Aram Terteryan v. Nissan Motor Acceptance Corporation

NOTICE OF MOTION AND MOTION to Dismiss Terteryan's First Amended Complaint and to Strike the First Amended Complaint

C.D. Cal.August 12, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 NOTICE OF MOTION AND MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE THE FIRST AMENDED COMPLAINT SCOTT J. HYMAN (State Bar No. 148709) sjh@severson.com GENEVIEVE R. WALSER-JOLLY (State Bar No. 262784) grw@severson.com SEVERSON & WERSON A Professional Corporation The Atrium 19100 Von Karman Avenue, Suite 700 Irvine, California 92612 Telephone: (949) 442-7110 Facsimile: (949) 442-7118 DUANE M. GECK (State Bar No. 114823) dmg@severson.com REBECCA S. SAELAO (State Bar No. 222731) rss@severson.com SEVERSON & WERSON A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, California 94111 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 Attorneys for Defendant NISSAN MOTOR ACCEPTANCE CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION ARAM TERTERYAN, individually and on behalf of all others similarly situated, Plaintiff, vs. NISSAN MOTOR ACCEPTANCE CORPORATION, Defendant. Case No. 2:16-cv-02029 GW (KSx) Hon. George H. Wu Ctrm. 10 - Spring St. CLASS ACTION NOTICE OF MOTION AND MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Date: January 19, 2017 Time: 8:30 a.m. Crtrm.: 10 Action Filed: March 24, 2016 FAC Filed: June 15, 2016 Trial Date: None Set Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 1 of 25 Page ID #:76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 i TABLE OF CONTENTS TABLE OF CONTENTS Page I. INTRODUCTION.............................................................................................1 II. BACKGROUND...............................................................................................3 A. Terteryan’s Allegations...........................................................................3 B. Plaintiffs’ Allegations .............................................................................3 C. Meet And Confer Efforts Prior To Bringing This Motion .....................4 III. THE FAC FAILS TO STATE A TCPA CLAIM UNDER RULE 12(b)(6)..............................................................................................................4 A. 12(b)(6) Pleading Standards ...................................................................4 1. Formulaic Recitations Will Not Do..............................................4 2. Terteryan Must Plead Plausible Facts, By Indirect Evidence, That The Calls He Received Were Placed By An ATDS ......................................................................................5 B. Terteryan Fails To Plead “Use” Of An ATDS, Randomness, Or That The Calls Were “Made” Without Human Intervention..................7 1. Terteryan Merely Restates The Law, Without Pleading Any Facts To Demonstrate That The Calls He Received Were Placed Using An ATDS Or An Artificial Or Prerecorded Voice ........................................................................8 2. Terteryan Alleges No Randomness ............................................11 3. Terteryan Does Not Allege An Absence Of Human Intervention.................................................................................12 IV. PLAINTIFFS’ UNSUPPORTED WILLFULNESS ALLEGATIONS SHOULD BE STRICKEN ..............................................................................14 V. CONCLUSION ...............................................................................................15 Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 2 of 25 Page ID #:77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 ii TABLE OF AUTHORITIES TABLE OF AUTHORITIES Page(s) Cases Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005) .................................................................................. 4 Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) ............................................................................................ 5 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1990) .................................................................................. 4 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................................... 5, 9 Curry v. Synchrony Bank, N.A., No. 15-322, 2015 WL 7015311 (S.D. Miss. Nov. 12, 2015) ...................5, 7, 9, 10 Daniels v. Commun. Lending, Inc., No. 13-488, 2014 WL 51275 (S.D. Cal. Jan. 6, 2014)...................................10, 12 Derby v. AOL, Inc., No. 15-00452, 2015 WL 5316403 (N.D. Cal. Sept. 11, 2015) ....................6, 7, 13 Duguid v. Facebook, Inc., No. 15-00985, 2016 WL 1169365 (N.D. Cal. Mar. 24, 2016)............................. 12 Estrella v. Ltd Fin. Servs., LP, No. 14-2624, 2015 WL 6742062 (M.D. Fla. Nov. 2, 2015) ....................10, 11, 13 F5 Networks, Inc. v. A10 Networks, Inc., No. 07-1927, 2008 WL 687114 (W.D. Wash. Mar. 10, 2008) ......................15, 16 Flores v. Adir Int’l, LLC, No. 15-00076, 2015 WL 4340020 (C.D. Cal. July 15, 2015) ......................passim Freyja v. Dun & Bradstreet, Inc., No. 14-7831, 2015 WL 6163590 (C.D. Cal. Oct. 14, 2015)..........................13, 14 Gaza v. LTD Fin. Servs., L.P., No. 14-1012, 2015 WL 5009741 (M.D. Fla. Aug. 24, 2015) .............................. 13 Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 3 of 25 Page ID #:78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 iii TABLE OF AUTHORITIES Hurtwitz v. Pinnacle Fin. Group, Inc., No. 14-10040, 2014 WL 2479999 (E.D. Mich. June 3, 2014).....................6, 8, 10 Knutson v. Reply!, Inc., No. 10-1267, 2011 WL 291076 (S.D. Cal. Jan. 27, 2011)................................... 12 Lofton v. Verizon Wireless (VAW) LLC, No. 13-5665, 2015 WL 1254681 (N.D. Cal. Mar. 18, 2015)................................. 6 Luna v. Shac, LLC, No. 14-00607, 2015 WL 4941781 (N.D. Cal. Aug. 19, 2015)............................ 13 McKenna v. WhisperText, No. 14-00424, 2015 WL 5264750 (N.D. Cal. Sept. 9, 2015) ......................... 6, 13 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530 (9th Cir. 1984) .................................................................................. 5 Taiwan Semiconductor Mfg. Co. v. Tela Innovations, Inc., No. 14-00362-BLF, 2014 WL 3705350 (N.D. Cal. July 24, 2014) ..................... 15 U.S. v. Wenner, 351 F.3d 969 (9th Cir. 2003) .............................................................................. 2, 8 Wallack v. Mercantile Adjustments Bureau, Inc., No. 14-10387, 2014 WL 1515852 (E.D. Mich. Apr. 18, 2014)........................... 10 Williams v. T-Mobile USA, Inc., No. 15-03384, 2015 WL 5962270 (N.D. Cal. Oct. 14, 2015)......................5, 9, 12 Statutes 47 U.S.C. § 227(b)(1)(A)......................................................................................... 1, 8 Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. ................................... 1 Other Authorities Fed R. Civ. P. 8(a) ....................................................................................................... 5 Rule 8...................................................................................................................1, 2, 5 Rule 11......................................................................................................................... 2 RULE 12(b)(6)....................................................................................................... 4, 16 Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 4 of 25 Page ID #:79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 iv TABLE OF AUTHORITIES Rule 12(f)............................................................................................................... 3, 15 Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 5 of 25 Page ID #:80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 v NOTICE OF MOTION AND MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE THE FIRST AMENDED COMPLAINT TO THIS HONORABLE COURT AND TO PLAINTIFFS: PLEASE TAKE NOTICE that on January 19, 2017, at 8:30 a.m. or as soon thereafter as counsel can be heard in Courtroom 10, of the above-entitled Court, located at 312 N. Spring St., Los Angeles, CA 90012, California, defendant Nissan Motor Acceptance Corporation (“NMAC”) will and hereby does move this Court for: 1) An order dismissing the First Amended Complaint, dated June 15, 2016 (Docket No. 17) (“FAC”), as to Plaintiff Aram Terteryan’s (“Terteryan”) pursuant to Federal Rules of Civil Procedure (“Rule”) 8 and 12(b)(6), and 2) For an order striking portions of the FAC, as to all three Plaintiffs - Terteryan, Tatyana Davtyan and Marine Davtyan (collectively “Davtyans”) - and pursuant to Rule 12(f). This motion is brought on grounds (1) that the case should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted, as Terteryan has not alleged facts sufficient to demonstrate NMAC plausibly called Terteryan using an automatic telephone dialing system, or with an artificial or prerecorded voice, and (2) that Terteryan and the Davtyans’ (collectively “Plaintiffs”) allegations of “willful or knowing” violations of the TCPA are unsupported, inadequately plead, and should be stricken pursuant to Rule 12(f). This motion is based on this notice of motion and motion, the memorandum of points and authorities, the declarations of Scott J. Hyman and Genevieve R. Walser-Jolly regarding the meet and confer between the parties in anticipation of this motion (including voicemails and correspondence dated May 13, 2016, June 10, 2016, and August 8, 2016), all pleadings and records on file in this action, and upon such argument as may be presented at the hearing on this motion. Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 6 of 25 Page ID #:81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 vi NOTICE OF MOTION AND MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE THE FIRST AMENDED COMPLAINT DATED: August 12, 2016 SEVERSON & WERSON A Professional Corporation By: /s/ Scott J. Hyman Scott J. Hyman Attorneys for Defendant NISSAN MOTOR ACCEPTANCE CORPORATION Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 7 of 25 Page ID #:82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 1 MEMORANDUM OF POINTS AND AUTHORITIES MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In this putative class action for violation of the TCPA1, Terteryan alleges NMAC placed at “least 2 calls to his cellular telephone” without consent. (FAC ¶¶ 24, 27.) On that basis, Terteryan seeks statutory damages of at least $500 and up to $1,500 per call, or between $1,000 and $3,000. He also seeks to represent “all other persons similarly situated.” (FAC ¶ 57.) The FAC should be dismissed as to Terteryan as set forth below. Terteryan’s FAC fails to state a claim upon which relief can be granted because Terteryan fails to adequately plead that NMAC “made” a call by “use” of an “automatic telephone dialing system or an artificial or prerecorded voice” under the TCPA. Specifically, the TCPA states: It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States-(A) to make any call . . .using any automatic telephone dialing system or an artificial or prerecorded voice-(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call. 47 U.S.C. § 227(b)(1)(A) (emphasis added). “[F]ormulaic recitation of the elements” of TCPA claims-which is all Terteryan’s FAC does-“will not do.” Flores v. Adir Int’l, LLC, No. 15-00076, 2015 WL 4340020, at *3 (C.D. Cal. July 15, 2015). True, a TCPA plaintiff need not know at the pleadings stage all the inner workings of a defendant’s automatic telephone dialing system (“ATDS”) or other equipment to satisfy Rule 8 pleading standards. However, “[p]laintiffs alleging the 1 “TCPA” refers to the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 8 of 25 Page ID #:83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 2 MEMORANDUM OF POINTS AND AUTHORITIES 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.” Id. at *3 (citations omitted). But, here, that Rule 8 limitation is a red- herring: the inquiry of a TCPA defendant’s hardware/software differs from the inquiry of whether an ATDS was “used.” Despite having the opportunity to amend, Tereteryan does not meet the pleading requirements to infer that NMAC “used” an ATDS or an artificial or prerecorded voice2. Terteryan is aware of the deficiencies in his complaint. NMAC initiated extensive meet and confer efforts after Tereteryan filed his original Complaint. Terteryan cannot supply any facts suggesting that NMAC “used” an ATDS to call him because, as NMAC advised, the calls placed to Terteryan were placed manually using human fingers dialing on a desktop telephone. (Hyman Decl. ¶¶ 3, 4.) In response, Terteryan continues to gloss over his pleading obligation under the TCPA-namely, facts supporting the TCPA requirement that NMAC “made” calls to Tereteryan “using” an ATDS or an artificial or prerecorded voice. Terteryan must plead each such element, since “[i]t is a fundamental canon of statutory construction that a statute should not be construed so as to render any of its provisions mere surplusage.”3 Nor may a plaintiff infer “use” of an ATDS by merely averring that the defendant has an ATDS: 2 Nor can Terteryan allege sufficient facts consistent with Rule 11. See Declaration of Scott J. Hyman (“Hyman Decl.”) ¶¶ 3, 4 (informing counsel that the calls to Terteryan’s alleged number were placed manually). 3 U.S. v. Wenner, 351 F.3d 969, 975 (9th Cir. 2003) (citing Ratzlaf v. United States, 510 U.S. 135, 140-41 (1994) (noting that statutory language should not be construed so as to render certain words or phrases mere surplusage); Bowsher v. Merck & Co., 460 U.S. 824, 833 (1983) (restating “the settled principle of statutory construction that we must give effect ... to every word of the statute”)). Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 9 of 25 Page ID #:84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 3 MEMORANDUM OF POINTS AND AUTHORITIES To be sure, it is at least possible that Defendant utilized a system that is capable of storing or generating a random or sequential list of telephone numbers and then dialing them-i.e., none of Plaintiffs’ allegations affirmatively rule it out. But Plaintiff must do more than point to ‘a sheer possibility that [ ] defendant has acted unlawfully.’ Flores, 2015 WL 4340020, at *6 (citing Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Terteryan only pleads conclusions that track the language of the TCPA. (FAC ¶ 26.) Terteryan does not include a single fact to show that NMAC used an ATDS or prerecorded voice in making calls to him. The conclusions contained in the FAC are fatally insufficient and the FAC should be dismissed as to Terteryan. Additionally, all three Plaintiffs conclude that the alleged TCPA violations were made willfully and knowingly. (FAC ¶¶ 60(d), 69, Prayer for Relief(E).) Plaintiffs fail to plead any supporting facts, however. As such, these portions of the FAC should be stricken pursuant to Rule 12(f). II. BACKGROUND A. Terteryan’s Allegations Terteryan alleges that he was called regarding the delinquent debt of a third party. (FAC ¶¶ 23, 24.) Terteryan goes on to allege that NMAC made at least two calls to his cellular telephone number regarding the third party’s debt. (Id. ¶ 27.) Terteryan contends that he did not give consent to NMAC to call his cellular telephone number. (Id. ¶¶ 24, 30.) Terteryan unilaterally concludes that in making the two calls, “NMAC used an ATDS….” (Id. ¶ 26.) Terteryan does not, however, allege any facts to suggest that he was called with an ATDS or using an artificial or prerecorded voice as opposed to a manually dialed call. B. Plaintiffs’ Allegations All three Plaintiffs conclude that “NMAC’s violations [of the TCPA] were negligent, or alternatively, they were willful or knowing.” (FAC ¶¶ 60(d), 69.) This Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 10 of 25 Page ID #:85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 4 MEMORANDUM OF POINTS AND AUTHORITIES is the sole allegation to support Plaintiffs’ contention that they are entitled to treble damages. (FAC ¶ Prayer for Relief (E).) Plaintiffs fail to allege a single fact. Such a bare and unsupported assertion is fatally insufficient to meet the pleading requirements. The willfulness allegation should be stricken. C. Meet And Confer Efforts Prior To Bringing This Motion Counsel for NMAC spoke with Counsel for Terteryan on several occasions and discussed the fact that the calls at issue were manually dialed using fingers as opposed to being placed with an ATDS. NMAC even offered to supply a sworn declaration detailing the use of fingers and lack of an ATDS being used to place the calls Terteryan claims to have received. Counsel for NMAC then sent a letter on May 13, 2016 to recap NMAC’s position regarding the manual calls and to again offer the declaration. While the complaint has now been amended to add two new plaintiffs / class representatives, no new or additional facts are pled to show that an ATDS was used to call Terteryan. A further meet and confer letter was sent to Plaintiffs’ Counsel outlining these deficiencies on August 8, 2016. (Declaration of Genevieve R. Walser-Jolly (“Walser-Jolly Decl.”), ¶¶ 4, 5.) The August 8, 2016 letter also detailed the deficiencies in Plaintiffs’ request for treble damages - that there are no facts to show willful or knowing violations of the TCPA by NMAC. (Id.) III. THE FAC FAILS TO STATE A TCPA CLAIM UNDER RULE 12(b)(6) A. 12(b)(6) Pleading Standards 1. Formulaic Recitations Will Not Do True, on a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true the facts properly pleaded in the complaint, but not conclusions of law. Alperin v. Vatican Bank, 410 F.3d 532, 541 (9th Cir. 2005). A dismissal may be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 11 of 25 Page ID #:86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 5 MEMORANDUM OF POINTS AND AUTHORITIES F.2d 696, 699 (9th Cir. 1990); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984). Under Rule 8, a court must consider only the factual allegations of the complaint-not its legal conclusions or its bare recitation of the elements of a claim-to determine if the plaintiff has made a plain statement of the grounds of her entitlement to relief. Fed R. Civ. P. 8(a). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949. And, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citation omitted). If a plaintiff has alleged sufficient facts to bear out the elements of the claim, the court must then consider whether the adequately pleaded facts state a “plausible,” rather than a merely “possible,” claim. Iqbal, 129 S. Ct. at 1950; Twombly, 550 U.S. at 555. Thus, “formulaic recitation of the elements” of TCPA claims “will not do.” Flores, 2015 WL 4340020, at *3. 2. Terteryan Must Plead Plausible Facts, By Indirect Evidence, That The Calls He Received Were Placed By An ATDS Applying Iqbal and Twombly in the TCPA context, “[t]he majority of courts to have considered the issue . . . have found that a plaintiff’s bare allegation that a defendant used an ATDS is not enough.” Curry v. Synchrony Bank, N.A., No. 15- 322, 2015 WL 7015311, at *2 (S.D. Miss. Nov. 12, 2015) (collecting cases). Thus, to state a claim, Terteryan must plead concrete allegations that could lead to the inference that an ATDS, or an artificial or prerecorded voice, was used to place the relevant call. See, e.g., Williams v. T-Mobile USA, Inc., No. 15-03384, 2015 WL 5962270, at *2 (N.D. Cal. Oct. 14, 2015) (dismissing TCPA claim where “plaintiffs merely recite[d] the text of the statute” and failed to “supplement[] the otherwise conclusory allegations with allegations that described the ‘impersonal manner’ of Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 12 of 25 Page ID #:87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 6 MEMORANDUM OF POINTS AND AUTHORITIES the messages . . . . [or] a ‘telltale pause’ between the time the plaintiff answered a call and the time an agent began speaking . . . .”) (citations omitted); see also Lofton v. Verizon Wireless (VAW) LLC, No. 13-5665, 2015 WL 1254681, at *5 (N.D. Cal. Mar. 18, 2015) (mere allegation that the “volume of calls at issue would have necessitated a predictive dialing system” failed to state claim); Hurtwitz v. Pinnacle Fin. Group, Inc., No. 14-10040, 2014 WL 2479999, at *3 (E.D. Mich. June 3, 2014) (dismissing TCPA complaint with prejudice where plaintiff “fail[ed] to plead any of the facts necessary to satisfy the Twombly/Iqbal standard for a TCPA claim, namely ‘(i) the number of allegedly unlawful calls received, (ii) the approximate dates and times of these calls, and (iii) circumstances that would support the inference that these calls were placed with [an ATDS] or an artificial or prerecorded voice.’”) (citation omitted; emphasis added)). “Plaintiffs 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.” Flores, 2015 WL 4340020, at *3 (citations omitted). Thus, to plead the use of an ATDS, a plaintiff must plead some facts that could lead to the inference that the call placed to them was done so by “a system has the capacity to operate without human intervention.” See, e.g., Derby v. AOL, Inc., No. 15-00452, 2015 WL 5316403, at *4 (N.D. Cal. Sept. 11, 2015) (dismissing TCPA claim with prejudice where “[t]he facts alleged in the FAC do not show that the AIM system has the capacity to operate without human intervention and without user consent.”); see also McKenna v. WhisperText, No. 14- 00424, 2015 WL 5264750, at *3 (N.D. Cal. Sept. 9, 2015) (dismissing TCPA claim with prejudice where “McKenna’s statements that the Whisper App sends text invitations only at the user’s affirmative direction foreclose any plausibility that WhisperText sends messages using an ATDS, without human intervention.”). Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 13 of 25 Page ID #:88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 7 MEMORANDUM OF POINTS AND AUTHORITIES In other words, to adequately plead “use” of an ATDS, Terteryan must “plead those facts which are likely within [his] knowledge, but which [he has] not included in [his] complaint….This would include the content of [the] calls, whether [he] spoke to a human, whether there was dead air prior to a human picking up the line, or any other facts which may tend to make the use of an ATDS more likely.” Curry, 2015 WL 7015311, at *3 (citations and quotations omitted). As these cases also make clear, nothing in the FCC’s recent TCPA Order4 undermines these pleading standards requiring allegations of indirect evidence that the call was placed (1) by an ATDS and (2) without human intervention. The FCC’s 2015 TCPA Order “does not suggest that a system that never operates without human intervention constitutes an ATDS under the statute. To the contrary, the 2015 TCPA Order reiterates that ‘the basic functions of an autodialer are to dial numbers without human intervention, and to dial thousands of numbers in a short period of time.’ ” See Derby, 2015 WL 5316403, at *4 (citing FCC’s 2015 TCPA at ¶ 17 and Luna v. Shac, LLC, No. 14-00607, 2015 WL 4941781 (N.D. Cal. Aug. 19, 2015) (in turn granting summary judgment for defendant on TCPA claim because subject text messages were sent due to human intervention)). As set forth below, Terteryan failed to plead facts supporting that he was contacted via “use” of an ATDS without human intervention or with an artificial or prerecorded voice. The FAC should thus be dismissed. B. Terteryan Fails To Plead “Use” Of An ATDS, Randomness, Or That The Calls Were “Made” Without Human Intervention It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States-(A) to make any call . . .using any automatic telephone dialing system or an artificial or prerecorded voice-(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio 4 See In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, FCC 15-72, 30 F.C.C.R. 7961, ¶ 17 (July 10, 2015) (“2015 TCPA Order”). Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 14 of 25 Page ID #:89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 8 MEMORANDUM OF POINTS AND AUTHORITIES common carrier service, or any service for which the called party is charged for the call. 47 U.S.C. § 227(b)(1)(A) (emphasis added). Applicable here, Terteryan must plead more than the existence of an ATDS (FAC ¶¶ 4, 46-49), in order to honor the canon of construction that each word of a statute is to be given effect.5 Terteryan must plead facts to show that an ATDS was “used” to “make” the calls. 1. Terteryan Merely Restates The Law, Without Pleading Any Facts To Demonstrate That The Calls He Received Were Placed Using An ATDS Or An Artificial Or Prerecorded Voice Here, Terteryan concludes that NMAC used an “ATDS to call Plaintiff’s cellular telephone….” (FAC ¶ 26.) Terteryan (unlike the Davtyans) does not make any allegations that he was called using a prerecorded voice. Terteryan, instead, focuses entirely on whether or not he was called using an ATDS. (Id.) Terteryan fails to plead any facts from which the court can infer the use of an ATDS though. “Such a naked assertion need not be taken as true,” however.” Flores, 2015 WL 4340020, at *2-5 (citing Kramer v. Autobytel, Inc., 759 F.Supp.2d 1165, 1171 (N.D. Cal. 2010)). Similarly, such an allegation fails to meet the particularity requirements of Twombly/Iqbal. See Hurtwitz, 2014 WL 2479999, at *3 (“[F]acts necessary to satisfy the Twombly/Iqbal standard for a TCPA claim [include] circumstances that would support the inference that these calls were placed with [an ATDS] or an artificial or prerecorded voice.”) (citing Wallack v. Mercantile Adjustments Bureau, Inc., No. 14-10387, 2014 WL 1515852, at *2 (E.D. Mich. Apr. 18, 2014) (collecting TCPA cases dismissed for failure to allege facts regarding calls at issue)). 5 Wenner, 351 F.3d at 975 (citing Ratzlaf, 510 U.S. 135 at 140-41 (noting that statutory language should not be construed so as to render certain words or phrases mere surplusage); Bowsher, 460 U.S. at 833(restating “the settled principle of statutory construction that we must give effect ... to every word of the statute”)). Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 15 of 25 Page ID #:90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 9 MEMORANDUM OF POINTS AND AUTHORITIES If an ATDS were used, the facts tending to show “use” of an ATDS would be within the plaintiff’s knowledge, and must be alleged. See Curry, 2015 WL 7015311, at *3 (Plaintiffs must “plead those facts which are likely within [their] knowledge, but which [they have] not included in [their] complaint….This would include the content of [the] calls, whether [they] spoke to a human, whether there was dead air prior to a human picking up the line, or any other facts which may tend to make the use of an ATDS more likely.”) (citations and quotations omitted); see also Williams, 2015 WL 5962270, at *2 (To establish ATDS or pre-recorded voice use, the plaintiff must allege, for example, a “telltale pause” or that a message was “impersonal.”). Terteryan “must do more than point to ‘a sheer possibility that [ ] defendant has acted unlawfully.”’ Flores, 2015 WL 4340020, at *4 (quoting Iqbal, 556 U.S. at 678). Instead, a “[p]laintiff must allege facts that, if true, would take his claims ‘across the line from conceivable to plausible.’” Flores, 2015 WL 4340020, at *3 (quoting Twombly, 556 U.S. at 680). In Flores, Judge Birotte rejected the plaintiff’s formulaic allegations as implausible under Twombly. 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).) Unlike the authorities Plaintiff relies upon, however, “the content of the message, the context in which it was received, and the existence of similar messages” all weigh against an inference that Defendant used an ATDS. The content of the messages, even if drawn from a template, included a unique reference number that remained consistent in every text message. (Dkt. No. 30, ¶¶ 7, 9.) The context of the messages was Defendant’s desire to collect on a specific debt, not mass marketing. (Id., at ¶¶ 19a, 20.) And the existence of similar messages to the same person, containing the same reference number, and sent for the purpose of debt collection only supports the inference that Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 16 of 25 Page ID #:91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 10 MEMORANDUM OF POINTS AND AUTHORITIES Defendant expressly targeted Plaintiff. That sort of specificity belies Plaintiff’s claims of randomness and does not, by itself, support a reasonable inference that Defendant used an ATDS. Flores, 2015 WL 4340020, at *2-5. Not only does Terteryan fail to plead facts showing that NMAC used an ATDS to call him, but he actually plead facts that suggest otherwise. For example, Terteryan only alleges two calls as opposed to a voluminous amount of calls. (FAC ¶ 27.) Terteryan also alleges that as a result of one of the calls, a person left him a voicemail. (Id.) This allegation suggests (and is directly consistent with NMAC’s meet and confer) that a specific person manually dialed Terteryan’s number and then left a voicemail when he didn’t answer. Terteryan also alleges that he was specifically called as an acquaintance of the NMAC’s customer. (FAC ¶¶ 25, 27.) The facts alleged by Terteryan are fatally insufficient to infer that NMAC placed calls to Terteryan using an ATDS. See Curry, 2015 WL 7015311, at *3. Conclusory allegations that fail to support use of an ATDS are insufficient to maintain a claim for violation of the TCPA. See, e.g., Hurtwitz, 2014 WL 2479999, at *3 (“[F]acts necessary to satisfy the Twombly/Iqbal standard for a TCPA claim [include] circumstances that would support the inference that these calls were placed with [an ATDS] or an artificial or prerecorded voice.”); Wallack, 2014 WL 1515852, at *2 (collecting cases); Daniels v. Commun. Lending, Inc., No. 13-488, 2014 WL 51275, at *4-6 (S.D. Cal. Jan. 6, 2014) (allegation that defendant violated TCPA “by using an automated telephone dialing system to call the Plaintiff’s number, which is assigned to a cellular telephone” insufficient). Instead, “[t]o succeed on his TCPA claim, Plaintiff must establish that Defendant placed calls to his cellular phone using an ATDS or artificial or prerecorded voice.” See Estrella, 2015 WL 6742062, at *1-3. It is not sufficient for a plaintiff to merely rely on evidence that an ATDS is in the defendant’s possession; rather use of the ATDS by must be shown. Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 17 of 25 Page ID #:92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 11 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff makes broad assertions that Defendant uses Castel Connects and Avaya predictive dialing systems, which ‘are considered to have the present capacity to autodial such that they are an automatic telephone dialing system‘ (Dkt. 35 at 3, 8-9). While that may be true, there is no evidence that Defendant used either of these predictive dialing systems to place calls to Plaintiffs cellular phone. And again, to the contrary, John testified that the calls were placed manually. See id. at * 3 (emphasis added). Here, as in Estrella, Terteryan points to the mere existence of an alleged ATDS owned by NMAC but fails to allege facts showing that the ATDS was used to call Terteryan. . (FAC ¶¶ 3-5.) Terteryan’s allegations amount to mere speculation. (Id.) Such speculation is insufficient. Estrella, 2015 WL 6742062, at *3, n.6. Terteryan fails to allege facts about the characteristics of the calls to support his bare conclusion that an ATDS or an artificial or prerecorded voice was used, and thus Terteryan fails to state a claim for violation of the TCPA. 2. Terteryan Alleges No Randomness Terteryan’s FAC pleads no facts to support that the calls he allegedly received were placed in a random or sequential fashion. In Flores, the plaintiff alleged that the defendant was a debt collector and sent the plaintiff a number of text message for the purpose of collecting a specific debt. Flores, 2015 WL 4340020, at *4. The Flores court dismissed the TCPA text message class action reasoning that plaintiff’s allegations suggested direct targeting to collect on a specific debt, which is inconsistent with the sort of random or sequential number generation required for an ATDS. Id. Here, as in Flores, Terteryan’s allegations weigh against any inference that the call he received was placed by an ATDS. See Flores, 2015 WL 4340020, at *2- 5 (“‘[T]he content of the message, the context in which it was received, and the existence of similar messages’ all weigh against an inference that Defendant used an ATDS.”). For example, far from alleging facts to show that the calls Terteryan received were part of a dialer campaign, he admits that the calls were intended to Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 18 of 25 Page ID #:93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 12 MEMORANDUM OF POINTS AND AUTHORITIES reach a specific third party regarding a single debt. (FAC. ¶¶ 25-27.) Terteryan does not provide any facts to show that the calls he allegedly received had anything to do with a marketing or dialer campaign. Terteryan supplies no facts suggesting he-as opposed to the customer-was ever the target of a dialer campaign or that the calls that Terteryan received had the hallmarks of a call placed by a dialer campaign. Here, Terteryan’s allegations support that the calls at issue were non-random, placed for a specific purpose: to speak with the third party about the account status. See Williams, 2015 WL 5962270, at *3 (“[T]he allegations . . . suggest that [Defendant] intended to call [Plaintiffs], which undermines the allegations of a randomly or sequentially generated call.”); see also Duguid v. Facebook, Inc., No. 15-00985, 2016 WL 1169365, at *5 (N.D. Cal. Mar. 24, 2016) (“Where . . . ‘[p]laintiff’s own allegations suggest direct targeting that is inconsistent with the sort of random or sequential number generation required for an ATDS,’ courts conclude that the allegations are insufficient to state a claim for relief under the TCPA.”) (quoting Flores, 2015 WL 4340020, at *4, 7). Terteryan’s TCPA complaint should thus be dismissed. See Daniels, 2014 WL 51275, at *5 (dismissing complaint because the defendant’s “alleged calls to Plaintiffs do not appear to have been ‘random,’[citation]; instead, the calls are alleged to be directed specifically toward Plaintiffs”); Knutson v. Reply!, Inc., No. 10-1267, 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”). 3. Terteryan Does Not Allege An Absence Of Human Intervention Finally, Terteryan does not allege facts to show that the calls were made without human intervention. See, e.g., McKenna, 2015 WL 5264750, at *3 (dismissing TCPA claim with prejudice where “McKenna’s statements that the Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 19 of 25 Page ID #:94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 13 MEMORANDUM OF POINTS AND AUTHORITIES Whisper App sends text invitations only at the user’s affirmative direction foreclose any plausibility that WhisperText sends messages using an ATDS, without human intervention.”); Derby, 2015 WL 5316403, at *4 (dismissing TCPA claim where “[t]he facts alleged in the FAC do not show that the AIM system has the capacity to operate without human intervention and without user consent.”); 2015 TCPA Order, supra, n.1 (holding ‘the basic functions of an autodialer are to dial numbers without human intervention, and to dial thousands of numbers in a short period of time.’ ”). It is Terteryan’s burden to demonstrate that the calls he received were placed without human intervention. See Estrella v. Ltd Fin. Servs., LP, No. 14-2624, 2015 WL 6742062, *1-3 (M.D. Fla. Nov. 2, 2015) (granting summary judgment to a TCPA defendant who manually dialed calls by a “point-and-click” method, because “[t]o succeed on his TCPA claim, Plaintiff must establish that Defendant placed calls to his cellular phone using an ATDS or artificial or prerecorded voice.”) (emphasis added); see also Freyja v. Dun & Bradstreet, Inc., No. 14-7831, 2015 WL 6163590, at *1 (C.D. Cal. Oct. 14, 2015) (granting defendant summary judgment where “uncontroverted testimony of the actual agent at Convergys who called Plaintiff shows that the agent called Plaintiff manually using an Avaya 4610 desktop telephone.”); Gaza v. LTD Fin. Servs., L.P., No. 14-1012, 2015 WL 5009741, at *4 (M.D. Fla. Aug. 24, 2015) (granting defendant summary judgment, as “Gaza has pointed to no admissible evidence establishing that the calls placed to Gaza were made with ‘dialing equipment’ that has ‘the capacity to store or produce, and dial random or sequential numbers.’ ”); Luna, 2015 WL 4941781 (granting defendant summary judgment as subject text messages were sent with human intervention). Here, Terteryan fails to allege facts supporting any plausible inference that the calls he received were placed without human intervention. Instead, Terteryan’s admission that he spoke with a live person and received a voicemail (as opposed to a prerecorded voice) indicates that human intervention was significantly involved in Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 20 of 25 Page ID #:95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 14 MEMORANDUM OF POINTS AND AUTHORITIES placing the calls at issue. (FAC ¶ 27.) As Judge Fischer and Judge Birotte made clear in Freyja, 2015 WL 6163590, at *1 and Flores, 2015 WL 4340020, at *3, respectively, use of an ATDS is key for a TCPA claim to survive. The calls allegedly received by the Terteryan must have been placed by an ATDS; the metaphysical and unrelated existence of an ATDS cannot cure the elemental defect. Judge Fischer suggested in Freyja that the defendant’s telephony could have been configured or connected to a dialer, but that the calls were instead placed by a desktop telephone that required human intervention. Freyja, 2015 WL 6163590, at *1 (“It could, at best, be used to receive calls from an autodialer if the agent’s computer had the appropriate software, the agent had proper login credentials, and the dialer was appropriately configured.” So, too, did Judge Birotte-finding the possibility of the existence of an ATDS system insufficient; the call received must have been placed by the ATDS. Flores, 2015 WL 4340020, at *6 (“To be sure, it is at least possible that Defendant utilized a system that is capable of storing or generating a random or sequential list of telephone numbers and then dialing them-i.e., none of Plaintiff’s allegations affirmatively rule it out. But Plaintiff must do more than point to “a sheer possibility that [ ] defendant has acted unlawfully.”). Terteryan has not (and cannot) allege that these calls were made without human intervention. The FAC should thus be dismissed with prejudice as to Terteryan. IV. PLAINTIFFS’ UNSUPPORTED WILLFULNESS ALLEGATIONS SHOULD BE STRICKEN In the alternative, Plaintiffs’ wholly unsupported allegations that NMAC’s supposed TCPA violations were “willful or knowing” should be stricken. (See FAC ¶¶ 60(d), 69, and Prayer for Relief (E).) Rule 12(f) permits a court to “order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 21 of 25 Page ID #:96 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 15 MEMORANDUM OF POINTS AND AUTHORITIES matter.” Fed.R.Civ.P. 12(f). Though motions to strike are generally viewed with disfavor, courts nevertheless routinely grant motions to strike wholly unsupported allegations of willful or malicious conduct. See, e.g., Taiwan Semiconductor Mfg. Co. v. Tela Innovations, Inc., No. 14-00362-BLF, 2014 WL 3705350, at *7 (N.D. Cal. July 24, 2014) (granting “Motion to Strike Plaintiff’s allegations of ‘willful and malicious’ conduct,” where Plaintiff had “not pled any facts to support willful and malicious conduct by individuals.”); F5 Networks, Inc. v. A10 Networks, Inc., No. 07-1927, 2008 WL 687114, at *2 (W.D. Wash. Mar. 10, 2008) (striking unsupported allegation of willfulness and request for treble damages in patent infringement suit). And, courts have likewise dismissed separately pleaded, unsupported claims for willful violation of the TCPA, where the complaint failed to supply any allegations to support knowing or willful conduct. See Duchene, 2016 WL 3997031, at *7. There, the court held, “willful or knowing violation of [the] TCPA requires that Plaintiff has to plead that Defendant was made aware of/notified that Plaintiff did not consent to calls from Defendant.” Here, none of the three Plaintiffs plead any facts to support their allegations that NMAC’s supposed TCPA violations were willful or knowing, rendering these allegations insufficient and immaterial. Plaintiffs’ willfulness allegations should thus be stricken. See id.; see also Taiwan Semiconductor Mfg. Co., 2014 WL 3705350, at *7 (striking unsupported allegations of willful or malicious conduct); F5 Networks, Inc., 2008 WL 687114, at *2 (same, in patent infringement context). NMAC therefore moves that Plaintiffs’ “knowing and willful” allegations be stricken. (See FAC ¶¶ 60(d), 69, and Prayer for Relief (E).) V. CONCLUSION For the foregoing reasons, NMAC respectfully requests that the Court grant its motion to dismiss Terteryan’s First Amended Complaint for failure to state a claim upon which relief may be granted, under Rule 12(b)(6). As Terteryan has not Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 22 of 25 Page ID #:97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 16 MEMORANDUM OF POINTS AND AUTHORITIES (and cannot) remedy these pleading defects, the First Amended Complaint should be dismissed with prejudice. NMAC also requests that the allegations of willful and knowing TCPA violations be stricken as Plaintiffs fail to allege any supporting fact. DATED: August 12, 2016 SEVERSON & WERSON A Professional Corporation By: /s/ Scott J. Hyman Scott J. Hyman Attorneys for Defendant NISSAN MOTOR ACCEPTANCE CORPORATION Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 23 of 25 Page ID #:98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253892.1 PROOF OF SERVICE PROOF OF SERVICE Terteryan v. Nissan Motor Acceptance Corporation USDC Central District Case No. 2:16-cv-02029 GW (KSx) At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Orange, State of California. My business address is The Atrium, 19100 Von Karman Avenue, Suite 700, Irvine, CA 92612. On August 12, 2016, I served true copies of the following document(s): 1. NOTICE OF MOTION AND MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 2. DECLARATION OF SCOTT J. HYMAN IN SUPPORT OF NISSAN MOTOR ACCEPTANCE CORPORATION’S MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE 3. DECLARATION OF GENEVIEVE R. WALSER-JOLLY IN SUPPORT OF NISSAN MOTOR ACCEPTANCE CORPORATION’S MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE 4. [PROPOSED] ORDER GRANTING NISSAN MOTOR ACCEPTANCE CORPORATION’S MOTION TO DISMISS PLAINTIFFS’ FIRST COMPLAINT on the interested parties in this action as follows: Bryan Kemnitzer, Esq. Nancy Barron, Esq. Adam J. McNeile, Esq. KEMNITZER, BARRON, & KRIEG, LLP 445 Bush St., 6th Fl. San Francisco, CA 94108 Attorneys for Plaintiff ARAM TERTERYAN and the putative class Telephone: (415) 632-1900 bryan@kbklegal.com nancy@kbklegal.com adam@kbklegal.com Ian Lyngklip, Esq. LYNGKLIP & ASSOCIATES, PLC 24500 Northwestern Hwy., Suite 206 Southfield, MI 48075 Attorneys for Plaintiff ARAM TERTERYAN and the putative class Telephone: (248) 208-8864 ian@michiganconsumerlaw.com [X] BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Participants in the case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 24 of 25 Page ID #:99 gfew N. Tran Executed on August 12, 2016, at Irvine, California. 06888.0238/8253892.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Case 2:16-cv-02029-GW-KS Document 20 Filed 08/12/16 Page 25 of 25 Page ID #:100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8246069.1 DECLARATION OF SCOTT J. HYMAN IN SUPPORT OF NISSAN MOTOR ACCEPTANCE CORPORATION’S MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE SCOTT J. HYMAN (State Bar No. 148709) sjh@severson.com GENEVIEVE R. WALSER-JOLLY (State Bar No. 262784) grw@severson.com SEVERSON & WERSON A Professional Corporation The Atrium 19100 Von Karman Avenue, Suite 700 Irvine, California 92612 Telephone: (949) 442-7110 Facsimile: (949) 442-7118 DUANE M. GECK (State Bar No. 114823) dmg@severson.com REBECCA S. SAELAO (State Bar No. 222731) rss@severson.com SEVERSON & WERSON A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, California 94111 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 Attorneys for Defendant NISSAN MOTOR ACCEPTANCE CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION ARAM TERTERYAN, individually and on behalf of all others similarly situated, Plaintiff, vs. NISSAN MOTOR ACCEPTANCE CORPORATION, Defendant. Case No. 2:16-cv-02029 GW (KSx) Hon. George H. Wu Ctrm. 10 - Spring St. CLASS ACTION DECLARATION OF SCOTT J. HYMAN IN SUPPORT OF NISSAN MOTOR ACCEPTANCE CORPORATION’S MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE Date: January 19, 2017 Time: 8:30 a.m. Crtrm.: 10 Action Filed: March 24, 2016 FAC Filed: June 15, 2016 Trial Date: None Set Case 2:16-cv-02029-GW-KS Document 20-1 Filed 08/12/16 Page 1 of 6 Page ID #:101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8246069.1 DECLARATION OF SCOTT J. HYMAN IN SUPPORT OF NISSAN MOTOR ACCEPTANCE CORPORATION’S MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE I, SCOTT J. HYMAN, hereby declare: 1. I am an attorney licensed to practice law in the State of California and a member of Severson & Werson, A Professional Corporation, counsel of record for Defendant Nissan Motor Acceptance Corporation (“NMAC”). I have personal knowledge of the matters set forth below and could and would testify competently thereto. 2. NMAC initiated extensive meet and confer efforts after Plaintiff filed the original Complaint. These meet and confer efforts included multiple phone calls made by me to Plaintiff’s counsel of record, and included correspondence from me to Plaintiff’s counsel detailing the deficiencies in Plaintiff’s Complaint, as set forth below. 3. In the course of meeting and conferring with Counsel for Plaintiff, I also advised Counsel that, based on the factual investigation performed by NMAC, any telephone contact initiated by NMAC with Plaintiff was the result of a telephone call placed manually using human fingers dialing on a desktop Siemens telephone. 4. Attached hereto as Exhibit A is a true and correct copy of meet and confer correspondence I sent to Plaintiff’s Counsel on May 13, 2016. 5. Following the meet and confer attempts, Counsel filed a First Amended Complaint adding two new plaintiffs / class representatives. 6. On August 3, 2016, Counsel for Plaintiff and I exchanged voicemails in an attempt to meet and confer regarding the First Amended Complaint. When we were unable to reach each other by phone, I asked my colleague, Genevieve R. Walser-Jolly, to continue the meet and confer in writing. 7. On August 11, 2016, I received a voicemail from Plaintiffs’ Counsel asking to discuss a briefing schedule for this motion. 8. The First Amended Complaint does not address the deficiencies pled Case 2:16-cv-02029-GW-KS Document 20-1 Filed 08/12/16 Page 2 of 6 Page ID #:102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8246069.1 2 DECLARATION OF SCOTT J. HYMAN IN SUPPORT OF NISSAN MOTOR ACCEPTANCE CORPORATION’S MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE by Aram Terteryan. To date, I have received no indication from Counsel for Plaintiffs that they intend to further amend to address the deficiencies identified by NMAC. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 12th day of August 2016, at Irvine, California. /s/ Scott J. Hyman Scott J. Hyman Case 2:16-cv-02029-GW-KS Document 20-1 Filed 08/12/16 Page 3 of 6 Page ID #:103 EXHIBIT A Case 2:16-cv-02029-GW-KS Document 20-1 Filed 08/12/16 Page 4 of 6 Page ID #:104 Scott J. Hyman Attorney Direct Line: (949) 225-7951 sjh@severson.com Severson &Werson The Atrium 19100 Von Karman Avenue, Suite 700 Irvine, CA 92612 'Telephone: (949) 442-7110 Facsimile: (949) 442-7118 A Professional Corporation May 13, 2016 VIA FACSIMILE Bryan Kemnitzer, Esq. Adam McNeile, Esq. Kemnitzer, Barron, & Krieg, LLP 445 Bush St., 6th Fl. San Francisco, CA 94108 Re: Aram Terteryan v. Nissan Motor Acceptance Corporation USDC - Central District of California Case No. 2:16-cv-02029 Gentlemen: This is further to my electronic mails and our meet and confer discussions earlier this week in connection with responding to the Complaint. As I relayed to you, the NMAC collection representative who placed the calls to your client did not use an auto dialer. She used her fingers to press the numbers on her desktop telephone handset; she had no access to any dialer and no dialer had access to her. Because no ATDS was used, and she placed the calls manually, the TCPA never is triggered. This, of course, is why your complaint as currently pleaded is deficient and why you have not and could not plead the existence of "clicks", "pauses", or an automated message as required to plead that a call was placed non-manually and by use of an ATDS. E.g. Schlotleldt v. Wells Fargo Home Mortgage, Inc., 2016 WL 406341, at *5 (N.D.I11. 2016); Hensarling v. Wells Fargo Bank, MA., 2016 WL 775950, at *3-4 (E.D.Cal. 2016); Ananthapadmanabhan v. BSI Financial Services, Inc., 2015 WL 8780579, at *4 (N.D.I11. 2015). Our client is willing to provide a declaration containing these facts if such a declaration would be helpful in resolving this matter. You also informed me that you might add an additional (not a substitute) class representative/plaintiff to this action. We understand that you have not yet been formally retained and/or are still in the process of evaluating this potential representation. As stated, we can cooperate with you on the procedural steps necessary to settle the pleadings depending on what we see in the proposed amendment and the identification of the potential additional class representative. But, our response to the complaint is due next Wednesday. 06888.5152/7608383.1 San. Francisco - Orange County Case 2:16-cv-02029-GW-KS Document 20-1 Filed 08/12/16 Page 5 of 6 Page ID #:105 Severson &Werson A Professional Corporation May 13, 2016 Page 2 Accordingly, please advise whether or not you intend to dismiss and/or amend the complaint lest we have to file our Motion to Dismiss/Stay on Wednesday. Very truly yours, etre(PkirtA-- Scott J. Hyman SJH:grw 06888.5152/7608383.1 Case 2:16-cv-02029-GW-KS Document 20-1 Filed 08/12/16 Page 6 of 6 Page ID #:106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253844.1 DECLARATION OF GENEVIEVE R. WALSER-JOLLY IN SUPPORT OF NISSAN MOTOR ACCEPTANCE CORPORATION’S MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE SCOTT J. HYMAN (State Bar No. 148709) sjh@severson.com GENEVIEVE R. WALSER-JOLLY (State Bar No. 262784) grw@severson.com SEVERSON & WERSON A Professional Corporation The Atrium 19100 Von Karman Avenue, Suite 700 Irvine, California 92612 Telephone: (949) 442-7110 Facsimile: (949) 442-7118 DUANE M. GECK (State Bar No. 114823) dmg@severson.com REBECCA S. SAELAO (State Bar No. 222731) rss@severson.com SEVERSON & WERSON A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, California 94111 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 Attorneys for Defendant NISSAN MOTOR ACCEPTANCE CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION ARAM TERTERYAN, individually and on behalf of all others similarly situated, Plaintiff, vs. NISSAN MOTOR ACCEPTANCE CORPORATION, Defendant. Case No. 2:16-cv-02029 GW (KSx) Hon. George H. Wu Ctrm. 10 - Spring St. CLASS ACTION DECLARATION OF GENEVIEVE R. WALSER-JOLLY IN SUPPORT OF NISSAN MOTOR ACCEPTANCE CORPORATION’S MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE Date: January 19, 2017 Time: 8:30 a.m. Crtrm.: 10 Action Filed: March 24, 2016 FAC Filed: June 15, 2016 Trial Date: None Set Case 2:16-cv-02029-GW-KS Document 20-2 Filed 08/12/16 Page 1 of 8 Page ID #:107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253844.1 DECLARATION OF GENEVIEVE R. WALSER-JOLLY IN SUPPORT OF NISSAN MOTOR ACCEPTANCE CORPORATION’S MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE I, GENEVIEVE R. WALSER-JOLLY, hereby declare: 1. I am an attorney licensed to practice law in the State of California and a member of Severson & Werson, A Professional Corporation, counsel of record for Defendant Nissan Motor Acceptance Corporation (“NMAC”). I have personal knowledge of the matters set forth below and could and would testify competently thereto. 2. NMAC initiated extensive meet and confer efforts after Plaintiff Aram Terteryan filed the original Complaint. These meet and confer efforts include a letter that I sent to Counsel on June 10, 2016. A true and correct copy of the June 10, 2016 letter is attached hereto as Exhibit A. 3. After the First Amended Complaint was filed, I again reached out to Counsel to meet and confer before filing the instant Motion to Dismiss / Strike. 4. Attached hereto as Exhibit B is a true and correct copy of meet and confer correspondence I sent to Plaintiffs’ Counsel on August 8, 2016. 5. In my letter dated August 8, 2016, I set forth the deficiencies in the First Amended Complaint. Namely, Mr. Terteryan fails to plead any facts to show that an ATDS was used by NMAC to call him. As to all three Plaintiffs, they request treble damages based on alleged knowing and willful violations of the TCPA by NMAC. However, the First Amended Complaint fails to identify any supporting facts. Based on the foregoing, I stated NMAC’s intention to file the Motion to Dismiss / Strike by the responsive due date of August 12, 2016. 6. On August 12, 2016, I returned Plaintiffs’ Counsel’s voicemail left for Scott J. Hyman seeking to discuss a briefing schedule for this Motion. I was unable to reach Counsel and left a voicemail for Adam J. McNeile. 7. To date, I have received no indication from Counsel for Plaintiffs that they intend to further amend to address the deficiencies identified by NMAC. I declare under penalty of perjury under the laws of the United States of Case 2:16-cv-02029-GW-KS Document 20-2 Filed 08/12/16 Page 2 of 8 Page ID #:108 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8253844.1 2 DECLARATION OF GENEVIEVE R. WALSER-JOLLY IN SUPPORT OF NISSAN MOTOR ACCEPTANCE CORPORATION’S MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE America that the foregoing is true and correct. Executed this 12th day of August 2016, at Irvine, California. /s/ Genevieve R. Walser-Jolly Genevieve R. Walser-Jolly Case 2:16-cv-02029-GW-KS Document 20-2 Filed 08/12/16 Page 3 of 8 Page ID #:109 EXHIBIT A Case 2:16-cv-02029-GW-KS Document 20-2 Filed 08/12/16 Page 4 of 8 Page ID #:110 Genevieve R. Walser -Jolly Attorney Direct Line: (949) 225-7209 grw@severson,com Severson 6-Werson The Atrium 19100 Von Karman Avenue, Suite 700 Irvine, CA 92612 Telephone: (949) 442-7110 Facsimile: (949) 442-7118 A Professional Corporation June 10, 2016 VIA FACSIMILE Bryan Kemnitzer, Esq. Adam McNeile, Esq. Kemnitzer, Barron, & Krieg, LLP 445 Bush St., 6th Fl. San Francisco, CA 94108 Re: Aram Terteryan v. Nissan Motor Acceptance Corporation USDC - Central District of California Case No. 2:16-cv-02029 Gentlemen: Following our meet and confer letter dated May 12, 2016, we spoke on the phone. You confirmed that you were still considering the addition of a second (not a substitute) class representative/plaintiff to this action. We understood that you were not yet formally retained and were still in the process of evaluating that potential representation. We have not heard anything additional since that conversation. NMAC's response to the complaint is currently due by June 17, 2016. Accordingly, please advise whether or not you intend to dismiss and/or amend the complaint lest we have to file our Motion to Dismiss/Stay on Friday. Very truly yours, GRW:grw 06888.0238/7922294.1 San Francisco - Orange County Case 2:16-cv-02029-GW-KS Document 20-2 Filed 08/12/16 Page 5 of 8 Page ID #:111 EXHIBIT B Case 2:16-cv-02029-GW-KS Document 20-2 Filed 08/12/16 Page 6 of 8 Page ID #:112 Genevieve R. Walser Jolly Attorney Direct line: (949) 225-7209 grw@severson.com Severson &Werson The Atrium 19100 Von }Carman Avenue, Suite 700 Irvine, CA 92612 Telephone: (949) 442-7110 Facsimile: (949) 442-7118 A Professional Corporation August 8, 2016 VIA FACSIMILE Bryan Kemnitzer, Esq. Adam McNeile, Esq. Kemnitzer, Barron, & Krieg, LLP 445 Bush St., 6th Fl. San Francisco, CA 94108 Re: Aram Terteryan v. Nissan Motor Acceptance Corporation USDC - Central District of California Case No. 2:16-cv-02029 Gentlemen: I understand that you and Scott Hyman have exchanged voicemails since the First Amended Complaint was filed. Since our offices have not had a chance to connect, we wanted to reach out again before filing a Motion to Dismiss the First Amended Complaint as to Aram Terteryan and a Motion to Strike as to all three Plaintiffs. As to Mr. Terteryan, the First Amended Complaint lacks factual allegations to show that NMAC used an auto dialer to call him. Nor can this issue be remedied by amendment. As we previously conveyed, the NMAC collection representative who placed the calls to your client did not use an auto dialer. She used her fingers to press the numbers on her desktop telephone handset; she had no access to any dialer and no dialer had access to her. We again offer to provide a declaration containing these facts if such a declaration would be helpful in resolving this matter. As to all three Plaintiffs, they seek treble damages based on their contention that the calls were made knowingly and willfully. There are no facts provided in the First Amended Complaint to support this contention and request. 06888.0238/8253779.1 San Francisco - Orange County Case 2:16-cv-02029-GW-KS Document 20-2 Filed 08/12/16 Page 7 of 8 Page ID #:113 Gen;►'. e R. Walse Severson &Werson A Professional Corporation August 8, 2016 Page 2 NMAC's response to the complaint is currently due by August 12, 2016. Accordingly, please advise whether or not you intend to dismiss and/or amend the complaint lest we have to file our Motion to Dismiss/Stay on Friday. Very truly yours, GRW:mnt 06888.0238/8253779,1 Case 2:16-cv-02029-GW-KS Document 20-2 Filed 08/12/16 Page 8 of 8 Page ID #:114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8286615.1 [PROPOSED] ORDER GRANTING NISSAN MOTOR ACCEPTANCE CORPORATION’S MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE THE FIRST AMENDED COMPLAINT UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION ARAM TERTERYAN, individually and on behalf of all others similarly situated, Plaintiff, vs. NISSAN MOTOR ACCEPTANCE CORPORATION, Defendant. Case No. 2:16-cv-02029 GW (KSx) Hon. George H. Wu Ctrm. 10 - Spring St. CLASS ACTION [PROPOSED] ORDER GRANTING NISSAN MOTOR ACCEPTANCE CORPORATION’S MOTION TO DISMISS PLAINTIFFS’ FIRST COMPLAINT Date: January 19, 2017 Time: 8:30 a.m. Crtrm.: 10 Action Filed: March 24, 2016 FAC Filed: June 15, 2016 Trial Date: None Set Case 2:16-cv-02029-GW-KS Document 20-3 Filed 08/12/16 Page 1 of 2 Page ID #:115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06888.0238/8286615.1 [PROPOSED] ORDER GRANTING NISSAN MOTOR ACCEPTANCE CORPORATION’S MOTION TO DISMISS ARAM TERTERYAN’S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE THE FIRST AMENDED COMPLAINT Defendant Nissan Motor Acceptance Corporation’s (“NMAC”) Motion to Dismiss Plaintiff Aram Terteryan (“Plaintiff”) First Amended Complaint and Motion to Strike the First Amended Complaint came on regularly for hearing on January 19, 2017 at 8:30 a.m. in courtroom 10 of the above-entitled Court. All appearances are as noted on the record. The Court, having read and considered the moving and opposing papers filed in this matter, as well as the oral argument, being fully advised, and good cause appearing, ORDERS as follows: 1. NMAC’s Motion to Dismiss Plaintiff Aram Terteryan’s FAC is GRANTED with prejudice; and 2. NMAC’s Motion to Strike Plaintiffs’ First Amended Complaint is GRANTED. IT IS SO ORDERED. DATED: _________________ Honorable George H. Wu United States District Judge Case 2:16-cv-02029-GW-KS Document 20-3 Filed 08/12/16 Page 2 of 2 Page ID #:116