Opinion
Case No.: CV 15-00076-AB (PLAx)
05-08-2015
Ned Flores v. Adir International, LLC
Attorneys Present for Plaintiffs: None Appearing Attorneys Present for Defendants: None Appearing
CIVIL MINUTES - GENERAL Present: The Honorable ANDRÉ BIROTTE JR. Carla Badirian
Deputy Clerk N/A
Court Reporter Attorneys Present for Plaintiffs:
None Appearing Attorneys Present for Defendants:
None Appearing
Proceedings: [In Chambers] Order GRANTING Defendant's Motion to Dismiss WITH LEAVE TO AMEND (Dkt. No. 16)
Pending before this Court is Defendant motion to dismiss Plaintiff's putative class action complaint pursuant to Federal Rule of Civil Procedure 12(b). (Dkt. No. 16.) The Court took the motion under submission on April 9, 2015. (Dkt. No. 24.) Plaintiff's claims arise exclusively under the Telephone Consumer Protection Act ("TCPA," 47 U.S.C. §227). Because Plaintiff does not allege any facts that would lead to the reasonable inference that Defendant utilized an "automatic telephone dialing system" ("ATDS") under the TCPA, Plaintiff fails to allege Defendant violated the terms of the TCPA. Accordingly, the court GRANTS the motion WITH LEAVE TO AMEND and DISMISSES Plaintiff's complaint WITHOUT PREJUDICE. (Dkt. No. 16.)
I. Background
As alleged in the operative complaint and taken as true for the purpose of the instant motion, Defendant is in the business of buying consumer debts and collecting on those debts. (Dkt. No. 1, ¶5.) Beginning on September 13, 2014, Defendant began sending Plaintiff text messages in Spanish for the purpose of collecting a debt Plaintiff allegedly owed, asking Plaintiff to contact Defendant and providing a reference number. (Id., at ¶8.) Several of the text messages came from SMS short code 919-26. (Id.) Plaintiff responded to one of the first text messages with the word "Stop," and Defendant replied with a message in Spanish informing Plaintiff that he would no longer receive messages. (Id., at ¶9.) However, the messages did not stop, and on September 21, 2015 Defendant again sent Plaintiff an identical text message listing the same reference number. (Id., at ¶10.) Plaintiff again responded "Stop" and again received the same confirmation text message. (Id., at ¶11.) After September 21, 2014, Defendant sent Plaintiff two additional text messages on (on September 22, 2014 and October 3, 2014, respectively), and Plaintiff replied "Stop" to each of those text messages, too. Plaintiff's cell phone carrier charges him a fee for incoming text messages. (Id., at ¶14.) In November 2014, Defendant began calling Plaintiff on his cellular telephone in an attempt to collect on an alleged debt Plaintiff owed. (Id., at ¶6.)
From those allegations, Plaintiff asserts individual and putative class action causes of action against Defendant for negligent and willful violations of the TCPA. (Dkt. No. 1, ¶¶26-33.) Defendant moves to dismiss both of Plaintiff's causes of action on the ground that Plaintiff fails to allege defendant utilized an ATDS as defined in the TCPA. (Dkt. No. 16.) Plaintiff opposes. (Dkt. No. 22.)
II. Legal Standard
Federal Rule of Civil Procedure 8(a)(2) ("Rule 8(a)") requires that a pleading present a "short and plain statement of the claim showing that the pleader is entitled to relief." Under Federal Rule Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), a defendant may move to dismiss a pleading for "failure to state a claim upon which relief can be granted." That is, a pleading that does not satisfy Rule 8(a) is subject to dismissal under Rule 12(b)(6). Dismissal is proper under Rule 12(b)(6) where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 969, 699 (9th Cir. 1988). Under Rule 12(b)(2) "a court may dismiss a claim that is grouped together with other claims in a single cause of action, without dismissing the entire cause of action." Perez v. Banana Republic, LLC, 22 Wage & Hour Cas. 2d (BNA) 1700, 2014 WL 2918421 at *3 (E.D. Cal. June 26, 2014) (No. 14-cv-01132-JCS); see also Hill v. Opus Corp., 841 F.Supp.2d 1070, 1082 (C.D. Cal. 2011).
"[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations and alterations omitted). Although this does not require "detailed factual allegations," it "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A sufficiently-pled claim must be "plausible on its face." Id. "A claim is facially plausible when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. For purposes of a motion to dismiss, allegations of fact are taken as true and are construed in the light most favorable to the nonmoving party. See Newdow v. Lefevre, 598 F.3d 638, 642 (9th Cir. 2010).
The first step in determining whether a claim is sufficiently pled is to identify the elements of that claim. See Iqbal, 556 U.S. at 675. The court should then distinguish between the pleading's allegations of fact and its legal conclusions: a court "must take all of the factual allegations in the complaint as true," but should not give legal conclusions this assumption of veracity. Id. at 678. The court must then decide whether the pleading's factual allegations, when assumed true, "plausibly give rise to an entitlement to relief." Id. at 679. The court may not consider material beyond the pleadings other than judicially noticeable documents, documents attached to the complaint or to which the complaint refers extensively, or documents that form the basis of the claims. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
III. Discussion
Defendant moves to dismiss both of Plaintiff's claims under the TCPA for failure to allege that Defendant contacted Plaintiff using an ATDS. "The three elements of a TCPA claim are: (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient's prior express consent." Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1043 (9th Cir. 2012). A text message to a cellular telephone constitutes a "call" under the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009) As used in the TCPA, "'automatic telephone dialing system' means equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C. §227(a)(1). Under the plain language of the statute, "a system need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do it." Satterfield v. Simon & Schuster, Inc., 569 F.3d at 951.
Plaintiff does not dispute that he must allege Defendant utilized an ATDS to state a claim for relief under the TCPA. It is true that Plaintiff offers the conclusory allegation that "Defendant used an [ATDS], as defined by 47 U.S.C. §227(a)(1) to place its debt-collection text messages to Plaintiff." (Dkt. No. 1, ¶12.) "Such a naked assertion need not be taken as true," however. Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165, 1171 (N.D. Cal. 2010) (standing alone, plaintiff's allegation that defendant "us[ed] equipment that, upon information and belief, had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator" insufficient to allege defendant used an ATDS). Plaintiff's a "formulaic recitation of the elements" of his TCPA claims "will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. at 555
In opposition, Plaintiff argues that he cannot be expected to know the technical details of Defendant's system at this early stage of the litigation and that he has alleged specific facts to support the plausible inference that Defendant used an ATDS. The Court agrees that "[p]laintiffs alleging the use of a particular type of equipment under the TCPA are generally required to rely on indirect allegations such as the content of the message, the context in which it was received, and the existence of similar messages, to raise an inference that an automated dialer was utilized. Prior to the initiation of discovery, courts cannot expect more." Robbins v. Coca-Cola-Co., No. 13-CV-132-IEG NLS, 2013 WL 2252646, at *3 (S.D. Cal. May 22, 2013) (quoting Gragg v. Orange Cab Co., Inc., 2013 WL 195466, at *2 n.3 (W.D. Wash. Jan.17, 2013).) Here, however, Plaintiff fails to allege any indirect or contextual facts to support the conclusion that Defendant utilized an ATDS. Without more, Plaintiff's conclusory allegation that Defendant used an ATDS is little more than speculation, and that cannot support a claim for relief under the TCPA. Huricks v. Shopkick, Inc., No. C-14-2464 MMC, 2014 WL 3725344, at *2 (N.D. Cal. July 24, 2014); accord Kazemi v. Payless Shoesource, Inc., 2010 WL 963225, at *2 (N.D. Cal. March 16, 2010) (same).
It is true that a number of courts have allowed TCPA claims to advance beyond the pleading stage where a plaintiff alleged the defendant sent a text message using an SMS short code, sent a text message containing "impersonal" language, or both. See, e.g., Robbins v. Coca-Cola-Co., No. 13-CV-132-IEG NLS, 2013 WL 2252646, at *3 (S.D. Cal. May 22, 2013) (allegations that defendants sent short-code text messages en masse nationwide supported reasonable inference that defendant used ATDS to survive pleading stage); In re Jiffy Lube Int'l, Inc. Text Span Litig., 847 F. Supp. 2d 1253, 1259-60 (allegations that defendant sent text message with boilerplate language using SMS short code sufficient to allege use of ATDS under the circumstances); and Kramer v. Autobytel, Inc., supra, 759 F. Supp. 2d at 1172 (N.D.Cal.2010) (impersonal nature of messages, number of messages, "short code" sending number, and lack of relationship with plaintiff all supported inference of ATDS use in TCPA claim).
As Defendants correctly note in reply, however, each of those cases involved promotional text messages sent to advertise a particular product. Robbins v. Coca-Cola-Co., 2013 WL 2252646, at *3 (noting that text messages at issue "promot[ed] Coke Zero and other Coke Products"); In re Jiffy Lube Int'l, Inc. Text Span Litig., 847 F. Supp. 2d at 1255 (noting plaintiffs "all claim[ed] to have received an unauthorized text message offering a discount on Jiffy Lube services"); Kramer v. Autobytel, Inc., 759 F. Supp. 2d at 1171 ("The messages were advertisements written in an impersonal manner. Kramer had no other reason to be in contact with Defendants"). In that context, the holdings in Robbins, Jiffy Lube, and Kramer make intuitive sense. As the district court in Kramer noted, the defendants in those cases "had no other reason to be in contact with [the] Defendants," and the promotional nature of the text messages suggested at least some level of random targeting. Kramer v. Autobytel, Inc., 759 F. Supp. 2d at 1171. Here, by contrast, Plaintiff's allegations suggest Defendant's text messages were anything but random or "impersonal." Plaintiff alleges that Defendant contacted him about a specific alleged debt that Defendant contended Plaintiff owed. Moreover, each of the text messages included the same reference number, presumably related to the specific alleged debt at issue. When Defendant's text messages did not prompt Plaintiff to pay the alleged debt, Plaintiff alleges Defendant called him, instead. That level of direct targeting suggests some sort of "human curation or intervention" rather than the "random or sequential number generator" required for an ATDS. Marks v. Crunch San Diego, LLC, ___ F. Supp. 3d ___, 2014 WL 5422976 (S.D. Cal. 2014).
For the same reason, Plaintiff's reliance on cases involving phone calls using an artificial or pre-recorded voice is unpersuasive. See Robinson v. Midland Funding, LLC, No. 10CV2261 MMA AJB, 2011 WL 1434919, at *3 (S.D. Cal. Apr. 13, 2011); Reyes v. Saxon Mortgage Servs., Inc., No. 09CV1366 DMS (WMC), 2009 WL 3738177, at *4 (S.D. Cal. Nov. 5, 2009). Although the use of a machine-generated or pre-recorded aural message may suggest a certain level of automation, Plaintiff's allegations suggest direct targeting that is inconsistent with the sort of random or sequential number generation required for an ATDS. Again, Plaintiff alleges that he received multiple text messages that provided the same reference number, suggesting a level of personalization even in the allegedly automated text messages. That sort of specificity belies Plaintiff's claims of randomness and does not, by itself, support a reasonable inference that Defendant used an ATDS.
Even this proposition is not universal, however. An automated phone message may just as equally be the result of an automated phone call to a phone number contained in a database as a randomly generated number, depending on the other circumstances of the case. An ATDS does not "include any list or database of numbers," however, even if the machine selects numbers from that pre-existing database randomly or sequentially. Marks v. Crunch San Diego, LLC, 2014 WL at *3. Rather, "'random or sequential number generator" refers to the genesis of the list of numbers" - i.e. whether the list of numbers is itself produced by a random or sequential automated process. Id. (emphasis added). --------
Of course, Plaintiff need not allege or prove that Defendant sent the text messages randomly or as part of an automated sequence - he need only allege Defendant's system had the capacity to do so. Satterfield v. Simon & Schuster, Inc., 569 F.3d at 951. Even so, Plaintiff alleges no facts to give rise to that inference. See McKenna v. WhisperText, No. 5:15-cv-00424-PSG, 2014 WL 4905629, at *3 (N.D. Cal. Sept. 29, 2014) (plaintiff failed to allege facts suggesting use of an ATDS where plaintiff only alleged "(1) his receipt of a message from a long-code number operated by [the defendant], and (2) the contents of the message"). It may be possible that Defendant used a device capable of using a random or sequential number generator when it sent Plaintiff more targeted text messages, but Plaintiff offers no contextual facts that would convert that possibility into a plausible scenario. Ashcroft v. Iqbal, 556 U.S. at 678. Plaintiff cannot allege facts suggesting that Defendant specifically targeted him and conclude, without more, that Defendant must have done so using a system capable of sending text messages at random. Though not mutually exclusive, neither are those two scenarios not mutually suggestive. Plaintiff fails to allege "factual content that allows the court to draw the reasonable inference that the defendant" used a machine capable of random or sequential number generation, and the Court cannot fill the gap with speculation. Id; accord Huricks v. Shopkick, Inc., No. C-14-2464 MMC, 2014 WL 3725344, at *2 (N.D. Cal. July 24, 2014) (dismissing TCPA claim where "plaintiffs' complaint [was] devoid of any facts that could support a reasonable inference that [defendant] used an ATDS to send the subject text messages"); Knutson v. ReplyA, Inc., No. 10-CV-1267 BEN WMC, 2011 WL 291076, at *2 (S.D. Cal. Jan. 27, 2011) (dismissing TCPA claim where "[t]here [was] nothing in the complaint that allow[ed] the court to infer the calls were randomly generated or impersonal"); see also Emanuel v. Los Angeles Lakers, Inc., No. CV 12-9936-GW SHX, 2013 WL 1719035, at *4 n.3 (C.D. Cal. Apr. 18, 2013) (observing in dicta that complaint likely failed to allege use of an ATDS where complaint "suggest[ed] that Defendant d[id] not use a system that ha[d] the capacity to generate, or to sequentially or randomly dial numbers" where "Plaintiff d[id] not allege that he received the [defendant's] text 'randomly' but rather" was expressly targeted).
IV. Conclusion
Plaintiff need not allege the technical ins-and-outs of Defendant's text messaging system to survive a motion to dismiss. At minimum, however, he must allege some indirect facts to suggest that Defendant's system is capable of acting as an ATDS. Knutson v. ReplyA, Inc., supra, 2011 WL 291076, at *2. Plaintiffs allegations - which suggest Defendant did not use such a system to send Plaintiff specific, targeted text messages - are insufficient to infer that Defendant utilized an ATDS when it sent Plaintiff the text messages at issue. Because use of an ATDS is an essential element of both of Plaintiff's claims, the Court GRANTS Defendant's motion to dismiss WITH LEAVE TO AMEND and DISMISSES Plaintiff's complaint WITHOUT PREJUDICE. Plaintiff shall file an amended complaint, if at all, no later than May 22, 2015. (Dkt. No. 16.)
IT IS SO ORDERED