States District Court, W.D. Virginia, Charlottesville Division

July 25, 2018

Christopher Morgan, Plaintiff,
v.
U.S. Xpress, Inc., Defendant.

          MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE

         This case arises under the Telephone Consumer Protection Act, or TCPA. That statute prohibits, among other things, the use of various types of prerecorded calls. See 47 U.S.C. §§ 227(b)(1)(A), (b)(1)(B). The Defendant in this case, U.S. Xpress, Inc., is a Nevada trucking company headquartered in Tennessee. (Dkt. 4 at ¶6). The Plaintiff, Virginia resident Christopher Morgan, alleges Defendant used prerecorded calls to recruit him to become a truck driver. (Id. at ¶¶5, 12-14). Importantly, Plaintiff allegedly received these calls on a “residential, cellular telephone line.” (Id. at ¶12). Plaintiff filed this putative class action in response.

         Defendant has moved to dismiss two portions of the complaint. (Dkt. 11). The Court will grant the motion to dismiss Count One because Plaintiff has failed to plausibly allege the calls were made to a “residential telephone line” within the meaning of the relevant section of the TCPA. The Court will deny the motion to dismiss the claims of putative nonresident class members because the Court has personal jurisdiction over Defendant as to their claims.

         I. Standard

         The motion to dismiss Count One is evaluated under the familiar Fed.R.Civ.P. 12(b)(6) standard. The Rule 12(b)(6) motion tests the legal sufficiency of a complaint to determine whether Plaintiff has plausibly alleged a claim. King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). The Court takes all factual allegations in the complaint as true and draws all reasonable inferences in the Plaintiff's favor. Id. at 212. But the Court will not “accept the legal conclusions drawn from the facts, ” Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011), and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         The motion to dismiss putative nonresident class members for lack of personal jurisdiction is evaluated under Fed.R.Civ.P. 12(b)(2). “When a district court considers a question of personal jurisdiction based on the contents of a complaint and supporting affidavits, the plaintiff has the burden of making a prima facie showing in support of its assertion of jurisdiction.” Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558, 560 (4th Cir. 2014). In conducting its analysis, “the district court must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction.” Id. at 558.

         II. Analysis

         The allegations in the introductory paragraph adequately summarize the complaint for purposes of this motion. The parties simply dispute how the law applies to those few allegations.

         A. Motion to dismiss Count One

         Count One of the complaint alleges Defendant violated the TCPA by calling Plaintiff's “residential telephone line.” (Dkt. 4 at ¶30). Count Two alleges Defendant violated the TCPA by calling Plaintiff's “cellular telephone line.” (Id. at ¶33). Both counts arise out of the same calls to Plaintiff's cell phone, which he labels a “residential, cellular telephone line.” (Id. at ¶12). Plaintiff argues the same calls can give rise to both Counts. Defendant disagrees, and argues that calls made to a cell phone, even when used at home, are not calls made to “residential telephone lines.” The Court holds that the structure and language of the TCPA demonstrate that calls made to a cell phone are not calls made to a “residential telephone line, ” and so Count One will be dismissed. See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (“The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”).

         To start, Plaintiff's characterization of the cell phone as a “residential, cellular telephone line” is not determinative of this question. These are not factual allegations, but legal terms drawn from the operative statute. And “[t]he court is not obligated to assume the veracity of the legal conclusions drawn from the facts alleged.” Birmingham v. PNC Bank, N.A., 846 F.3d 88, 92 (4th Cir. 2017). The underlying factual allegations, which the Court credits, are simply that Plaintiff received four phone calls to his cell phone. (Dkt. 4 at ¶¶12-14). The Court also fairly infers, from Plaintiff's labeling of the line as “residential, ” that Plaintiff used this cell phone at his home, at least some of the time. (Id. at ¶12). The question is simply how the relevant sections of the TCPA treat those calls.

         The structure of the statute makes it clear that a call can be to either a cell phone or residential line, and the statute addresses those two distinct possibilities in two different sections. Section 227(b)(1)(A)(iii) prohibits automated or prerecorded calls made “to any telephone number assigned to a . . . cellular telephone service . . . .” And Section 227(b)(1)(B) prohibits automated or prerecorded calls made “to any residential telephone line . . . .” These side-by-side provisions anticipate calls made to two different types of phones. Plaintiff's arguments would erase that distinction.

         Congress's structural choice to treat these different types of calls differently has been observed by abundant and uniform (although largely out-of-circuit) authority. See, e.g., Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1250 (11th Cir. 2014) (distinguishing a case that discussed Section 227(b)(1)(B), which concerns calls to residential lines, because “the telephone number in question here, is a cell-phone number”); Rahn v. Bank of Am., N.A., No. 1:15-CV-4485-ODE-JSA, 2016 WL 7325657, at *4 (N.D.Ga. June 24, 2016) (“The statute clearly differentiates between calls to residential lines (covered by § 227(b)(1)(B)) and calls to cellular and other types of mobile lines (§ 227(b)(1)(A)), as is applicable here.”), report and recommendation adopted, No. 1:15-CV-4485-ODE-JSA, 2016 WL 7335392 (N.D.Ga. Sept. 2, 2016); Iniguez v. The CBE Grp., 969 F.Supp.2d 1241, 1249 (E.D. Cal. 2013) (“[T]he TCPA makes a clear distinction between the provisions that apply to residential lines and those that apply to numbers assigned to a cellular telephone service.”). Admittedly, fewer courts have considered the precise question presented here, whether one phone can serve as both a residential and cellular line, but at least one court has rejected it. See Cunningham v. Carribean Cruise Lines, Inc., No. 15-62580-CIV, 2016 WL 7494871, at *2 (S.D. Fla. Dec. 29, 2016) (“While Plaintiff argues that his cellular phone serves as both a mobile and residential line, the Eleventh Circuit distinguishes residential land line telephone numbers from cell-phone numbers. . . . [T]he Court finds Plaintiff's assertion that a cellular phone can be converted into a residential phone unavailing.”). This authority recognizing that the statute's structure addresses different types of phones in different sections of the statute supports the Court's conclusion.

         Additionally, Congress used different language to discuss cell phones and residential lines, further demonstrating that they are not interchangeable. When regulating calls made to cell phones, Section 227(b)(1)(A)(iii) addresses calls made to “telephone number[s] assigned to a . . . cellular telephone service . . . .” Contrast that with how Section 227(b)(1)(B) addresses “residential telephone line[s].” Of course, cell phones are wireless, and so one does not have a cellular “line, ” at least in the same way one has a “landline.” The statute recognizes this distinction, using a broader formulation (i.e., “number[s] assigned to . . .”) to cover cell phones than ...


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