McGonigle v. Pure Green Franchise Corporation

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 25-61164-CIV-SINGHAL
ANDREW JAMES MCGONIGLE,
on behalf of himself and others
similarly situated,
Plaintiff,
vs.
PURE GREEN FRANCHISE CORPORATION,
Defendant.
_____________________________________/
ORDER
In the case before the Court, Plaintiff Andrew James McGonigle has sued
Defendant Pure Green Franchise Corporation (“Pure Green”) under the Telephone
Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”). Plaintiff alleges that
Defendant Pure Green violated § 227 of the TCPA and 47 C.F.R. § 64.1200(c)—a
regulation issued under § 227(c)—by sending, or authorizing the sending, of automated
text messages to McGonigle. Defendant moved to dismiss the complaint (DE [20]), and
now Defendant has filed a Motion to Stay and/or Bifurcate Discovery (the “Motion”)
(DE [27]). Defendant argues that its pending Motion to Dismiss Plaintiffs’ Complaint (the
“Motion to Dismiss”) (DE [20]) is dispositive and likely to succeed and, therefore, requests
a temporary stay of discovery pending resolution of the motion. In the alternative,
Defendant 	asks 	this 	Court 	to 	bifurcate 	discovery 	between 	named-plaintiff-specific
discovery and class discovery. Defendant moves to dismiss under Federal Rule of Civil
Procedure 12(b)(6) arguing first, that the TCPA does not grant a private right of action to
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recipients of text messages, and second, that Plaintiff has not properly pled that
Defendant is liable under the TCPA. (Motion to Dismiss (DE 20]), pp. 1-3). The Court has
reviewed the pending Motion to Dismiss and agrees with Defendant’s assessment that
the motion, if granted, would resolve the entire case.
The Eleventh Circuit has expressed concern over the burdens and costs of
conducting 	discovery 	before 	potentially 	dispositive 	motions 	are 	resolved. 	“Facial
challenges to the legal sufficiency of a claim or defense, such as a motion to dismiss
based on failure to state a claim for relief, should . . . be resolved before discovery begins.”
Isaiah v. JPMorgan Chase Bank, 960 F.3d 1296, 1308 (11th Cir. 2020) (quoting
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997)).
At this stage, the Court will not delve too deep into the merits of Defendant’s Motion
to Dismiss. See, e.g., Cabrera v. Progressive Behavioral Sci., Inc., 331 F.R.D. 185, 186
(S.D. Fla. 2019) 	(“While the Court must take a ‘preliminary peek’ at the motion and the
Complaint to see whether the Plaintiff's claims are meritless, the Court is not required to
move the Defendants' motion to dismiss to the front of the line, ahead of other cases with
pending motions, and fully adjudicate it on the spot. Such a requirement would be unfair
to other parties, as well as to the Court.” (internal citation omitted)). 	But, after a
preliminary peek at Defendant’s Motion to Dismiss, the Court believes that a stay of
discovery is appropriate in this case.
Defendant’s first argument in support of dismissal is that the private right of action
in § 227(c)(5) of the TCPA only applies when someone has received “more than one
telephone call,” not a text message. 2019 amendments to the TCPA expanding certain
provisions to include text messages as well as calls complicates the interpretation of §
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227(c)(5). Even though § 227(c) was not directly affected by the amendments, it is not
clear, in this preliminary peak, if the amendments changed the definition of “telephone
call” to include text message throughout the TCPA.
What is crystal clear to this Court however, is that the Court will ultimately resolve
this question by applying the canons of construction, analyzing precedent, and looking to
other 	persuasive 	court 	opinions, 	not 	by 	deferring 	to 	the 	Federal 	Communication
Commission’s interpretation. Plaintiff asks this Court to defer under the oft-misquoted
passage of Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 394-95 (2024):
For example, some statutes “expressly delegate[ ]” to an agency the
authority to give meaning to a particular statutory term. Others empower an
agency to prescribe rules to “fill up the details” of a statutory scheme, or to
regulate subject to the limits imposed by a term or phrase that ‘leaves
agencies with flexibility’ such as “appropriate” or “reasonable.”
(internal citations omitted). Plaintiff reasons that Congress’s express delegation to
the Commission in § 227(c)(1)(E) to “develop proposed regulations to implement the
methods and procedures that the Commission determines are most effective and efficient
to accomplish the purposes of this section” gave the Commission authority to “fill up the
details” and determine that “telephone call” includes text messages. That would not be
“filling up the details.” Determining whether “telephone call” in § 227(c)(5) includes text
messages would likely more than double the number of private causes of action
authorized by the TCPA. Doubling the scope of the provision is not “filling up the details.”
In actuality, § 227(c)(1)(E) may run afoul of the nondelegation doctrine, since there are
no delimitations on the discretion it grants the Commission. But we do not need to
determine 	that 	now. 	Instead, 	we 	merely 	reject 	Plaintiff’s 	request 	that 	we 	use 	§
227(c)(1)(E) to resurrect Chevron out of the grave. § 227(c)(1)(E) does not require this
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Court to defer to the Commission’s interpretation of § 227(c)(5). And we remind Plaintiff
that “agencies have no special competence in resolving statutory ambiguities. Courts do.”
Loper Bright, 603 U.S. at 373.
Because we will ultimately resolve the issue of whether § 227(c) includes a cause
of action for text messages by exercising our “special competence in resolving statutory
ambiguities,” this is a question of law that does not require discovery.
Defendant’s other argument is that Plaintiff did not properly plead a theory of
liability under the TCPA. (DE [20] pp. 9-19). Similarly to the first issue, whether Plaintiff
sufficiently plead direct or vicarious liability is a question of law. Discovery is unnecessary.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion (DE [27]) is GRANTED.
Discovery shall be stayed pending resolution of Defendant’s Motion to Dismiss (DE [20]).
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 15th day of
January 2026.
Copies furnished counsel via CM/ECF
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