United States District Court, M.D. Florida, Fort Myers Division
STEPHAN H. SLIWA, individually and on behalf of all others similarly situated, Plaintiff,
BRIGHT HOUSE NETWORKS, LLC and ADVANCED TELESOLUTIONS, INC., Defendants, and UNITED STATES OF AMERICA, Intervenor.
OPINION AND ORDER
E. STEELE JUDGE
matter comes before the Court on defendants' motions to
certify an interlocutory appeal from a prior Opinion and
Order. Bright House Networks, LLC's Motion for
Certification under 28 U.S.C. § 1292(b) (Doc. #133) was
filed on April 9, 2018. The United States of America filed a
Response in Opposition (Doc. #134) on April 20, 2018.
Plaintiff Stephan H. Sliwa joined in the United States'
Response in Opposition on April 23, 2018 (Doc. #135), and on
April 24, 2018, defendant Advanced Telesolutions, Inc. joined
in Bright House's Motion for Certification under 28
U.S.C. § 1292(b). (Doc. #136.) For the reasons set forth
below, the Court denies the Motions for Certification under
28 U.S.C. § 1292(b).
Stephan H. Sliwa (Plaintiff) filed a five-count Amended Class
Action Complaint (Doc. #46) against Bright House Networks,
LLC (Bright House) and Advanced Telesolutions, Inc. (ATI)
alleging violations of the Telephone Consumer Protection Act
(TCPA), 47 U.S.C. § 227 et seq., the Florida Consumer
Collection Practices Act (FCCPA), Fla. Stat. § 559.55 et
seq., and the Fair Debt Collection Practices Act (FDCPA), 15
U.S.C. § 1692 et seq. Plaintiff alleges that Defendants
harassed him by calling his cellphone hundreds of times using
an automatic telephone dialing system or pre-recorded or
artificial voice technology, even after he instructed them to
stop, in an attempt to recover a consumer debt that Plaintiff
owed Bright House.
16, 2017, Bright House filed a Motion for Judgment on the
Pleadings (Doc. #73), arguing that it cannot be held liable
for Plaintiff's TCPA claims because Section
227(b)(1)(A)(iii) - the TCPA provision Plaintiff relies upon
- violates the First Amendment. The Court denied Bright
House's Motion for Judgment on the Pleadings on March 29,
2018 (Doc. #132) without reaching the merits of the First
Amendment issue. The Court found that, assuming Section
227(b)(1)(A)(iii) violates the First Amendment, the offending
portion of that provision - the Government-Debt Exception -
would be severable, and the remainder of the provision would
still expose Bright House to liability under the facts
alleged in the Amended Complaint. (Doc. # 132, pp. 13-15.)
House, joined by defendant Advanced Telesolutions, seeks to
certify the following issues to the Eleventh Circuit Court of
Appeals: Whether the Government-Debt Exception
“triggers strict scrutiny, and . . . fails strict
scrutiny and cannot be severed.” (Doc. #133, p. 5.)
general principle, interlocutory orders are not immediately
appealable. See CSX Transp., Inc. v. Kissimmee Util.
Auth., 153 F.3d 1283, 1285 (11th Cir. 1998). However, 28
U.S.C. § 1292 provides for an exception to the general
rule. Under Section 1292(b), a district court may certify an
interlocutory order for immediate appellate review if the
court makes three findings: (1) the interlocutory order
“involves a controlling question of law”; (2)
over which there is a “substantial ground for
difference of opinion”; and (3) the immediate appeal
“may materially advance the ultimate termination of the
litigation . . . .” 28 U.S.C. § 1292(b).
“controlling question of law” is one that
involves the analysis of a “pure” legal issue and
does not require a court of appeals to “delve beyond
the surface of the record in order to determine the
facts.” McFarlin v. Conseco Servs., LLC, 381
F.3d 1251, 1259 (11th Cir. 2004). A “substantial ground
for difference of opinion” over a “controlling
question of law” exists when its resolution is
“[not] so clear . . . .” Id. at 1258. An
immediate appeal “may materially advance the ultimate
termination of the litigation” when “resolution
of [the] controlling legal question would serve to avoid a
trial or otherwise substantially shorten the
litigation.” Id. at 1259.
district court certifies an interlocutory order for immediate
appellate review, “appellate jurisdiction applies to
the order certified to the court of appeals, and is
not tied to the particular question formulated by the
district court.” Yamaha Motor Corp., U.S.A. v.
Calhoun, 516 U.S. 199, 205 (1996). Thus, “the
appellate court may address any issue fairly included within
the certified order . . . .” Id.
House seeks interlocutory appellate review of whether the
Government-Debt Exception “triggers strict scrutiny,
and . . . fails strict scrutiny and cannot be
severed.” (Doc. #133, p. 5.) The Court's prior
Opinion and Order did not address two of these three issues
(whether strict scrutiny is the standard and whether the
statute fails strict scrutiny), and therefore certification
under § 1292 is not appropriate as to those issues.
the severability issue, the Court finds that two of the three
factors weigh against certification. The first Section 1292(b)
factor is easily satisfied because the severability of the
Government-Debt Exception is purely an issue of law.
McFarlin, 381 F.3d at 1259.
the second factor, the Court continues to find there are no
substantial grounds for a difference of opinion regarding
severability of the Government-Debt Exception if it does
indeed violate the First Amendment. (Doc. #132, pp. 13-15.)
Bright House argues that there are substantial grounds for
difference of opinion regarding its severability because
three California district judges have certified this issue
for interlocutory review. See Gallion v. Charter
Commc'ns Inc.,287 F.Supp.3d 920, 931 (C.D. Cal.
2018); Brickman v. Facebook, Inc., No.
16-CV-00751-TEH, 2017 WL 1508719, at *3-*4 (N.D. Cal. Apr.
27, 2017); Holt v. Facebook, Inc., 240 F.Supp.3d
1021, 1034 (N.D. Cal. 2017). Those cases, however, are not
persuasive because they analyzed the constitutionality of
Section 227(b)(1)(A)(iii) and found that the provision (1)