UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NA’EEM BETZ,

Plaintiff, Civil Action No. 22-1578 (JEB) v. HOWARD UNIVERSITY HOSPITAL,

Defendant.

MEMORANDUM OPINION

In the latest of his innumerable pro se Telephone Consumer Protection Act lawsuits,

Plaintiff Na’eem Betz alleges that Defendant Howard University Hospital violated the TCPA by

calling him three or four times regarding medical care. In now seeking summary judgment,

Howard rejoins that Plaintiff’s suit fails for a slew of reasons; among them, Betz’s own exhibits

show that the calls were not solicitations made by an automated dialing system, but instead were

outreach from Hospital staff to help a patient navigate the insurance process. More broadly,

Howard contends, Betz is a serial litigant who has made a cottage industry of bringing meritless

TCPA claims in this district and should be enjoined from future litigation. Agreeing, the Court

will grant Howard’s Motion for Summary Judgment, deny Betz’s Motion for Leave to File an

Amended Complaint, and enjoin Plaintiff from suing Howard regarding alleged TCPA violations

without leave of this Court.

I. Background

A. Statement of Material Facts

As the Court considers materials outside the Complaint, it will treat the Motion as one for

summary judgment. Before diving into those materials, however, the Court must decide which

1 facts are disputed and which are not. Ordinarily, at summary judgment, “[t]he evidence of the

non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”

Anderson v. Liberty Lobby, Inc.,

(1986); see also Mastro v. PEPCO,

(D.C. Cir. 2006); Aka v. Wash. Hosp. Ctr.,

(D.C. Cir. 1998) (en

banc). The nonmoving party’s opposition, however, must consist of more than mere

unsupported allegations or denials and must be supported by affidavits, declarations, or other

competent evidence, setting forth specific facts showing that there is a genuine issue for trial.

See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett,

(1986).

In light of that requirement, and pursuant to Local Civil Rule 7(h) and Federal Rule

56(c), the Court, in resolving summary-judgment motions, may “assume that facts identified by

the moving party in its statement of material facts are admitted, unless such a fact is controverted

in the statement of genuine issues filed in opposition to the motion.” LCvR 7(h)(1).

Despite Local Rule 7’s instruction, however, Betz filed no “statement of genuine issues”

in opposition to Howard’s Motion for Summary Judgment. Instead, he offered only blanket

assertions that Defendant has “created a false or inaccurate narrative and timeline of events.”

ECF No. 19 (Pl. Reply) at 1. The Court will thus generally credit the facts in Howard’s

Statement of Material Facts. See ECF No. 6-12 (Howard SUMF); Joe Hand Promotions, Inc. v.

Molly Malone’s LLC, No. 19-3479,

, at *1 (D.D.C. Oct. 1, 2021).

B. Statutory Framework

The Telephone Consumer Protection Act of 1991, known as the TCPA, prohibits

companies from making telephone solicitations to numbers registered on the national do-not-call

registry. The relevant section of the Act’s implementing regulations,

(c)(2),

provides:

2 (c) No person or entity shall initiate any telephone solicitation to: . . . (2) A residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government . . . .

The Act defines a “telephone solicitation” as “the initiation of a telephone call or message for the

purpose of encouraging the purchase or rental of, or investment in, property, goods, or services,

which is transmitted to any person . . . .”

(a)(4);

(f)(15).

The TCPA also generally prohibits sending robocalls to cellular and home phones. See

Barr v. Am. Ass’n of Pol. Consultants, Inc.,

(2020). As relevant here, the

Act makes it unlawful for any person:

to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . (iii) to any telephone number assigned to a . . . cellular telephone service . . . .

(b)(1)(A)(iii). The Act in turn defines the term “automatic telephone dialing

system” as “equipment which has the capacity . . . to store or produce telephone numbers to be

called, using a random or sequential number generator; and . . . to dial such numbers.”

§ 227(a)(1); see also Facebook, Inc. v. Duguid,

(2021).

C. Factual Background

Plaintiff Na’eem Betz is no stranger to the TCPA. He has filed 20 lawsuits in this district

over the past decade, most of which raise claims under the Act. See SUMF, ¶ 10; ECF No. 6-2

(List of Cases). Nor is this his first rodeo with Howard University Hospital. Plaintiff has twice

before tried to bring TCPA claims against Howard or its vendor-partners; after the second go-

round, he signed a settlement agreement explicitly allowing that calls from Howard at the rate of

3 no more than two per week “are not a violation of the TCPA or any other similar statute.”

SUMF, ¶ 13.

The present skirmish began when the Hospital treated a pseudonymous patient, known as

Patient Doe, in May 2021 and May 2022. Id., ¶ 3. Patient Doe provided a phone number ending

in 8063 as his contact information. Id., ¶ 4. That 8063 number just so happens to be Plaintiff’s

self-identified cell-phone number. Id., ¶ 5; see ECF No. 1 (Compl.), ¶ 15.

Betz alleges that Howard then called that number three times in 2021 and 2022 — on

June 2, 2021, May 13, 2022, and May 24, 2022. See SUMF, ¶ 7; Compl., ¶ 15. (His proposed

Amended Complaint alleges that Howard also called him a fourth time. See ECF No. 12-2

(Proposed FAC), ¶ 15.) As exhibits to his original Complaint, Plaintiff attached what appear to

be transcripts of voicemails a Howard staff member left during the second and third calls. See

ECF No. 1-2 (Exhibits) at 19 (First Voicemail); Exhibits at 24 (Second Voicemail). Those

voicemails show a “Ms. Johnson” calling to see whether the patient has health insurance, and, if

not, to see whether she could help that patient with Medicare. Id. Plaintiff identifies nothing

about the calls that suggests that any came from an automatic dialing machine.

Betz filed his initial Complaint on May 31, 2022. In it, he contends that Howard’s three

calls violated the TCPA. See Compl., ¶¶ 36–42. After filing his Complaint, Betz repeatedly

tried to badger Howard into settling: he emailed Defendant more than 40 times between May and

August 2022 seeking money, and at least ten more times later that year. See SUMF, ¶ 19; ECF

No. 15 (Def. Opp.) at 15. Howard, for its part, represents that it was clear from the outset that it

would not engage in settlement discussions with Betz. See ECF No. 6-6 (Declaration of Zachary

I. Shapiro), ¶¶ 11–14.

4 Howard then moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) or, in the

alternative, for summary judgment under Rule 56. See ECF No. 6 (MTD/MSJ). Evidently at its

wits’ end, Howard also requested a prefiling injunction against Betz for any future TCPA-related

claims. Id. at 16. In response, Betz moved for leave to file an Amended Complaint. See ECF

No. 12 (Motion for Leave). Howard opposed that Motion, arguing that amendment would be

futile.

II. Legal Standard

As the Court considers Defendant’s Motion as one for summary judgment, it sets forth

only that standard. Summary judgment must be granted if “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); see also Liberty Lobby, 477 U.S. at 247–48; Holcomb v. Powell,

(D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. See Liberty Lobby,

; Holcomb,

. A dispute is “‘genuine’ if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Liberty Lobby,

; see also Scott v. Harris,

(2007); Holcomb,

. “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion” by “citing to particular parts of materials in the

record” or “showing that the 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)(B).

Pursuant to Federal Rule of Civil Procedure 15(a)(2), this Court “should freely give leave

[to amend a complaint] when justice so requires.” It is clear, however, that amendment should

not be permitted if it would be futile. See Foman v. Davis,

(1962) (noting

5 “futility of amendment” as permissible reason to deny Rule 15(a) motion). In other words, if the

new or amended causes of action would still be deficient notwithstanding the proposed

amendment, courts need not grant leave. In re Interbank Funding Corp. Securities Litigation,

(D.C. Cir. 2010) (“[A] district court may properly deny a motion to amend if

the amended pleading would not survive a motion to dismiss.”); James Madison Ltd. v. Ludwig,

(D.C. Cir. 1996) (“Courts may deny a motion to amend a complaint as futile

. . . if the proposed claim would not survive a motion to dismiss.”).

III. Analysis

The Court’s analysis proceeds in three parts; it separately analyzes Howard’s Motion for

Summary Judgment, Betz’s Motion to Amend, and Howard’s request for a prefiling injunction.

A. Motion for Summary Judgment

Summary judgment for the Hospital is warranted because the undisputed facts establish

that Defendant’s calls were not solicitations and did not come from an auto dialer, thus dooming

Betz’s TCPA count. As a result, the Court need not even address whether Betz has waived his

right to sue the Hospital under his prior settlement agreement.

The TCPA defines a solicitation as a “telephone call or message for the purpose of

encouraging the purchase or rental of, or investment in, property, goods, or services, which is

transmitted to any person.”

(a)(4). Here, Plaintiff’s own evidence makes clear

that the challenged phone calls were not solicitations. Betz submitted apparent transcriptions of

the voice messages he received, which show a Howard employee inquiring about whether the

patient has health insurance and offering to help him navigate the Medicare process if he does

not. See First Voicemail; Second Voicemail. Nothing in those transcriptions — nor anything

else in the record — indicates that the calls were made for purposes of solicitation. Betz

6 nonetheless tries to frame the calls as solicitations because, in his view, they “solicited to inquire

about medical insurance from the Defendant which were financial related or relating to financial

content/information.” Pl. Reply at 8. Notwithstanding that circular description of their content,

the voicemails themselves make clear that their purpose was not to sell Plaintiff anything.

Indeed, Howard represents (and Plaintiff does not challenge) that it does not sell health

insurance. See MTD/MSJ at 10. Betz, furthermore, has not offered any facts to show that the

Hospital was in any way seeking to sell some other service.

The TCPA also prohibits phone calls that “us[e] an automatic telephone dialing system or

any artificial or prerecorded voice.”

(b)(1)(A). But Plaintiff does not even

allege that Howard used an automatic dialing system — indeed, as before, his own evidence

suggests the contrary. Betz’s voicemail transcriptions show that an individual Howard employee

called the telephone number to inquire about a patient’s insurance coverage.

Plaintiff’s central rejoinder is only that he has Article III standing to seek relief against

Howard and cites cases to that effect. See Pl. Reply at 5. But Defendant does not contest his

standing, and the fact that he has standing does not help him on the merits. Summary judgment

for Howard will accordingly be entered.

B. Motion to Amend

Hoping to stave off defeat, Plaintiff moves to amend his Complaint. His proposed

version would identify a fourth phone call he alleges that the Hospital made, and it would

supplement his sole count with two additional ones: a freestanding count seeking injunctive

relief and a count for invasion of privacy under District of Columbia law. See Proposed FAC,

¶¶ 37–52.

7 As to Betz’s first count, the few additional facts he seeks to add do not alter the Court’s

summary-judgment analysis. Plaintiff mentions only a fourth phone call that he allegedly

received, along with several irrelevant details; he does not add any factual allegations or exhibits

that would suggest that the calls were solicitations or originated from an automated dialer. Such

amendment would leave the Court’s prior analysis unaltered.

Second, Plaintiff’s stand-alone claim for injunctive relief gains no traction. The

Declaratory Judgment Act, on which he relies for this count, does not create an independent

cause of action but instead only authorizes a remedy. Numerous courts have so held. See, e.g.,

Malek v. Flagstar Bank,

(D.D.C. 2014); Intelsat USA Sales Corp. v. Juch–

Tech, Inc.,

(D.D.C. 2013); see also C&E Servs., Inc. of Wash. v. D.C.

Water & Sewer Auth.,

(D.C. Cir. 2002). A freestanding count under that

statute thus cannot succeed.

Third, with the other counts gone, all that would remain is a privacy dispute under

District of Columbia law between two non-diverse parties. The Court thus would lack

independent subject-matter jurisdiction over that remaining state-law claim, and it would decline

to exercise supplemental jurisdiction.

Federal district courts are given supplemental jurisdiction over state claims that “form

part of the same case or controversy” as federal claims over which they have original

jurisdiction. See

(a). By the same token, they “may decline to exercise

supplemental jurisdiction over [such] claim[s] . . . if . . . the district court has dismissed all claims

over which it has original jurisdiction.”

§ 1367(c)(3). The decision of whether to exercise

supplemental jurisdiction where a court has dismissed all federal claims is left to the court’s

discretion as “pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right.” United

8 Mine Workers of Am. v. Gibbs,

(1966), quoted in Shekoyan v. Sibley Int’l,

(D.C. Cir. 2005). When deciding whether to exercise supplemental

jurisdiction over state claims, federal courts should consider “judicial economy, convenience,

fairness, and comity.” Shekoyan,

.

Here, the factors weigh against retention of the case. No federal claims against Howard

remain; this case, furthermore, has not progressed in federal court past Howard’s initial

dispositive Motion, and the Court has developed no particular familiarity with the issues

presented. Cf. Schuler v. PricewaterhouseCoopers, LLP,

(D.C. Cir. 2010)

(finding that district court appropriately retained pendent jurisdiction over state claims where it

had “invested time and resources” in the case). The Court can thus conceive of no undue

inconvenience or unfairness to the litigants that would result from such a decision. Finally, Betz

will not be prejudiced because

(d) provides for a tolling of the statute of

limitations during the period the case was here and for at least 30 days thereafter. See Shekoyan,

(affirming district court finding that because of this tolling, dismissal of pendent

state claims “will not adversely impact plaintiff’s ability to pursue his District of Columbia

claims in the local court system”) (citation omitted). He may thus proceed in Superior Court if

he so desires.

C. Prefiling Injunction

Finally, the Court must decide whether to impose a pre-filing injunction. Such

injunctions are an extreme sanction and are a limited exception to the “general rule of free access

to the courts.” In re Powell,

(D.C. Cir. 1988) (quoting Pavilonis v. King,

(1st Cir. 1980)). Pre-filing injunctions should be used sparingly, especially

against pro se plaintiffs.

(citing Pavilonis,

). This Court nonetheless has the

9 authority and duty to issue injunctions when necessary “to protect the integrity of the courts and

the orderly and expeditious administration of justice.” Urban v. United Nations,

(D.C. Cir. 1985).

When considering an injunction, a court must first ensure that the plaintiff has “notice

and an opportunity to be heard.” Unitronics (1989) (R’’G) Ltd. v. Gharb,

(D.D.C. 2015) (quoting In re Powell,

). Once that has been accomplished,

courts then look at the volume of a plaintiff’s filings and the extent to which they are harassing

or frivolous. See Caldwell v. Obama,

, 50–52 (D.D.C. 2013). The Court will

analyze these issues in turn.

Notice

If the target of a pre-filing injunction receives a motion to dismiss or a show-cause order,

that typically constitutes sufficient notice. See, e.g., Smith v. Scalia,

(D.D.C. 2014). Courts have likewise found that a plaintiff’s filing of an opposition

memorandum evidences notice. See Rodriguez v. Shulman,

(D.D.C. 2012)

(holding plaintiffs had opportunity to be heard regarding injunction when they submitted

opposition brief).

Here, Betz has received notice and an opportunity to be heard. Howard sought a prefiling

injunction in its Motion for Summary Judgment and offered several pages of explanation for why

one was warranted. See MTD/MSJ at 14–16. Betz has filed a response to that Motion, see Pl.

Reply, as well as his own Motion for Leave to File an Amended Complaint. That suffices for

notice.

10 Volume of Filings

The Court next considers the “number and content” of the litigant’s previous filings. See

In re Powell,

. The quantity of meritless suits is not necessarily dispositive in

granting an injunction. See In re Yelverton,

(D.D.C. 2014) (“The volume of

filings alone would not be determinative if his arguments and assertions were generally

colorable.”); Caldwell,

(“[T]he requisite finding of harassment or

vexatiousness does not rest solely on some arbitrary threshold number of lawsuits filed but rather

must also take account of the repetitiveness and nature of the claims.”). It nonetheless remains

relevant as a benchmark. In re Powell,

.

Courts in this district have granted injunctions in cases involving the filing of 11, 15, and

16 actions. See Urban, 768 F.2d at 1498–99 (16); Smith,

(11); Kaufman v.

IRS,

(D.D.C. 2011) (15). Meritless suits, however, need not reach double

digits before an injunction will be granted. See, e.g., Davis v. United States,

(D.D.C. 2008) (granting injunction after filing of four “essentially identical” suits); Caldwell,

(granting injunction after filing of five “meritless” suits); Powell v. Davis,

No. 18-297,

, at *4–5 (D.D.C. Oct. 30, 2018) (allowing injunction after nine

frivolous and harassing suits).

Betz has filed 20 lawsuits in this district, most under the TCPA. See SUMF, ¶ 10. He

has filed three against Howard or its partners. His total volume of suits, and his present pattern

of suing Howard specifically, is thus sufficiently atypical and disruptive. Such volume would

not alone be determinative were Betz’s claims colorable, but given their frivolousness (as

discussed shortly), their numerosity is great enough to make an injunction appropriate.

11 Harassment

To determine whether a plaintiff’s actions are harassing, “the court should consider the

effect of the filings on the parties and the court.” Mikkilineni v. Penn Nat’l Mut. Cas. Ins. Co.,

(D.D.C. 2003). Likewise, “forcing the defendants to spend resources

litigating previously-resolved claims” constitutes harassment.

. Courts should also

look for evidence that defendants “feel harassed,” which often appears in motions to prohibit the

plaintiff from additional filings.

In such analysis, courts also consider whether the filings aim to “harass a particular

adversary.” In re Powell,

. A plaintiff’s decision to cycle between different

defendants, however, does not represent a sufficient rebuttal to arguments that his claims are

harassing. See Smith,

(affirming pre-filing injunction when plaintiff

targeted various judges); Powell,

, at *4 (“[Naming] different defendants”

does not make plaintiff’s suits “less frivolous” or “less harassing” because “[h]is legal theory

hasn’t changed[,] . . . and he is not entitled to as many bites at the apple as there are different

defendants he can somehow include in the case caption.”).

Betz’s FTCA lawsuits qualify as harassing, and certainly so with respect to Howard.

After his second round of TCPA litigation with the Hospital, he signed an agreement explicitly

consenting to two phone calls per week from Howard. Even still, he continues to file TCPA

claims against the Hospital and to hound it for settlement funds. Particularly when viewed

alongside Plaintiff’s repeated emails to Howard and his other TCPA suits in this district, the

Court finds these suits to be harassing in nature.

12 Frivolousness

To establish the frivolousness of a plaintiff’s suit, a court must consider whether his

actions advance “the same basic theory” that is conclusively meritless. See Powell,

, at *5 (granting injunction when plaintiff was given “repeated admonitions that his

claims lack legal merit”); Davis,

(issuing injunction after repetitive filing

of “essentially identical” claims). Courts look for a “clear pattern” of “strikingly similar

allegations” in which the plaintiff “propounds substantially the same legal arguments.” Smith,

. These claims need not be identical, so long as the plaintiff’s “legal theories

and the gravamen of the complaints remain the same.”

.

Betz’s claims here are frivolous. His filings “propound[] substantially the same legal

arguments” that have not succeeded elsewhere and that lack merit. See Smith,

. Perhaps appreciating these weaknesses, Plaintiff has turned his attention to badgering

Defendant for settlement funds. These facts all suggest the frivolousness of his action.

Scope of Injunction

Finally, the Court has discretion to decide the injunction’s scope. Betz could, for

example, be enjoined from filing any suit in courts in this district or in any other federal court.

Urban,

(barring plaintiff from filing in this court or “any other federal court”);

Mikkilineni,

(barring plaintiff from filing in this court without leave). As

far as substantive scope, Plaintiff could be enjoined from filing without leave of the Court

against anyone related to this dispute or any defendant at all. Powell,

, at *5

(barring plaintiff from filing anything related to a specific dispute); Urban,

(barring plaintiff from any filing).

13 In this case, the Court believes that the most sensible path is to craft its injunction

narrowly: it will bar Plaintiff from filing suit in this district against Howard under the TCPA.

Such an injunction will not unduly encumber Betz’s right to “free access to the courts” in

relation to other legal claims and other defendants. In re Powell,

. Instead, it will

limit Betz only from harassing Howard with further TCPA lawsuits.

IV. Conclusion

For the foregoing reasons, the Court will grant Howard’s Motion for Summary Judgment,

deny Betz’s Motion for Leave to File an Amended Complaint, and enjoin Plaintiff from suing

Howard regarding alleged TCPA violations without leave of this Court. A separate Order so

stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: January 9, 2023

14