In Morgan v. U.S. XPRESS, Inc., CHRISTOPHER MORGAN, 2018 WL 3580775, at *2–3 (W.D.Va., 2018), Judge Moon found that a TCPA Plaintiff had to distinguish between cell phone lines and land-lines.
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. . . .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 the residential “lines” formulation that covers landlines. Shoehorning cell phones into the “residential telephone lines” portion of the statute ignores these distinctions. Finally, Plaintiff’s proposed readings creates practical problems. The finely reticulated scheme discussed above creates careful categories. It would be odd if a cell phone, largely used outside the home and at work, became a residential line just because it was brought home and thereby erased those statutory categories. How frequently would it need to be used at home before it became a residential telephone line? Would it revert to its previous state as a mere cell phone if you added a landline at your house? How would these things be proved? Thankfully, these difficult questions can be avoided simply by following the natural reading of the TCPA and treating cell phones and residential lines differently. . . The motion to dismiss Count One will be granted
The District Court refused to strike the pleadings to the extent they sought relieve on behalf of a nationwide class.
The question for this Court is what effect, if any, Bristol-Myers Squibb has on the ability of plaintiffs to bring putative class actions on behalf of a nationwide class against defendants subject to only to specific jurisdiction. . . This Court holds, alongside the “most of the courts that have encountered this issue,” Chernus v. Logitech, Inc., No. CV 17-673(FLW), 2018 WL 1981481, at *7 (D.N.J. Apr. 27, 2018) (collecting cases), that Bristol-Myers Squibb‘s holding and logic do not extend to the federal class action context. This is for two primary reasons. First, “in a mass tort action [like Bristol-Myers Squibb], each plaintiff is a real party in interest to the complaints; by contrast, in a putative class action [like the instant case], one or more plaintiffs seek to represent the rest of the similarly situated plaintiffs, and the ‘named plaintiffs’ are the only plaintiffs actually named in the complaint.” Molock v. Whole Foods Mkt., Inc., 297 F. Supp. 3d 114, 126 (D.D.C. 2018) (denying motion to dismiss on this grounds). This is critically important because Bristol-Myers Squibb framed the specific jurisdiction analysis at the level of the suit: “ ‘the suit’ must ‘aris[e] out of or relat[e] to the defendant’s contacts with the forum.’ ” 137 S. Ct. at 1780 (emphasis in the original, citations omitted). In this case, unlike Bristol-Myers Squibb, there is only one suit: the suit between Plaintiff and Defendant. While Plaintiff may end up representing other class members, this is different than a mass action where independent suits with independent parties in interest are joined for trial. See Devlin v. Scardelletti, 536 U.S. 1, 2 (2002) (“[N]onnamed class members … may be parties for some purposes and not for others.”). Accordingly, unlike the mass action in Bristol-Myers Squibb, the only suit before the Court does arise out of or relate to Defendant’s contacts with the forum. Second, Rule 23’s requirements (numerosity, commonality, typicality, adequacy of representation, predominance, and superiority) “supply due process safeguards not applicable in [Bristol-Myers Squibb‘s] mass tort context.” Molock, 297 F. Supp. 3d 114. “Often, mass torts cannot qualify for class action treatment because they are unable to satisfy these standards.” In re Chinese-Manufactured Drywall Prod. Liab. Litig., No. MDL 09-2047, 2017 WL 5971622, at *14 (E.D. La. Nov. 30, 2017) (rejecting Defendant’s argument in response to a motion to reconsider class certification). And so these requirements help ensure that the claims of a class action’s named plaintiff have more commonality and typicality with those of class members than in a mass tort action. This is important because the defendant in a class action will be “presented with a unitary, coherent claim to which it need respond only with a unitary, coherent defense.” Sanchez v. Launch Tech. Workforce Sols., LLC, 297 F. Supp. 3d 1360, 1366 (N.D. Ga. 2018) (denying motion to dismiss on this grounds). This is fundamentally different than the significant variations that might occur in a tort mass action like Bristol-Myers Squibb. Id. Due process concerns raised by that aggregation of claims are lessened in the class action context . . .
Finally, in denying this motion, the Court notes that Congress created class actions to help “overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617 (1997) (internal quotation marks omitted). The Court is reluctant to believe that the Supreme Court’s “straightforward application … of settled principles of personal jurisdiction” in Bristol-Myers Squibb requires a substantial limiting of that valuable tool. Accordingly, the Court will not rush to carry that case beyond its holding and logic, and so will deny this aspect of Defendant’s motion to dismiss.