United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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).
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.
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
Motion to dismiss Count One
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
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.
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.
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.
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 ...