Opinion
Civil Action File No. 1:19-CV-2914-TWT
2021-06-07
Elcinda PERSON, et al., Plaintiffs, v. LYFT, INC., et al., Defendants.
Andrew W. Heidarpour, Heidarpour Law Firm, PLLC, Washington, DC, Anthony Paronich, Paronich Law, P.C., Hingham, MA, Keith James Keogh, Timothy J. Sostrin, Keogh Law, Ltd., Chicago, IL, Steven Howard Koval, The Koval Firm, LLC, Atlanta, GA, for Plaintiffs. Cynthia G. Burnside, Grant Edward Schnell, Matthew T. Covell, Holland & Knight LLP, Atlanta, GA, Michelle R. Gomez, Pro Hac Vice, Paul G. Karlsgodt, Pro Hac Vice, Baker & Hostetler, LLP, Denver, CO, for Defendant Lyft, Inc. David J. Kaminski, Pro Hac Vice, Stephen A. Watkins, Pro Hac Vice, Carlson & Messer LLP, Eric J. Troutman, Pro Hac Vice, Squire Patton Boggs (US) LLP, Los Angeles, CA, Brian M. Gillett, Squire Patton Boggs (US) LLP, Dallas, TX, Bryan Scott Kaplan, Kaplan Legal Services LLC, Keshia Williams Lipscomb, Petrina Ann McDaniel, Squire Patton Boggs (US) LLP, Atlanta, GA, for Defendant Yodel Technologies, LLC.
Andrew W. Heidarpour, Heidarpour Law Firm, PLLC, Washington, DC, Anthony Paronich, Paronich Law, P.C., Hingham, MA, Keith James Keogh, Timothy J. Sostrin, Keogh Law, Ltd., Chicago, IL, Steven Howard Koval, The Koval Firm, LLC, Atlanta, GA, for Plaintiffs.
Cynthia G. Burnside, Grant Edward Schnell, Matthew T. Covell, Holland & Knight LLP, Atlanta, GA, Michelle R. Gomez, Pro Hac Vice, Paul G. Karlsgodt, Pro Hac Vice, Baker & Hostetler, LLP, Denver, CO, for Defendant Lyft, Inc.
David J. Kaminski, Pro Hac Vice, Stephen A. Watkins, Pro Hac Vice, Carlson & Messer LLP, Eric J. Troutman, Pro Hac Vice, Squire Patton Boggs (US) LLP, Los Angeles, CA, Brian M. Gillett, Squire Patton Boggs (US) LLP, Dallas, TX, Bryan Scott Kaplan, Kaplan Legal Services LLC, Keshia Williams Lipscomb, Petrina Ann McDaniel, Squire Patton Boggs (US) LLP, Atlanta, GA, for Defendant Yodel Technologies, LLC.
OPINION AND ORDER
THOMAS W. THRASH, JR., United States District Judge
This is a Telephone Consumer Protection Act case. It is before the Court on the Defendant Lyft's Motion for Judgment on the Pleadings [Doc. 134] and the Defendant Lyft's Amended Motion for Judgment on the Pleadings [Doc. 142]. For the reasons set forth below, the Defendant Lyft's Motion for Judgment on the Pleadings [Doc. 134] is DENIED as moot, and the Defendant Lyft's Amended Motion for Judgment on the Pleadings [Doc. 142] is DENIED.
I. Background
The Plaintiff, Elcinda Person, is a Georgia resident with a cellular telephone. (Am. Compl. ¶¶ 6, 40.) The Defendant, Lyft, Inc. ("Lyft"), is a ride-sharing company that sells technology services to drivers. (Id. ¶¶ 9, 26.) In an effort to reach potential drivers, the Plaintiff alleges that "Lyft relies on telemarketing and engages third parties ... to purchase or obtain consumer telephone number data from third parties, and to then place telemarketing calls to those telephone numbers, subject to Lyft's control." (Id. ¶ 29.) One such third party is Lyft's Co-Defendant, Yodel Technologies, LLC ("Yodel"). (Id. ) The Plaintiff alleges that Yodel obtained telephone numbers from third parties and "used a proprietary predictive dialer to make its automated and prerecorded calls for Lyft." (Id. ¶¶ 32–33.) These efforts resulted in at least fifteen calls to the Plaintiff's cell phone between March and June 2019. (Id. ¶¶ 40–43.) The Plaintiff alleges that during at least three of these calls, he was transferred to a Lyft employee. (Id. ¶¶ 45–48.) According to the Plaintiff, "Lyft hired Yodel to sell its services using telemarketing calls[,]" and a Lyft employee continues the marketing efforts once the call recipient gets through pre-recorded messages. (Id. ¶¶ 62–64.) As a result of these calls, the Plaintiff brings this action against Lyft and Yodel for violations of the Telephone Consumer Protection Act's ("the TCPA") prohibition on automated and prerecorded calls without prior consent, 47 U.S.C. § 227(b). (Id. ¶¶ 84–86.) The Plaintiff brings these claims on behalf of himself and a putative class of similarly situated individuals. (Id. ¶¶ 71–82.)
The other Plaintiff in this action, Robert Hossfeld, has been compelled to arbitrate his claims against the Defendants, and his claims have been stayed. (Dec. 19, 2019 Order.) Therefore, this Order only applies to Mr. Person.
II. Legal Standard
Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the pleadings "[a]fter the pleadings are closed—but early enough not to delay trial." A court should grant a motion for judgment on the pleadings "when there are no material facts in dispute, and judgment may be rendered by considering the substance of the pleadings and any judicially noticed facts." Hawthorne v. Mac Adjustment, Inc. , 140 F.3d 1367, 1370 (11th Cir. 1998). "A motion for judgment on the pleadings is governed by the same standard as a motion to dismiss under Rule 12(b)(6)." Carbone v. Cable News Network, Inc. , 910 F.3d 1345, 1350 (11th Cir. 2018). A complaint should be dismissed under Rule 12(b)(6) only where it appears that the facts alleged fail to state a "plausible" claim for relief. Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ; Fed. R. Civ. P. 12(b)(6). A complaint may survive a motion to dismiss for failure to state a claim, however, even if it is "improbable" that a plaintiff would be able to prove those facts; even if the possibility of recovery is extremely "remote and unlikely." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In ruling on a motion for judgment on the pleadings, the Court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the nonmoving party. Scott v. Taylor , 405 F.3d 1251, 1253 (11th Cir. 2005).
III. Discussion
The Defendant Lyft makes three arguments in its Motion for Judgment on the Pleadings. First, the Defendant argues that the Supreme Court recently found a 2015 amendment to the TCPA unconstitutional, rendering the law unenforceable against the Defendant for any alleged calls between 2015 and 2020. (Def.’s Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 6–9.) Second, the Defendant argues that the Plaintiff has failed to sufficiently allege an agency relationship between Lyft and Yodel, dooming any vicarious liability claim. (Id. at 9–20.) Third, the Defendant argues that Federal Rule of Civil Procedure 19 requires that this case be dismissed for failure to join intermediaries contracted by Lyft to engage potential drivers. (Id. at 20–25.) The Plaintiff contests these arguments, and further faults the Defendant for allegedly relying on documents outside of the pleadings. (Pl.’s Br. in Opp'n to Def.’s Mot. for Judgment on the Pleadings, at 2–3.) The Court begins with the Defendant's constitutional argument—a novel issue making its way through district courts nationwide—before addressing the remaining arguments.
A. Constitutionality of the TCPA
As a threshold matter, the Defendant argues it cannot be held liable for the Plaintiff's claims because the law supporting those claims was deemed unconstitutional by Barr v. American Ass'n of Political Consultants, Inc. , ––– U.S. ––––, 140 S. Ct. 2335, 207 L.Ed.2d 784 (2020) [hereinafter AAPC ]. (Def.’s Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 8.) In support, the Defendant points to district court decisions across the country that have dismissed TCPA claims for lack of "subject matter jurisdiction to enforce this portion of the statute which had been declared unconstitutional." (Id. ) The Plaintiff responds by identifying more recent cases that eschew the logic of the Defendant's cited cases, instead arguing that AAPC did not affect the TCPA provisions relevant here. (Pl.’s Br. in Opp'n to Def.’s Mot. for Judgment on the Pleadings, at 21–23.)
Evaluating the Defendant's argument here requires a robust summary and assessment of the Supreme Court's decision in AAPC and its mosaic of partial concurrences and dissents. As described by the Court, the TCPA passed in 1991 to prohibit calls to cell phones using automatic dialing tools or a prerecorded or artificial voice. AAPC , 140 S. Ct. at 2344 ("In plain English, the TCPA prohibited almost all robocalls to cell phones."). In 2015, the Bipartisan Budget Act amended this general robocall prohibition, 47 U.S.C. § 227(b)(1)(A)(iii), and "carved out a new government-debt exception to the general robocall restriction," allowing otherwise prohibited calls if they were made solely to collect a government debt. Id. at 2344–45. The AAPC plaintiffs challenged this government-debt exception as a content-based speech regulation that violated the First Amendment. Id. at 2345. Ultimately, the Supreme Court agreed, with six justices concluding "that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment[,]" though the rationales among these six justices varied. Id. at 2343. Justice Kavanaugh, joined by Chief Justice Roberts and Justice Alito, announced the judgment of the Court, finding the government-debt exception unconstitutional but severable from the remainder of the TCPA. Id. at 2344 ("[P]laintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech."). Justice Thomas joined Justice Kavanaugh's Opinion as to the First Amendment analysis, and through separate concurrences, Justice Sotomayor and Justice Gorsuch concurred in the First Amendment judgment. See id. at 2356–57 (Sotomayor, J., concurring in the judgment); id. at 2367 (Gorsuch, J., concurring in the judgment in part and dissenting in part). Justice Breyer, joined by Justice Ginsburg and Justice Kagan, dissented from the Court's First Amendment judgment, but joined Justice Sotomayor, Justice Kavanaugh, Justice Alito, and the Chief Justice in deeming the government-debt exception severable from the rest of the TCPA. Id. at 2363 (Breyer, J., concurring in the judgment with respect to severability and dissenting in part). Thus "seven Members of the Court conclude[d] that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute." Id. at 2343. Justice Gorsuch, joined by Justice Thomas, dissented with regards to severability, criticizing severability doctrine both generally and with regards to the plaintiffs’ claims. Id. at 2365–67 (Gorsuch, J., concurring in the judgment in part and dissenting in part).
This web of partial concurrences and dissents has created some early confusion among lower courts regarding the enforceability of the TCPA between the 2015 amendments and the AAPC decision. Compare Creasy v. Charter Comm'ns, Inc. , 489 F. Supp. 3d 499 (E.D. La. 2020) ("[T]he unconstitutional amended version of § 227(b)(1)(A)(iii) is what applied to [the Defendant] at the time of the challenged communications at issue, and that fact deprives the Court of subject matter jurisdiction to adjudicate [the Defendant's] liability with regard to such communications."), with McCurley v. Royal Sea Cruises, Inc. , Civ. A. No. 17-cv-00986, 2021 WL 288164, at *2 (S.D. Cal. Jan. 28, 2021) ("[O]ne single rationale explains the result joined by seven of the Justices [in AAPC ]: All seven agree that the 2015 amendment should be severed and the liability of parties making robocalls who were not collecting a government debt is not negated."). One court in the Eleventh Circuit recently changed course after initially ruling that § 227(b)(1)(A)(iii) was unenforceable between 2015 and 2020. See Boisvert v. Carnival Corp. , Civ. A. No. 8:220-cv-2076-30SPF, 2021 WL 1329079, at *2 (M.D. Fla. Mar. 12, 2021) ("Upon further reflection, the Court departs from its earlier opinion because, since the Court's Order in Hussain , every court faced with this same issue has concluded that a plaintiff may continue to bring § 227(b) claims post– AAPC . ").
In arguing that AAPC renders the Plaintiff's § 227(b) claim unenforceable for these 2019 calls, the Defendant relies on a minority of district court decisions holding that AAPC ’s severance of the unconstitutional government-debt exception applies prospectively, not retrospectively. (See Def.’s Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 7–8; Def.’s Reply Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 3–4.) Essentially, the Defendant argues for " ‘limited severability’: the idea that one unconstitutional provision renders the whole statute invalid, that severance saves the constitutional provisions going forward, but severance does not save the statute retroactively ...." Moody v. Synchrony Bank , Civ. A. No. 5:20-cv-61, 2021 WL 1153036, at *2 (M.D. Ga. Mar. 26, 2021). Some district courts have relied on this reasoning. See, e.g., Lindenbaum v. Realgy, LLC , 497 F. Supp. 3d 290, 298–99 (N.D. Ohio Oct. 29, 2020), appeal docketed , (Nov. 30, 2020) ("... [A]t the time defendants engaged in the speech at issue, defendant was subject to an unconstitutional content-based restriction. The Court cannot wave a magic wand and make that constitutional violation disappear.").
However, as a majority of district courts have found in addressing this issue, this application of severability doctrine runs contrary to established Supreme Court jurisprudence. The Supreme Court made clear a week before its AAPC decision that "one section of a statute may be repugnant to the Constitution without rendering the whole act void." Seila Law, LLC v. Consumer Fin. Prot. Bureau , ––– U.S. ––––, 140 S. Ct. 2183, 2208, 207 L.Ed.2d 494 (2020) (internal quotation marks omitted). "Generally speaking, when confronting a constitutional flaw in a statute, [courts] try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact." Id. at 2209 (internal quotation marks omitted). Thus, AAPC leaves the remainder of the TCPA—which has continuously prohibited robocalls like the Defendant's alleged calls since 1991—intact. To render the TCPA's robocall prohibition entirely unenforceable during the brief lifespan of the government-debt exception, giving offenders of the unchanged provisions a proverbial get-out-of-jail-free card, clearly runs counter to Congress's intent. See AAPC , 140 S. Ct. at 2356 (emphasizing "Congress's decisive choice to prohibit most robocalls to cell phones"). The troubling logic of such "limited severability" is helpfully illustrated by United States v. Jackson , 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), as highlighted by both AAPC and the Plaintiff. In 1932, the Federal Kidnapping Act ("the FKA") was passed by Congress, which prohibited the interstate transportation of kidnapped persons. See Jackson , 390 U.S. at 570–71, 586, 88 S.Ct. 1209. In 1934, Congress amended the FKA to add a death penalty provision. Id. at 587–88, 88 S.Ct. 1209. In 1968, the Jackson Court found this provision unconstitutional but severable from the rest of the statute. Id. at 591, 88 S.Ct. 1209. The Supreme Court further found that the district court erred in dismissing the indictment against the defendants, and that these individuals "may be prosecuted for violating the Act, but they cannot be put to death under its authority." Id. at 572, 591, 88 S.Ct. 1209. If unconstitutional but severable amendments rendered the FKA unenforceable throughout the amendment's lifespan, the Jackson defendants could not be indicted for violating the FKA, and kidnappers who violated the law between 1934 and 1968 could challenge their convictions. Thus, where an amendment leaves a statute "substantially unchanged in every other respect," as is the case here, the background prohibitions remain enforceable. Id. at 587–88, 88 S.Ct. 1209.
Further supporting this finding is the rationale of seven Justices who found the government-debt exception severable, leaving intact 47 U.S.C. § 227(b)(1)(A)(iii), the general prohibition on robocalls. See McCurley , 2021 WL 288164, at *2. Importantly, Justice Kavanaugh's opinion included a footnote that reads:
As the Government acknowledges, although our decision means the end of the government-debt exception, no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception and before the entry of final judgment by the District Court on remand in this case, or such date that the lower courts determine is appropriate. On the other side of the ledger, our decision today does not negate the liability of parties who made robocalls covered by the robocall restriction.
AAPC , 140 S. Ct. at 2355 n.12 (internal citation omitted). This statement can either be read as binding precedent or mere dicta. Compare McCurley , 2021 WL 288164, at *2 (evaluating AAPC under the Marks rule and deeming footnote 12 binding precedent), with Lindenbaum , 497 F. Supp. 3d at 295 ("[T]he Court finds that footnote 12 constitutes non-binding obitur dictum. "). Regardless of footnote 12's categorization, its logic is persuasive upon this Court, especially in light of the Eleventh Circuit's favorable view of Supreme Court dicta. See Schwab v. Crosby , 451 F.3d 1308, 1325 (11th Cir. 2006) ("[T]here is dicta, and then there is Supreme Court dicta.... We have previously recognized that dicta from the Supreme Court is not something to be lightly cast aside." (internal quotation marks omitted)). Therefore, this Court joins a growing majority of district courts around the country finding § 227(b) of the TCPA enforceable before, during, and after the short-lived government-debt exception.
B. Sufficiency of the Plaintiff's Pleadings
The Defendant argues that the Plaintiff has failed to allege sufficient facts to support a vicarious liability claim against it. Because the Plaintiff has alleged that entities other than the Defendant made the calls at issue here, the Defendant argues it "may be held liable, if at all, only pursuant to a theory of vicarious liability ...." (Def.’s Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 9.) In order to establish this claim, the Defendant argues the Plaintiff must allege that Lyft "had the necessary agency relationship with the direct wrongdoer to support such liability." (Id. (internal quotation marks omitted).) The Defendant argues the Plaintiff has failed to make sufficient allegations regarding the required agency relationship. (Id. at 9–10.) In response, the Plaintiff argues he has made sufficient allegations for his claims to survive this Motion and such disputes are generally resolved by a jury. (Pl.’s Br. in Opp'n to Def.’s Mot. for Judgment on the Pleadings, at 11–12, 15–17.) In its Reply Brief, the Defendant emphasizes its view that the Plaintiff's allegations establishing agency are merely conclusory while highlighting alleged contradictions between the Plaintiff's Amended Complaint and his Opposition Brief. (Def.’s Reply Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 6–8.)
The Court must first address what evidence is before it in evaluating this Motion. In his briefing, the Plaintiff alleges that the Defendant "relies heavily on a declaration, and exhibits, from a third party" in making this Motion. (Pl.’s Br. in Opp'n of the Def.’s Mot. for Judgment on the Pleadings, at 3.) Given this alleged reliance, the Plaintiff asks the Court to either exclude this evidence or convert the Motion into one for summary judgment. (Id. at 2–3.) In response, the Defendant argues that it only relies upon the pleadings for support of its Motion, and any additional evidence is offered in support of its Rule 19 claim. (Def.’s Reply Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 5.)
For the purposes of this Motion, the Court will consider the Plaintiff's Amended Complaint, the Defendant's Answer, and exhibits thereto in evaluating the sufficiency of the Plaintiff's Amended Complaint. Federal Rule of Civil Procedure 7(a) "defines ‘pleadings’ to include both the complaint and the answer, and Rule 10(c) provides that a copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes." Horsley v. Feldt , 304 F.3d 1125, 1134 (11th Cir. 2002). The sole exhibit relevant here, attached to the Defendant's Answer, is a written instrument. (See Answer, Ex. 1.) Therefore, the Court will evaluate this material without converting this Motion into one for summary judgment. Horsley , 304 F.3d at 1134. All other evidence—such as exhibits to the Plaintiff's Opposition Brief—will not be considered at this time. In accordance with the Legal Standards described above, the factual allegations in the Plaintiff's Amended Complaint are taken as true and all inferences are drawn in his favor.
The Defendant argues the Plaintiff has insufficiently pleaded the required agency relationship to support a vicarious liability claim. In Dish Network, LLC , 28 F.C.C.R. 6574, 6582–86 (2013), the Federal Communications Commission ("FCC") made clear that while direct liability can only attach to entities that "initiate" calls, "vicarious seller liability under federal common law agency principles is also available for violations of section 227(b)." See also Campbell-Ewald Co. v. Gomez , 577 U.S. 153, 168, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016) ("The Ninth Circuit deferred to [the Dish Network, LLC ] ruling, and we have no cause to question it."); Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A. , 781 F.3d 1245, 1254–55 (11th Cir. 2015) (relying on the Dish Network, LLC decision and correspondence with the FCC in evaluating a TCPA case). Beyond liability under the general agency principle of actual authority, the FCC has noted:
A principal may be liable in circumstances where a third party has apparent (if not actual) authority. Such apparent authority holds a principal accountable for the results of third-party beliefs about an actor's authority to act as an agent when the belief is reasonable and is traceable to a manifestation of the principal. Other principles of agency law may support liability in particular cases. For example, a seller may be liable for the acts of another under traditional agency principles if it ratifies those acts by knowingly
accepting their benefits. Such ratification may occur through conduct justifiable only on the assumption that the person consents to be bound by the act's legal consequences.
Dish Network, LLC , 28 F.C.C.R. at 6586–87 (internal quotation marks, punctuation, and footnotes omitted). To survive this Motion, the Plaintiff "must allege sufficient facts to render it facially plausible that an agency relationship is present." Franza v. Royal Caribbean Cruises, Ltd. , 772 F.3d 1225, 1236 (11th Cir. 2014) (internal quotation marks and punctuation omitted). The Defendant argues that the Plaintiff's Amended Complaint fails to sufficiently plead Yodel's actual or apparent authority, as well as the Defendant's ratification of Yodel's actions. (Def.’s Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 11–18.) In response, the Plaintiff argues that agency relationships are generally matters for a jury, and that he has properly pleaded actual and apparent authority here. (Pl.’s Br. in Opp'n to Def.’s Mot. for Judgment on the Pleadings, at 11–17.) The Court will evaluate the Plaintiff's pleading of each type of potential agency relationship in turn.
The Defendant discusses ratification even though "it does not appear that Plaintiff has advanced this theory of vicarious liability ...." (Def.’s Br. in Supp of Def.’s Mot. for Judgment on the Pleadings, at 18.) In his Opposition Brief, the Plaintiff does not address ratification, instead relying on actual and apparent authority. As such, the Court will not address ratification here.
1. Actual Authority
Actual authority "requires: ‘(1) the principal to acknowledge that the agent will act for it; (2) the agent to manifest an acceptance of the undertaking; and (3) control by the principal over the actions of the agent.’ " Franza , 772 F.3d at 1236 (quoting Whetstone Candy Co. v. Kraft Foods, Inc. , 351 F.3d 1067, 1077 (11th. Cir. 2003) ). The Defendant argues the Plaintiff's Amended Complaint fails in two ways. First, the Defendant claims that because it "has no contractual or other relationship or communications with Yodel regarding the calls Plaintiff complains of, it did not and could not have granted actual authority to Yodel for" the calls relevant here. (Def.’s Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 12.) Second, the Defendant argues that the Plaintiff has failed to plead facts indicating the Defendant's control over Yodel sufficient to indicate an agency relationship. (Id. at 13–14.)
Though the hurdle of pleading an agency relationship is not a substantial one, it is a close question whether the Plaintiff has cleared it with regards to actual authority. There are three paragraphs in the Amended Complaint that remark upon the Defendant's relationship or communication with Yodel: that the relevant calls were made "pursuant to an arrangement between [the Defendant] and Yodel" (Am. Compl. ¶ 3.); that the Defendant "engages third parties, such as" Yodel (Id. ¶ 29.); and, that the Defendant "hired Yodel to sell its services using telemarketing calls" (Id. ¶ 62.) The only allegation here that "render[s] it facially plausible that an agency relationship is present" is the allegation the Defendant hired Yodel. Franza , 772 F.3d at 1236. Construing all inferences in the Plaintiff's favor, an allegation that the Defendant hired Yodel would indicate that Lyft acknowledged Yodel would act for it, that Yodel accepted the undertaking, and that the Defendant could control Yodel's efforts. However, in his briefing, the Plaintiff agrees with the Defendant that Yodel was a subcontractor, hired not by Lyft but by other entities. (See Pl.’s Br. in Opp'n to Def.’s Mot. for Judgment on the Pleadings, at 5.) Despite this undisputed arrangement, the Plaintiff argues that Yodel is the Defendant's subagent, preserving the agency relationship between it and the Defendant. (Id. at 12–13.) However, without more, the Plaintiff has not pleaded sufficient facts indicating the Defendant's control over Yodel. There are numerous forms of direct and circumstantial evidence of control that could satisfy the Plaintiff's burden: how the agent is paid; whether the principal provides equipment or other support to the agent; and, the principal's right to terminate the agent. See Franza , 772 F.3d at 1236–37 (describing, in a different legal context, considerations as " ‘probative’ of control"). "Control is the fulcrum of" actual authority, and the Plaintiff merely alleges the Yodel was hired by the Defendant. By failing to plead any direct or circumstantial evidence of control, the Plaintiff cannot proceed on actual authority. Id. at 1236.
2. Apparent Authority
"Unlike actual agency, the doctrine of apparent agency allows a plaintiff to sue a principal for the misconduct of an independent contractor who only reasonably appeared to be an agent of the principal." Id. at 1249. As the Eleventh Circuit stated:
[W]e have repeatedly observed that apparent agency liability requires finding three essential elements: first, a representation by the principal to the plaintiff, which, second, causes the plaintiff reasonably to believe that the alleged agent is authorized to act for the principal's benefit, and which, third, induces the plaintiff's detrimental, justifiable reliance upon the appearance of agency.
Id. at 1252. The Defendant argues that the Plaintiff's Amended Complaint "alleges no facts that would support the conclusion that Lyft made any statement or performed any act that would support a reasonable belief by the Plaintiff that Yodel was authorized to act as Lyft's agent." (Def.’s Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 16.) In response, the Plaintiff relies upon the FCC's decision in Dish Network, LLC , which provided guidance regarding the types of evidence illustrative of apparent authority. 28 F.C.C.R. at 6592. These examples include: the principal granting the telemarketer access to internal systems or information typically subject to the principal's exclusive control; the telemarketer's ability to enter information on the principal's internal systems; and, the principal's involvement in the telemarketer's script. Id. Importantly, the FCC also noted that:
[A] seller would be responsible under the TCPA for the unauthorized conduct of a third-party telemarketer that is otherwise authorized to market on the seller's behalf if the seller knew (or reasonably should have known) that the telemarketer was violating the TCPA on the seller's behalf and the seller failed to take effective steps within its power to force the telemarketer to cease that conduct.
Id. The Plaintiff argues his Amended Complaint satisfies all of these examples identified by the FCC. (Pl.’s Br. in Opp'n to Def.’s Mot. for Judgment on the Pleadings, at 17.)
The Plaintiff's Amended Complaint has cleared the low pleading hurdle of apparent authority. The Plaintiff alleges that the Defendant "knew (or reasonably should have known) that Yodel was violating the TCPA on its behalf and failed to take effective steps within its power to force the telemarketer to cease that conduct." (Am. Compl. ¶ 65.) The Defendant claims the Plaintiff "provides no factual basis for that assertion[,]" rendering the allegation conclusory. (Def.’s Reply Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 13.) However, this allegation is supported by the Plaintiff's claim that his counsel had "previously contacted Lyft about receiving pre-recorded calls from Yodel," yet the calls to the Plaintiff's cell phone continued. (Am. Compl. ¶ 68.) This scenario was explicitly highlighted by the FCC in its Dish Network, LLC decision, and the Amended Complaint contains sufficient factual allegations to make such a finding plausible. At this stage in the litigation, the Plaintiff has adequately pleaded apparent authority—and therefore vicarious liability—under the TCPA.
The Court notes that at first glance, this scenario does not appear to require a principal's manifestation to a third party creating a reasonable belief in that third party, an essential element of apparent authority in the Eleventh Circuit. See Restatement (Third) of Agency, § 2.03 (2006) ; see also id. , § 4.01 cmt. d ("[T]he principal's manifestation to the third party is essential to the presence of apparent authority."). The footnote supporting the FCC's legal analysis indicates the parties in Dish Network, LLC merely agreed that this scenario would create liability for the principal, and the decision cites no other legal authority for this finding. Dish Network, LLC , 28 F.C.C.R. at 6592 n.138. However, the Restatement makes clear that a principal's manifestation creating apparent authority can take many forms:
Silence may constitute a manifestation when, in light of all the circumstances, a reasonable person would express dissent to the inference that other persons will draw from silence. Failure then to express dissent will be taken as a manifestation of affirmance.
Restatement (Third) of Agency § 1.03. This definition applies here, as the Plaintiff alleges that Yodel made calls on the Defendant's behalf that violated the TCPA and the behavior continued after the Defendant was notified of Yodel's actions. Given the Restatement's broad definition of "manifestation," the Supreme Court and Eleventh Circuit's favorable recognition of the Dish Network, LLC decision, and the early stage of these proceedings, the Plaintiff's claim can proceed relying upon apparent authority.
C. Rule 19 Analysis
As a final argument, the Defendant argues that this case should be dismissed for failure to join indispensable parties—here, the contractors and subcontractors who hired Yodel. Federal Rule of Civil Procedure 19 governs the required joinder of indispensable parties and outlines a two-part analysis. First, the Court must determine whether or not the nonparties are "necessary parties." See Winn-Dixie Stores, Inc. v. Dolgencorp, LLC , 746 F.3d 1008, 1039 (11th Cir. 2014). A party is necessary where:
(A) in that person's absence, the court cannot accord complete relief among existing parties; or
(B) that person claims an interest relating to the subject action and is so situated that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
Fed. R. Civ. P. 19(a)(1). If joinder of a necessary person is not feasible—the person's joinder destroys the parties’ diversity, the person is not subject to personal jurisdiction, or the person objects to venue—the Court must determine "whether the Rule 19(b) factors permit the litigation to continue if the party cannot be joined, or instead whether they are indispensable." Winn-Dixie Stores, Inc. , 746 F.3d at 1039. Because the Court has federal question jurisdiction over this action and there are no venue concerns here, the Defendant argues that no Rule 19(b) analysis is required. (Def.’s Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 22.) The Defendant then argues that all of the Rule 19(a) requirements are satisfied, even though only one is required. (Id. at 23.) In response, the Plaintiff argues that the existence of other potential violators or subagents does not render those parties necessary, and the Court can provide the parties complete relief without joining other entities. (Pl.’s Br. in Opp'n to Def.’s Mot. for Judgment on the Pleadings, at 18–20.) In its Reply, the Defendant relies heavily upon the significance of the non-parties to the action, as "their involvement is one of the most important issues in the litigation." (Def.’s Reply Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 15.)
Because the Defendant has not shown that these entities are "necessary" under Rule 19(a), the Court will not require their joinder. First, the Court can provide the parties complete relief without joining additional parties. The Plaintiff has requested injunctive relief to stop future calls barred by the TCPA and damages for past calls to his cell phone. (Am. Compl. at 18.) Lyft relies on the bankruptcy court's order that Yodel can neither defend itself nor be subject to judgment and the absence of other entities involved in these calls to argue that "[i]f Lyft prevails on this or another of its dispositive motions, then there is no way to accord complete relief to Plaintiff ...." (Def.’s Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 24.) Regardless of Yodel's bankruptcy and the absence of other entities involved in these calls, the Court can accord the Plaintiff complete relief here. Lyft is capable of satisfying any damages, and an injunction against both Lyft and Yodel—or, as the FCC might refer to them, the "seller" and the "telemarketer"—would halt the challenged conduct. See Dish Network, LLC , 28 F.C.C.R. at 6583.
Second, the Defendant argues that "the non-parties have an interest in preserving and asserting Yodel's and their own defenses[ ] that cannot be adequately protected without their presence, a determination of which in this case[ ] could expose them to further and potentially conflicting liability." (Def.’s Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 24.) This argument combines both tests under Rule 19(a)(1)(B), and it fails for multiple reasons. First, the Defendant does not make any showing that the non-parties have claimed any interest in this case. As the plain language of Rule 19 makes clear—and as the Defendant's summary of the Rule omits—the Rule 19(a)(1)(B) factors apply when the absent party "claims an interest relating to the subject of the action ...." Fed. R. Civ. P. 19 ; (Def.’s Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 23.) If a defendant seeks refuge in Rule 19(a)(1)(B), it must allege in its own pleadings that the non-parties claim an interest in the litigation. See F.D.I.C. v. First Am. Title Ins. Co. , 611 F. App'x 522, 530 (11th Cir. 2015) (requiring a defendant to allege in its pleadings that a non-party claims an interest in the action to seek Rule 19(a)(1)(B) relief); see also Hickerson v. Enterprise Leasing Co. of Ga., LLC , 818 F. App'x 880, 884 n.6 (11th Cir. 2020) (requiring a non-party to claim an interest in the subject of the action under Rule 19(a) where complete relief is available). The Defendant has not done this, so it cannot rely on either Rule 19(a)(1)(B) test. In addition, the Defendant's arguments misunderstand the term "conflicting obligations." (Def.’s Br. in Supp. of Def.’s Mot. for Judgment on the Pleadings, at 24–25.) As the Eleventh Circuit has noted:
"Inconsistent obligations" are not the same as inconsistent adjudications or results. Inconsistent obligations occur when a party is unable to comply with one court's order without breaching another court's order concerning the same incident. Inconsistent adjudications or results, by contrast, occur when a defendant successfully defends a claim in one forum, yet loses on another claim arising from the same incident in another forum.
Winn-Dixie Stores, Inc. , 746 F.3d at 1040 (internal quotation marks and punctuation omitted). The Defendant expresses concern about inconsistent adjudications, not inconsistent obligations, and the Court does see any argument or evidence that would suggest conflicting orders would attach to the Defendant. For these reasons, Rule 19(a)(1)(B) cannot apply, and the Defendant has not made a case that the relevant non-parties are necessary parties. As such, Rule 19 does not require their joinder, and this action can proceed with the current parties.
IV. Conclusion
For the reasons set forth above, the Defendant's original Motion for Judgment on the Pleadings [Doc. 134] is DENIED as moot, and the Defendant's Amended Motion for Judgment on the Pleadings [Doc. 142] is DENIED.
SO ORDERED, this 7 day of June, 2021.