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Southwell v. Mortgage Investors Corporation of Ohio, Inc.

United States District Court, Ninth Circuit

November 15, 2013

JOESEPH SOUTHWELL and JERRY BLAND, Plaintiffs,
v.
MORTGAGE INVESTORS CORPORATION OF OHIO, INC., Defendant.

ORDER ON MOTION TO DISMISS

MARSHA J. PECHMAN, Chief District Judge.

This matter comes before the Court on Defendant's motion to dismiss Plaintiffs' claims under Washington State's Do Not Call provision, RCW 80.36.390, as preempted by the federal Telephone Consumer Protection Act, 47 U.S.C. § 227. (Dkt. No. 18.) Having reviewed the motion, Plaintiffs' response (Dkt. No. 21), and Defendant's reply (Dkt. No. 23), and all related papers, the Court DENIES the motion to dismiss because the Washington Do Not Call provision is neither expressly nor impliedly preempted.

Background

This putative class action concerns the telemarketing practices of Defendant Mortgage Investors Corporation. Class representatives Joseph Southwell and Jerry Bland claim they received repeated calls to their cellular phones encouraging them to refinance their home loans- even after they advised Defendant they no longer wished to receive the calls. (Compl. ¶¶ 1.1-1.2, 2.2-2.6., Dkt. No. 1 at 7-9.)[1] Bland claims the calls violated the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227, and Do Not Call regulations, 47 C.F.R. § 64.1200(c)-(f), because his number was listed on the national Do Not Call list. (See Compl. ¶¶ 2.5, 4.1-4.2, Dkt. No. 1 at 9, 12.) Plaintiffs further claim calls to Southwell and Bland violated the "internal" donot-call-list provisions of the federal Do Not Call regulations, and calls to Bland violated RCW 80.36.390. (See Compl. ¶¶ 2.4-2.6, 4.1-5.2, Dkt. No. 1 at 8-9, 12.)

Defendants ask the Court to dismiss the state law claim, arguing the statute is both expressly and impliedly preempted by the TCPA and the federal Do Not Call regulations. (Dkt. No. 18 at 9-25.) Defendants also want the Court to defer to the FCC's interpretation of the TCPA's preemptive effect. (Id. at 18-22.) Plaintiffs argue the presumption against preemption of state law applies (Dkt. No. 21 at 9-11), the statute is saved under the TCPA's express savings clause (id. at 11-14), the Court need not defer to the FCC (id. at 16-17), and the TCPA and federal regulations do not impliedly preempt the statute (id. at 14-16).

Discussion

I. Legal Standard

"To survive a motion to dismiss, a complaint must 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) (quotation marks and citation omitted). Federal preemption of state law is a grounds for dismissal. See Whistler Invs., Inc. v. Depository Trust & Clearing Corp. , 539 F.3d 1159, 1168 (9th Cir. 2008).

There are three classes of preemption: express, conflict (a type of implied preemption), and field preemption (also a type of implied preemption). See Valle del Sol v. Whiting, 732 F.3d 1006, 1022 (9th Cir. 2013).

In all preemption cases, "the purpose of Congress is the ultimate touchstone." Wyeth v. Levine , 555 U.S. 555, 565 (2009). Where Congress has legislated in a field which the states have traditionally occupied, the Court's analysis must begin with a presumption that Congress did not intend to preempt a state's traditional police powers. Id . Since consumer protection is a field traditionally regulated by the states, the presumption applies in this case. See Arguayo v. U.S. Bank , 653 F.3d 912, 917 (9th Cir. 2011). Only a "clear and manifest purpose" of Congress to preempt state law can overcome the presumption. See Wyeth , 555 U.S. at 565.

II. Express Preemption

The parties focus their express preemption discussion on the impact of the TCPA's savings clause. Indeed, the TCPA does not contain an independent express preemption provision, but only a savings clause. The savings clause provides in part:

(f) Effect on State law
(1) State law not preempted Except for the standards prescribed under subsection (d) of this section and subject to paragraph (2) of this subsection [provisions not relevant here], nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes ...

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