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Iniguez v. CBE Group, Inc.

United States District Court, Ninth Circuit

December 4, 2013

NANCY INIGUEZ, on behalf of herself and all others similarly, Plaintiff,
v.
THE CBE GROUP, INC., Defendant.

ORDER DENYING DEFENDANT THE CBE GROUP, INC.'S MOTION FOR RECONSIDERATION, OR, IN THE ALTERNATIVE, MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. § 1292(b)

JOHN A. MENDEZ, District Judge.

This matter came before the Court on a motion for reconsideration brought by the Defendant, The CBE Group, Inc. ("CBE" or "Defendant"), or, in the alternative, a motion for certification of interlocutory appeal (Dkt. No. 32). Plaintiff, Nancy Iniguez ("Plaintiff") has opposed the motion (Dkt. No. 34). Defendant has asked the Court to reconsider its order from September (Dkt. No. 18), in which the Court denied CBE's motion to dismiss. CBE's motion to dismiss was premised on the belief that the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et seq. (the "TCPA") does not apply to debt collection calls, and therefore Plaintiff had no actionable TCPA claim against CBE as a matter of law.

CBE urges this Court to specifically reconsider the issue of whether the TCPA applies to debt collection calls on the basis that recent case law establishes that debt collection calls are categorically exempt from TCPA, and allowing the case to proceed on the prior ruling would be manifestly unjust.

In the alternative, CBE has requested this Court to certify its prior order under 28 U.S.C. § 1292(b), arguing there is substantial ground for difference of opinion as to a pure question of controlling law the resolution of which will materially affect this litigation.

CBE has argued that three "recent federal district court opinions have held that debt collection calls, similar to those underlying plaintiff's TCPA claim, are exempt from TCPA, and thus these calls cannot give rise to a TCPA violation." Def.'s Memo., p. 3, lns. 5-7 (Dkt. No. 32).

First, the three cases cited by CBE were all decided before the Court made its order on the motion to dismiss, and even before CBE filed its reply to plaintiff's opposition to CBE's motion to dismiss. Thus, the Court finds these three cases are not recent and should have been included in the original motion to dismiss.

The three cases cited and briefly discussed by CBE in this motion for reconsideration fail to show how manifest injustice would result if the Court declines to reconsider its order, and certainly do not support CBE's contention that debt collection calls are categorically exempt from the TCPA.

In Martinez v. Johnson, a case out of the District of Utah, [1] the plaintiffs alleged a violation of TCPA based on calls made by defendant for debt collection purposes arising out of an established business relationship. Although plaintiffs contended that the calls were made to a cell phone, that court found that there was no evidence that the phone contacted was, in fact, a cell phone rather than a landline.

The Court found that a regulatory exemption applied to the calls, and therefore the TCPA did not prohibit them. However, the provision relied on by the district court in Martinez shows that it is inapplicable to the case at hand.

In Martinez, the Court cited 47 CFR 64.1200(a)(2)(iii-iv) as the source of the exemption. The provision in effect at the time, recently amended and recodified as 47 CFR 64.1200(a)(3), specifically stated that no person may "initiate any telephone call to any residential line unless the call is made for a commercial purpose but does not include or introduce an unsolicited advertisement, or constitute a telephone solicitation, or is made to any person with whom the caller has an established business relationship at the time the call is made."

By the explicit language of the regulation, the exemption relied on by the court in Martinez applies to residential lines. It does not reference calls made to cell phones, which are discussed elsewhere in the regulation. As stated, the 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.

Comparing 47 U.S.C. § 227(b)(1)(A)(iii), which prohibits calls to any telephone number assigned to a cellular telephone service, unless with prior express consent or for emergency purposes, to 47 U.S.C. § 227(b)(1)(B), that prohibits calls to any residential telephone line unless it is for emergency purposes, with consent, or expressly exempted.

As such, the Martinez case does not apply to the claims at issue in the case before this Court, and it provides no support for CBEs motion for reconsideration.

The second case cited by CBE in the motion for reconsideration is Roy v. Dell Financial Services, LLC.[2] That is out of the Middle District of Pennsylvania. In that case, the district court relied on the same exemptions as the Martinez Court to find that the Plaintiff's allegations ...


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