United States District Court, D. New Jersey
JUDY WILSON, on behalf of herself and all others similarly situated, Plaintiff,
QUEST DIAGNOSTICS INC., Defendant.
WILLIAM J. MARTINI, U.S.D.J.
matter arises out of Plaintiff Judy Wilson's
("Plaintiffs") allegation that Defendant Quest
Diagnostics Inc. ("Defendant") violated the
Telephone Consumer Protection Act of 1991 ("TCPA")
when Defendant made an unsolicited call to Plaintiff using a
predictive dialer. The matter comes before the Court on
Defendant's motion for reconsideration, ECF No. 45, of
the Court's December 10, 2018 opinion
("Opinion"), ECF No. 14, denying Defendant's
motion to dismiss. For the reasons set forth below, the
motion is DENIED.
argues the Court should reconsider its Opinion because a
subsequently decided Supreme Court case, PDR Network, LLC
v. Carlton & Harris Chiropractic, Inc., 139 S.Ct.
2051 (2019), brought about an intervening change in the law.
See Mot. at 2-5. Defendant is incorrect. In PDR
Network, the Supreme Court was "asked to decide
whether the Hobbs Act's commitment of 'exclusive
jurisdiction' to the courts of appeals requires a
district court in a private enforcement suit like this one to
follow the FCC's 2006 Order interpreting the
[TCPA]." 139 S.Ct. at 2055. The Court declined to answer
that question because "the extent to which the Order
binds the lower courts may depend on the resolution of two
preliminary sets of questions." Id.
concurring opinion, Justice Kavanaugh concluded "the
Hobbs Act does not expressly preclude judicial review of
agency legal interpretations in enforcement actions.
Therefore, the Hobbs Act does not bar [a party] from arguing
that the FCC's legal interpretation of the TCPA is
incorrect. The District Court is not bound by the FCC's
interpretation." Id. at 2066 (Kavanagh, J.,
concurring). Justice Thomas also issued a concurrence stating
the FCC rule at issue was "clearly interpretive"
and not binding on district courts in enforcement actions.
See Id. at 2056 n.* (Thomas, J., concurring).
urges this Court to reconsider its Opinion in accordance with
Justice Kavanaugh and Thomas's concurrences. See
Mot. at 4, *7-10. It argues that, as stated in those
opinions, this Court was not bound by the FCC's 2003 and
2008 guidance on the definition of an "autodialer."
Id. Thus, Defendant argues, because the Court
followed 2003 and 2008 FCC guidance in holding Plaintiff
sufficiently alleged Defendant's use of an autodialer,
the Opinion should be revisited.
argument has two fatal flaws. First, it improperly relies on
concurring opinions. Successful motions for reconsideration
"rely on one of three grounds: (1) an intervening
change in controlling law, (2) the availability of
new evidence; or (3) the need to correct clear error of law
or prevent manifest injustice. Lazaridis v. Wehmer,
591 F.3d 666, 669 (3d Cir. 2010) (citation omitted) (emphasis
added). Justices Kavanagh and Thomas's concurrences do
not change "controlling law." See Maryland v.
Wilson, 519 U.S. 408, 412-13 (1997) (finding statement
in concurrence non-binding); Germanio v. Goodyear Tire
& Rubber Co., 732 F.Supp. 1297, 1300 (D.N.J. 1990)
("This court is bound by precedents, not
concurrences"). Therefore, the Court rejects
Defendant's arguments for reconsideration based on the
concurrences. See Lazaridis, 591 F.3d at 669
(affirming denial of motion for reconsideration due to
motion's improper basis).
excerpting Defendant's concurrence-based arguments,
PDR Network did not change the law
"controlling" this case. The majority opinion
explicitly declined to answer whether district courts were
required to accept the FCC guidance at issue because
"the extent to which the Order binds the lower courts
may depend on the resolution of two preliminary sets of
questions." PDR Network, 139 S.Ct. at 2055
(majority opinion). The first question that the Court
remanded for the Fourth Circuit to answer was whether the FCC
Order was "legislative" or
"interpretive." Id. "If the relevant
portion of the 2006 Order is the equivalent of an
'interpretive rule,' it may not be binding on a
district court, and a district court therefore may not be
required to adhere to it." Id. Based on that
passage, Defendant urges reconsideration because the guidance
this Court relied on was "interpretive," and thus
"not binding." Mot. at 5. But this argument was
available long before PDR Network reiterated that
interpretive rules may not be binding on district courts.
Defendant's Motion even cites a 1977 Supreme Court
opinion making the same proclamation. See Id.
(citing Batterton v. Francis, 432 U.S. 416, 425 n.9
(1977)). Accordingly, "controlling law" has not
in PDR Network, the Supreme Court also remanded to
determine whether the defendant had "a 'prior'
and 'adequate' opportunity to seek judicial review of
the Order." PDR Network, 139 S.Ct. at 2055.
"If the answer is 'no,' it may be that the
Administrative Procedure Act permits PDR to challenge the
validity of the Order in this enforcement proceeding."
Id. at 2056. Here, Defendant argues it "could
not have had a prior and adequate opportunity to seek a Hobbs
Act appeal," and thus should be permitted to challenge
FCC guidance relied on in the Opinion. Mot. at 9. But once
again, regardless of the merits, that argument was available
under the Administrative Procedures Act before PDR
Network, and is thus an improper basis for
reconsideration. See 5 U.S.C. § 703
(“Except to the extent that prior, adequate, and
exclusive opportunity for judicial review is provided by
law, agency action is subject to judicial review in
civil or criminal proceedings for judicial enforcement."
(emphasis added)); Pub. L. 94-574, § 1, Oct. 21, 1976,
90 Stat. 2721 (enacting Section 703); see also
Lazaridis, 591 F.3d at 669 (listing proper basis for
reconsideration); Boarhead Corp. v. Erickson, 923
F.2d 1011, 1024 (3d Cir. 1991) (rejecting argument that
statute provided inadequate review procedures).
Defendant's arguments are not based on any actual change
in controlling law, its Motion for Reconsideration, ECF No.
45, is DENIED. An appropriate order follows.