United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Defendant Sunrun
Inc.'s (Sunrun) (incorrectly identified in the caption as
“Sunrun Inc. a/k/a Clean Energy Experts LLC”)
Motion to Dismiss Plaintiff's Complaint with Prejudice,
or, Alternatively, without Prejudice and the Declaration of
A. Paul Heeringa (collectively, Motion), filed September 19,
2018. (Docs. 9 and 10). Plaintiff Laurence Barker filed his
Response in opposition on October 1, 2018. (Doc. 13). Sunrun
filed its Reply on October 15, 2018. (Doc. 16). Having
considered the briefing, the record, and the applicable law,
the Court grants Sunrun's Motion to Dismiss
Plaintiff's Complaint with Prejudice, or, Alternatively,
without Prejudice (Doc. 9) and dismisses Plaintiff's
Complaint without prejudice. Plaintiff may move to file an
Amended Complaint pursuant to Federal Rule of Civil Procedure
15(a)(2) within fourteen (14) days from the date of entry of
this Memorandum Opinion and Order.
Background and Procedural History
lawsuit stems from three unsolicited calls and one voicemail
that Plaintiff received on his cell phone from telemarketers
attempting to interest him in purchasing a solar electricity
system for his home. (Doc. 10-1) at ¶¶ 18-33.
Plaintiff now bring claims under the Telephone Consumer
Protection Act (TCPA), 47 U.S.C. § 227, and the New
Mexico Unfair Practices Act (UPA), NMSA § 57-12-22
(1978), and common law claims for nuisance, trespass to
chattel, and civil conspiracy.
3, 2017, Plaintiff's Caller ID indicated a call from
505-636-1016, located in Aztec, NM. (Id.) at ¶
18. Plaintiff answered the call and spoke to a live
telemarketer for approximately five (5) minutes.
(Id.) at ¶¶ 18-19. The telemarketer
attempted to interest Plaintiff in purchasing a solar
electricity system for his home and identified the seller or
sponsor of the call as Smart Home Solar, located in San Jose,
CA. (Id.) at ¶¶ 20-21.
weeks later, on May 17, 2017, Plaintiff received a call from
505-207-4578, located in Albuquerque, NM. (Id.) at
¶ 22. Plaintiff answered the call and spoke to a live
telemarketer for approximately four (4) minutes.
(Id.) at ¶ 23. The telemarketer again attempted
to interest Plaintiff in purchasing a solar electricity
system for his home and identified the seller or sponsor of
the call as Smart Home Solar in Austin, TX. (Id.) at
¶¶ 24-25. During this call, Plaintiff agreed to
meet or speak with a local contractor or representative about
purchasing a solar system for his home. (Id.) at
¶ 26. Later that same day, Plaintiff received a
voicemail message from “Cassandra, ” with Solar
Energy Works in Albuquerque, who wanted to set up an
appointment regarding a solar electricity system for
Plaintiff's home. (Id.) at ¶ 27. Caller ID
identified the call as coming from 505-750-3423.
on September 5, 2017, Plaintiff received a call from an
unspecified number that turned out to be a live telemarketer,
with whom Plaintiff spoke for approximately ten (10) minutes.
(Id.) at ¶¶ 28-29. The telemarketer again
sought to interest Plaintiff in a solar electricity system
for his home and identified the seller or sponsor of the call
as Solar Works 3 in West Palm Beach, FL. (Id.) at
¶¶ 30-31. Plaintiff again agreed to meet or speak
with a local contractor or representative about purchasing a
solar electricity system for his home. (Id.) at
¶ 32. Later that day, Plaintiff received a call from
“Maude, ” with Solar Works Energy, who wanted to
set up an appointment regarding a solar electricity system
for Plaintiff's home. (Id.) at ¶ 33. Around
ten a.m. on September 7, 2017, Cassy Rivera arrived at
Plaintiff's home and presented a business card
identifying her employer as Solar Works Energy.
(Id.) at ¶ 34.
alleges that he has “sworn statements” from
“Nestor, ” with Solar Works Energy, and from
Modernize Inc. which connect the telemarketing calls to
“Defendants herein” as the “source of the
‘lead, '” meaning Plaintiff's name and
phone number. (Id.) at ¶¶ 35-36. These
allegedly sworn statements are not attached to the Complaint
or to the Response.
contends that Defendants are vicariously liable for
violations of the TCPA and UPA, and for common law claims
because “Defendants herein” provided the
“leads” to Nestor” and Modernize. Plaintiff
does not allege that Sunrun itself initiated or otherwise
placed the offending telephone calls.
filed his Complaint in the Second Judicial District for the
State of New Mexico on August 2, 2018. (Doc. 10-1). Sunrun
filed its Notice of Removal to this Court on September 12,
2018, based on federal question and supplemental jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1367. (Doc. 1).
Sunrun now moves for dismissal under Rules 12(b)(1) for lack
of subject matter jurisdiction, contending Plaintiff did not
adequately allege Article III standing; 12(b)(5) for
insufficient service of process; and 12(b)(6) for failure to
state a claim upon which relief can be granted.
does not challenge removal of this matter. Nevertheless, it
appears that this case meets the requirements for removal
under 28 U.S.C. § 1441 because the Complaint clearly
invokes federal question jurisdiction and was timely removed.
However, as explained below, mere invocation of a federal
question and technical compliance with the removal statute
alone are not enough to survive the Rule 12(b)(1) challenge
in this case.
Constitution “endows the federal courts with
‘[t]he judicial Power of the United States.'”
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016)
(quoting Art. III, § 1). While “[t]he judicial
Power of the United States” is not fully defined, the
Constitution specifies “that this power extends only to
‘Cases' and ‘Controversies[.]'”
Id. (quoting Art. III, § 2). No principle is
more fundamental to the judiciary's proper role in our
system of government than the constitutional limitation of
federal court jurisdiction to actual cases or controversies.
Id.; Raines v. Byrd, 521 U.S. 811,
818 (1997); Simon v. Eastern Kentucky Welfare Rights
Org., 426 U.S. 26, 37 (1976). “Standing to sue is
a doctrine rooted in the traditional understanding of a case
or controversy.” Spokeo, Inc., 136 S.Ct. at
1547. “[S]tanding ‘is an essential and unchanging
part of the case-or-controversy requirement of Article
III.'” Collins v. Daniels, 916 F.3d 1302,
1312 (10th Cir. 2019) (alteration in original) (quoting
S. Utah Wilderness All. v. Palma, 707 F.3d 1143,
1153 (10th Cir. 2013)); Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992) (same).
To satisfy Article III's standing requirements, a
plaintiff must show: “(1) [he] has suffered an
‘injury in fact' that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as