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Sliwa v. Bright House Networks, LLC

United States District Court, M.D. Florida, Fort Myers Division

May 21, 2018

STEPHAN H. SLIWA, individually and on behalf of all others similarly situated, Plaintiff,
v.
BRIGHT HOUSE NETWORKS, LLC and ADVANCED TELESOLUTIONS, INC., Defendants, and UNITED STATES OF AMERICA, Intervenor.

          OPINION AND ORDER

          JOHH E. STEELE JUDGE

         This 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).

         I.

         Plaintiff 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.

         On June 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.)

         Bright 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.)

         II.

         As a 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).

         A “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.

         When a 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.

         III.

         Bright House seeks interlocutory appellate review of whether the Government-Debt Exception “triggers strict scrutiny, and . . . fails strict scrutiny and cannot be severed.”[1] (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.

         As to the severability issue, the Court finds that two of the three factors weigh against certification.[2] 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.

         As to 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) triggered ...


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