Florida AG Moves to Dismiss Smartbiz Robocalling Counterclaim on Multiple Grounds

The office of Florida Attorney General Ashley Moody (R) moved to dismiss or alternatively to strike defendant Smartbiz Telecom’s Sept. 7 robocalling counterclaim against the state on multiple grounds, including that it's "redundant" to Smartbiz's previous arguments and adds "nothing new to the case," said its motion Thursday (docket 1:22-cv-23945) in U.S. District Court for Southern Florida in Miami. Smartbiz filed its counterclaim after U.S. District Judge Jose Martinez denied its Jan. 20 motion to dismiss Moody’s complaint, saying the Florida AG’s office clearly has Article III standing to bring its robocalling suit on behalf of its citizens (see 2308240041).

Smartbiz based its counterclaim on allegations the Florida AG violated its due process rights by seeking to deprive it of fair notice of what was required of it. The AG is improperly seeking to hold Smartbiz liable for failing to comply with FCC regulations that weren’t passed yet, and in some instances haven’t been adopted, said its counterclaim.

Smartbiz alleges it reasonably relied on the FCC’s guidance “as to what conduct was illegal or legal for its operation as an intermediate voice service provider,” said its counterclaim. The Florida AG “seeks to view 2020 conduct through a brand new 2023 lens,” it said. This is “unreasonable” and “improper,” and deprives Smartbiz “of fair notice that its conduct could have resulted in liability or penalties,” it said.

But the Florida AG sees Smartbiz’s counterclaim as merely reasserting the argument that compliance with FCC regulations “excuses it from compliance with the statutes” that the AG sued under, said its motion. Smartbiz’s counterclaim “adds nothing new to the case,” it said. The court should “exercise its discretion” to dismiss the counterclaim or strike it under Federal Rules of Civil Procedure 12(f) “because it is redundant,” it said.

Smartbiz’s counterclaim also is “an impermissible request for an advisory opinion” on whether Smartbiz complied with the FCC’s robocalling regulations, said the AG’s motion to dismiss. Even if the court were to declare Smartbiz fully complied with the regulations cited in the counterclaim, which the AG disputes, this presumed compliance wouldn’t enable the court “to redress an injury” that Smartbiz has suffered, it said. Smartbiz therefore lacks standing, and the counterclaim should be dismissed under Fed. R. Civ. P. 12(b)(1), it said.

Smartbiz also fails to identify why compliance with certain FCC regulations “excuses non-compliance” with federal and Florida law, “and on that basis fails to state a plausible claim for relief,” it said. The counterclaim accordingly should also be dismissed under Fed. R. Civ. P. 12(b)(6), it said.