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Victory Processing, LLC v. Fox

United States District Court, D. Montana, Helena Division

February 9, 2018

TIM FOX, in his official capacity as Attorney General for the State of Montana, Defendant.


          Charles C. Lovell Judge.

         Before the Court are cross-motions for summary judgment filed by the parties. Having examined the entire record, the Court is prepared to rule.

         I. BACKGROUND

         This is a declaratory judgment action claiming violation of Plaintiffs' civil rights, 42 U.S.C. § 1983, by alleging a deprivation of Plaintiffs' right to free speech guaranteed by the First and Fourteenth Amendments of the U.S. Constitution. (ECF No. 1, Compl. ¶ 1.)

         Plaintiff VPLLC is a limited liability company organized in 2012 in the State of Michigan, with offices in Grand Rapids, Michigan. (ECF No. 1, Compl. ¶ 1.) Plaintiff Dishaw is the managing member of VPLLC. (ECF No. 27, Dishaw Aff. ¶ 3.) Dishaw states that VPLLC “engages in political consulting and conducts data gathering and dissemination projects regarding political campaigns, election races, ballot initiatives . . . throughout the United States, primarily through the use of automated telephone calls.” (ECF No. 27, Dishaw Aff. ¶ 5.)

         Plaintiffs VPLLC and Dishaw assert that a Montana statute, Mont. Code Ann. § 45-8-216, enacted in 1991, deprives them of the ability to convey political messages to Montana voters. The statute provides that

(1) A person may not use an automated telephone system, device, or facsimile machine for the selection and dialing of telephone No. and playing of recorded messages if a message is completed to the dialed No. for the purpose of:
(a) offering goods or services for sale;
(b) conveying information on goods or services in soliciting sales or purchases;
(c) soliciting information;
(d) gathering data or statistics; or
(e) promoting a political campaign or any use related to a political campaign.
(2) This section does not prohibit the use of an automated telephone system, device, or facsimile machine described under subsection (1) for purposes of informing purchasers of the receipt, availability for delivery, delay in delivery, or other pertinent information on the status of any purchased goods or services, of responding to an inquiry initiated by any person, or of providing any other pertinent information when there is a preexisting business relationship. This section does not prohibit the use of an automated telephone system or device if the permission of the called party is obtained by a live operator before the recorded message is delivered.

Mont. Code Ann. §45-8-216 (2017).


         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support that assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations ... admissions, interrogatory answers, or other materials, ” or by “showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B).

         The summary judgment movant bears the initial burden as to the elements of the causes of action about which there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-movant to establish the existence of a material fact. Id. The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts” by “com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e) (1963) (amended 2010)). A disputed fact raises a genuine issue for trial if it would permit a reasonable jury to return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must construe disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). However, bare assertions standing alone are insufficient to create material facts. Liberty Lobby, 477 U.S. at 247-48. If the burden shifts, the non-moving party must produce “significant probative evidence, ” and “may not rely merely on the unsupported or conclusory allegations of [his] pleadings.” Coverdell v. Dep't of Soc. & Health Servs., 834 F.2d 758, 769 (9th Cir. 1987).


         A. STANDING.

         Article III of the U.S. Constitution states the “case or controversy” requirement for subject matter jurisdiction. Allen v. Wright,468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Plaintiffs' unverified Complaint asserts a First Amendment pre-enforcement challenge against Montana's robocalling statute. Defendants challenge Plaintiffs' standing to present this claim because the claim rests on the legal rights and interests of others, and parties ordinarily do not enforce the constitutional rights of others. In order to demonstrate third-party standing, Plaintiffs must show that they have (1) suffered an injury in fact, (2) have a close relation to the third party, and (3) the third party is hindered from protecting his or her own interests. Wasson v. Sonoma County Junior College,203 F.3d 659, 663 (9th Cir. 2000) (citing Powers v. Ohio,449 U.S. 400, 410-11, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991)). Plaintiffs seem to meet the first two prongs of this test in that Plaintiffs may lose business and profits in Montana if they cannot send fully-automated political campaign robocalls to Montana residences (and can be fined if they do), and there is a contractual relationship between Plaintiffs and their political campaign customers. The Court does not see any hindrance, however, to the third party's ability to litigate this question directly, ...

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