UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KEVIN RIEKER,

Plaintiff,

v. Case No. 3:20cv5901-TKW-HTC

NATIONAL CAR CURE, LLC, et al.,

Defendants.

_____________________________________/

ORDER DENYING MOTION TO DISMISS

This case is before the Court based on Defendants’ motion to dismiss (Doc.

6) and Plaintiff’s response in opposition (Doc. 8). Upon due consideration of these 

filings and the complaint, the Court finds that the motion to dismiss is due to be 

denied.

Plaintiff alleges in the complaint that Defendants violated the Telephone 

Consumer Protection Act (TCPA), 47 U.S.C. §227, by making unsolicited 

telemarketing calls to his cellular phone using an automatic telephone dialing system 

(commonly referred to as “robocalls”) between October 2019 and February 2020 

notwithstanding the fact that his cellular phone number had been on the national Do 

Not Call Registry since July 2009. Defendants argue that the Court lacks subject 

matter jurisdiction or that the complaint should be dismissed for failure to state a 

claim upon which relief may be granted because the statute on which the complaint

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is based was held unconstitutional by the Supreme Court in Barr v. American 

Association of Political Consultants, 140 S. Ct. 2335 (2020) (hereafter AAPC).

1

 

Plaintiff responds that AAPC only invalidated one provision of the TCPA and it left 

the remainder of the Act intact, including the provisions allegedly violated by 

Defendants in this case.

Neither the Eleventh Circuit, nor any other circuit court has addressed the 

argument raised in the motion to dismiss. The argument has been addressed by a 

number of district courts around the country over the past several months with 

conflicting results. Cases rejecting the argument include Trujillo v. Free Energy 

Sav. Co., LLC, 2020 U.S. Dist. LEXIS 239730 (C.D. Cal. Dec. 21, 2020), Shen v. 

Tricolor California Auto Group, LLC, 2020 WL 7705888 (C.D. Cal. Dec. 17, 2020), 

Abramson v. Federal Ins. Co. 2020 WL 7318953 (M.D. Fla. Dec. 11, 2020), and 

Buchanan v. Sullivan, 2020 WL 6381563 (D. Neb. Oct. 30, 2020), and cases 

agreeing with the argument include Hussain v. Sullivan Buick-Cadillac-GMC Truck, 

Inc., 2020 WL 7346536 (M.D. Fla. Dec. 11, 2020), Lindenbaum v. Realgy, LLC, 

2020 WL 6361915 (N.D. Ohio Oct. 29, 2020), and Creasy v. Charter Commc’ns, 

Inc., 2020 WL 5761117 (E.D. La. Sept. 28, 2020).

1 More specifically, Defendants contend that the robocall restriction in the TCPA was 

unconstitutional (and, thus, unenforceable) in its entirety from 2015, when the TCPA was amended 

to include the government-debt exception that was ultimately severed from the statute in AAPC, 

until July 6, 2020, the date of the AAPC decision.

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The Court finds the Trujillo decision persuasive, and for sake of brevity, the 

Court simply adopts the reasoning in that decision as well as its conclusion that “the 

robocall statute remains enforceable, at least against non-government-debt 

collectors, as to calls made between 2015 and [July] 2020.” 2020 U.S. Dist. LEXIS 

239730, at *12. The Court notes that this conclusion is consistent with the plurality 

opinion in AAPC in which Justice Kavanaugh clearly stated (albeit in dicta) that “our 

decision today does not negate the liability of parties who made robocalls covered 

by the robocall restriction.” AAPC, 140 S. Ct. at 2355 n.12. It is also consistent 

with the fact that seven Justices in AAPC “conclude[d] that the entire 1991 robocall 

restriction should not be invalidated.” Id. at 1243 (emphasis added).

Accordingly, it is ORDERED that:

1. Defendants’ motion to dismiss (Doc. 6) is DENIED.

2. Defendants shall have 14 days from the date of this Order to answer the

complaint. See Fed. R. Civ. P. 12(a)(4)(A). 

DONE and ORDERED this 5th day of January, 2021.

T. Kent Wetherell, II

T. KENT WETHERELL, II

UNITED STATES DISTRICT JUDGE

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