Robert Campbell v. Bosley Medical Institute, Inc.

NOTICE OF MOTION AND MOTION to Dismiss Case [or, in the Alternative, Stay Case]

C.D. Cal.April 21, 2017

DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490011.1 NOTICE OF MOTION AND MOTION TO DISMISS, OR IN THE A LTERNATIVE, STAY EDWARD D. TOTINO (SBN 169237) edward.totino@dlapiper.com MONICA D. SCOTT (SBN 268109) monica.scott@dlapiper.com DLA PIPER LLP (US) 2000 Avenue of the Stars, Suite 400 North Tower Los Angeles, California 90067-4704 Tel: 310.595.3000 Fax: 310.595.3300 Attorneys for Defendants BOSLEY MEDICAL INSTITUTE, INC. d/b/a BOSLEY, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ROBERT CAMPBELL, on behalf of himself and other persons similarly situated, Plaintiff, v. BOSLEY MEDICAL INSTITUTE, INC. D/B/A BOSLEY, INC., Defendant. CASE NO. 2:17-CV-1555 SVW-PJW DEFENDANT BOSLEY MEDICAL INSTITUTE, INC.’S NOTICE OF MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, STAY CASE [Filed concurrently with Memorandum of Points and Authorities and [Proposed] Order] Hearing: Date: June 19, 2017 Time: 1:30 p.m. Place: Courtroom 10A Complaint Filed: February 26, 2017 Case 2:17-cv-01555-SVW-PJW Document 19 Filed 04/21/17 Page 1 of 3 Page ID #:83 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490011.1 -1- NOTICE OF MOTION AND MOTION TO DISMISS, OR IN THE A LTERNATIVE, STAY TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 19, 2017, at 1:30 p.m., or as soon thereafter as the matter may be heard in Courtroom 10A of the United States District Court for the Central District of California, located at 350 West First Street, Los Angeles, California 90012, Defendant BOSLEY MEDICAL INSTITUTE, INC., d/b/a BOSLEY, INC. (“Bosley”) will and hereby does move the Court, pursuant to Federal Rules of Civil Procedure (“Rule”) 12(b)(6), for an order dismissing Plaintiff ROBERT CAMPBELL’s (“Plaintiff”) Complaint (“Complaint”) without leave to amend. Plaintiff fails to adequately allege a core element of his Telephone Consumer Protection Act (“TCPA”) claim. Plaintiff’s Complaint does not plausibly allege that the text messages he received were sent by an “automatic telephone dialing system” or “ATDS,” to numbers that are “random[ly] or sequential[ly] . . . generated” - a key element of his TCPA claim under 47 U.S.C. § 227(a)(1). Accordingly, Plaintiff’s Complaint must be dismissed. In the event the Court does not dismiss Plaintiff’s Complaint in its entirety, Bosley moves, in the alternative, to stay this action pending the outcome of an important appellate ruling that could be dispositive of Plaintiff’s claims under the TCPA- the D.C. Circuit review in ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Cir. filed July 10, 2015) of the Federal Communications Commission’s (“FCC”) July 2015 order, In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C.R. 7961 (2015) (hereafter, “Omnibus Order”), regarding the definition of an ATDS under the TCPA. This Motion to Dismiss is made following the conference with Plaintiff’s counsel pursuant to Civil Local Rule 7-3, which occurred on April 12, 2017. Bosley’s Motion to Dismiss is based upon this Notice of Motion, and the Memorandum of Points and Authorities filed concurrently herewith, all pleadings Case 2:17-cv-01555-SVW-PJW Document 19 Filed 04/21/17 Page 2 of 3 Page ID #:84 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490011.1 -2- NOTICE OF MOTION AND MOTION TO DISMISS, OR IN THE A LTERNATIVE, STAY and papers on file with the Court in this action, all judicially noticeable facts, and upon such oral and written evidence as may be present d at the hearing of this Motion. Dated: April 21, 2017 DLA PIPER LLP (US) By:/s/ Monica D. Scott EDWARD D. TOTINO MONICA D. SCOTT Attorneys for Defendant BOSLEY MEDICAL INSTITUTE, INC. d/b/a BOSLEY, INC. Case 2:17-cv-01555-SVW-PJW Document 19 Filed 04/21/17 Page 3 of 3 Page ID #:85 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY EDWARD D. TOTINO (SBN 169237) edward.totino@dlapiper.com MONICA D. SCOTT (SBN 268109) monica.scott@dlapiper.com DLA PIPER LLP (US) 2000 Avenue of the Stars, Suite 400 North Tower Los Angeles, California 90067-4704 Tel: 310.595.3000 Fax: 310.595.3300 Attorneys for Defendants BOSLEY MEDICAL INSTITUTE, INC. d/b/a BOSLEY, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ROBERT CAMPBELL, on behalf of himself and other persons similarly situated, Plaintiff, v. BOSLEY MEDICAL INSTITUTE, INC. D/B/A BOSLEY, INC., Defendant. CASE NO. 2:17-CV-1555 SVW-PJW MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, STAY CASE Hearing: Date: June 19, 2017 Time: 1:30 p.m. Place: Courtroom 10A Complaint Filed: February 26, 2017 Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 1 of 22 Page ID #:86 DLA PIPER LLP (US) LOS A NG EL ES 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 TABLE OF CONTENTS Page -i- I. INTRODUCTION .................................................................................. 1 II. PLAINTIFF’S ALLEGATIONS ..................................................................... 2 III. RELEVANT LEGAL STANDARDS ............................................................. 4 A. Motion to Dismiss Under Rule 12(b)(6) .......................................... 4 B. Motion to Stay ............................................................................... 4 IV. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFF FAILS TO ALLEGE SUFFICIENT FACTS PLAUSIBLY ALLEGING USE OF AN ATDS .......................................... 5 V. IN THE ALTERNATIVE, THE COURT SHOULD STAY THIS ACTION PENDING THE D.C. CIRCUIT’S RULING ON THE FCC’S JULY 2015 OMNIBUS ORDER ................................................. 10 A. The FCC’s July 2015 Omnibus Order ................................................ 11 B. This Action Should be Stayed ....................................................... 13 VI. CONCLUSION ........................................................................................ 16 Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 2 of 22 Page ID #:87 DLA PIPER LLP (US) LOS A NG EL ES 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 TABLE OF AUTHORITIES Page -i- FEDERAL CASES ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Cir. filed July 10, 2015) .......................................... passim Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009) ........................................................ 4, 6 Ass’n of Int’l Auto. Mfrs., Inc. v. Comm’r, Mass. Dep’t of Envtl. Prot., 196 F.3d 302 (1st Cir. 1999) ................................................................... 14 Bais Yaakov of Spring Valley v. Federal Communications Commission, --- F.3d ---, 2017 WL 1192909 (D.C. Cir. Mar. 31, 2017) ................................ 14 Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1990) ..................................................................... 4 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................ 4, 6, 9 Chattanond v. Discover Fin. Servs., Inc., Case No. 2:15-cv-08549-RSWL-JC, ECF No. 34 (C. D. Cal. Feb. 26, 2016) ....................................................................... 14 Chruby v. Global Tel*Link Corp., 119 F. Supp. 3d 395, 397-98 (E.D. Va. 2015) ............................................ 14 CMAX, Inc. v. Hall, 300 F.2d 265 (9th Cir. 1962) ................................................................... 4, 5 Coatney v. Synchrony Bank, Case No. 6:16-cv-389-Orl-22TBS, 2016 WL 4506315 (M.D. Fla. Aug. 2, 2016) .......................................................................... 15 Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010) .................................................................. 13 Derby v. AOL, Inc., No. 5:15-00452-RMW, 2015 WL 5316403 (N.D. Cal. Sept. 11, 2015) ......................................................................................... 10 Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 3 of 22 Page ID #:88 DLA PIPER LLP (US) LOS A NG EL ES 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 TABLE OF AUTHORITIES (continued) Page -ii - Duguid v. Facebook, Inc., No. 15-cv-00985-JST, 2016 WL 1169365 (N.D. Cal. Mar. 24, 2016) ....................................................................................... 5, 8, 9, 10 Errington v. Time Warner Cable, Inc., No. 2:15-cv-02196 ......................................................................................... 14 Fernandez v. Obesity Research Institute, LLC, No. 2:13- cv-975, 2013 WL 4587005 (E.D. Cal. Aug. 28, 013) ........................ 4 Fontes v. Time Warner Cable, Inc., No. CV-14-2060-CAS(CWx), 2015 WL 9272790 (C.D. Cal. Dec. 17, 2015) ........................................................................ 14 Freidman v. Massage Envy Franchising, LCC, No. 3:12-CV-02962-L-RBB, 2013 WL 3026641 (S.D. Cal. June 13, 2013) .................................................................................................. 7 Gensel v. Performant Techs., Inc., No. 13-C-1196, 2015 WL 6158072 (E.D. Wis. Oct. 20, 15) ......................... 15 Glauser v. GroupMe, Inc., No. C 11-2584 PJH, 2015 WL 475111 (N.D. Cal. Feb. 4, 2015) .............. 7, 8, 10 Gragg v. Orange Cab. Co., 995 F. Supp. 2d 1189 (W.D. Wash. 2014) ..................................................... 6, 10 Kolloukian v. Uber Techs., Inc., No. CV 15-2856-PSG-JEM, 2015 WL 9598782 (C.D. Cal. Dec. 14, 2015) ......................................................................................... 14 Luna v. Shac, LLC, No. 14-cv-00607-HRL, 2015 WL 4941781 (N.D. Cal. Aug. 19, 2015) ................................................................................................. 7 Marks v. Crunch San Diego, LLC, 55 F. Supp. 3d 1288, 1291 (S.D. Cal. 2014) .............................................. 5, 8, 11 Rose v. Wells Fargo Advisors, LLC, No. 1:16-CV-562-CAP, 2016 WL 3369283 (N.D. Ga. June 14, 2016) ............. 14 Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 4 of 22 Page ID #:89 DLA PIPER LLP (US) LOS A NG EL ES 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 TABLE OF AUTHORITIES (continued) Page -iii - Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) ................................................................ 5, 8, 12 Small v. GE Capital, Inc., Case No. EDCV 15-2479 JGB, 2016 WL 4502460 (C.D. Cal. June 9, 2016) ................................................................................ 14 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) .................................................................................. 14 Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) .................................................................. 13 Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136 (9th Cir. 2003) ................................................................... 4 Weisberg v. Stripe, Inc., No. 16-cv-00583-JST, 2016 WL 3971296 (N.D Cal. July 25, 2016) ....................................................................................... 6, 8, 9, 10 FEDERAL STATUTES 28 U.S.C. § 2342(1) ...................................................................................... 13 47 U.S.C. § 227 ...................................................................................... passim 47 U.S.C. § 402(a) ........................................................................................ 13 FEDERAL RULES Fed. R. Civ. Proc. 12(b)(6) ............................................................................. 4 OTHER AUTHORITIES In re Rules & Regulations Implementing Tel. Consumer Prot. Act of 1991, Notice of Proposed Rulemaking and Memorandum Opinion and Order, 17 F.C.C.R. 17459 (2002) ............................................. 6 In re Rules & Regulations Implementing Tel. Consumer Prot. Act of 1991, Report and Order, 18 F.C.C.R. 14014 (2003) ........ ........................ 6 Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 5 of 22 Page ID #:90 DLA PIPER LLP (US) LOS A NG EL ES 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 TABLE OF AUTHORITIES (continued) Page -iv- In re Rules & Regulations Implementing Tel. Consumer Prot. Act of 1991, Report and Order, 27 F.C.C.R. 15391 (2012) ........ .......................... 7 In re Rules & Regulations Implementing Tel. Consumer Prot. Act of 1991, 30 F.C.C.R. 7961 (2015) ............................................................... passim Newton’s Telecom Dictionary (27th Ed. 2013) .................................................. 7 Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 6 of 22 Page ID #:91 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY Defendant BOSLEY MEDICAL INSTITUTE, INC. d/b/a BOSLEY, INC. (“Bosley”) hereby submits the following Memorandum of Points and Authorities in support of its Motion to Dismiss Complaint, or in the Alternative Stay Case (“Motion”). I. INTRODUCTION Plaintiff Robert Campbell (“Plaintiff”) fails to adequately allege a core element of his Telephone Consumer Protection Act (“TCPA”) claim. Plaintiff’s Complaint does not plausibly allege that the text messages he received were sent by an “automated telephone dialing system” or “ATDS,” to numbers that are “random[ly] or sequential[ly] . . . generated.” Although Plaintiff alleges in a conclusory fashion that Bosley generally sends text messages “without consent, to cellular telephones while using automatic telephone dialing system having the capacity to store and dial numbers,” he fails to allege facts showing that Bosley used an ATDS to send text messages to him (Complaint, ¶¶ 20-25) or facts supporting his claim that an random or sequential number generator was used - a key element to his TCPA claim. 47 U.S.C. § 227(a)(1). Accordingly, Plaintiff’s Complaint fails and must be dismissed. In the event the Court does not dismiss Plaintiff’s Complaint in its entirety, Bosley moves, in the alternative, to stay this action pending the outcome of an important appellate ruling that could be dispositive of Plaintiff’s claims under the TCPA - the D.C. Circuit review in ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Cir. filed July 10, 2015) of the Federal Communications Commission’s (“FCC”) July 2015 order, In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C.R. 7961 (2015) (hereafter, “Omnibus Order”), regarding the definition of an ATDS under the TCPA. A brief stay is appropriate here so thate parties and this Court can receive clarity on this issue before further time and expense is needlessly incurred. Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 7 of 22 Page ID #:92 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY If Bosley did not use an ATDS to send the text message to Plaintiff, then there can be no TCPA violation. Therefore, whether Bosley used an ATDS as defined by the TCPA and further clarified by the FCC, the agency tasked by Congress to enforce the TCPA, is directly at issue in this case. The FCC’s interpretation of what constitutes an ATDS was (impermissibly) broadened in its Omnibus Order that is currently being reviewed by the D.C. Circuit in ACA International. Because liability in this case hinges on the meaning of this critical term, the present litigation should be stayed so that this Court has the benefit of any ruling issued by the D.C. Circuit. Once the D.C. Circuit rules on whether or not the FCC’s expanded definition of what constitutes an “ATDS” is valid, either Plaintiff’s TCPA claim will be extinguished or the ruling will clarify the scope of the issues and discovery needed in this case. Accordingly, this litigation can proceed efficiently, with neither the parties nor the Court wasting resources on issues that may be mooted by the D.C. Circuit ruling. Further, Plaintiff will not be prejudiced by a stay because any stay would be brief as ACA International is fully briefed and the D.C. Circuit heard oral arguments last October. There is no evidence to suggest that holding this case in abeyance while waiting for the D.C. Circuit’s ruling will be a tactical disadvantage for Plaintiff or alter the status quo significantly either way. Accordingly, if the Court does not dismiss Plaintiff’s Complaint, the Court should issue a stay pending a decision by the D.C. Circuit. II. PLAINTIFF’S ALLEGATIONS Plaintiff alleges that “Bosley sent numerous text messages from telephone number 887-94 to Plaintiff’s telephone number,” including a text message received by Plaintiff on August 12, 2016 stating: “Time is running out! Summer Special - Extra $500 Off your Bosley procedure, if done by 8/31/16. Conditions apply. Call 866-647-4247. To opt out reply STOP.” (Complaint, ¶ 20.) Although Plaintiff further alleges “[a]s of the filing of this lawsuit, Plaintiff still receives unsolicited Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 8 of 22 Page ID #:93 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY text messages from [Bosley] on a regular basis,” he does not allege that he replied “STOP” to halt the text messages as the August 12, 2016 text indicated he could do or that he continued to receive text messages after he requested Bosley to stop. (Complaint, ¶ 21.) Plaintiff also alleges that he “did not provide any form of prior express consent” to receive the text messages, but does not pecifically allege any facts whatsoever supporting the allegation that the text messages he received were sent via an ATDS. (Complaint, ¶ 22.) Plaintiff only alleges that “Defendant was and is aware that the above-described text message calls were being made on a widespread basis.” (Complaint, ¶ 24.) Elsewhere in the Complaint, Plaintiff generally parrots the statutory language and alleges that Bosley “sent (or directed to be sent on its behalf) unsolicited text messages, without consent, to cellular telephones while using automatic telephone dialing equipment having the capacity to store and dial telephone numbers. . . ,” (Complaint, ¶ 11), and that “has the capacity to store, produce, and dial random and sequential numbers, and/or receive and store lists of telephone numbers. . . .” (Complaint, ¶ 15.) Plaintiff does not allege that his telephone number was texted as a reult of random or sequential dialing. Based on these scant allegations, Plaintiff purports t represent a nationwide class of the following individuals: All individuals in the United States whose wireless telephone number Bosley, or someone on Bosley’s behalf, called using an automatic telephone dialing systems or an artificial or prerecorded voice without prior express consent of the called party within the previous four years (the “Class”). (Complaint, ¶ 26.) On behalf of the Class, Plaintiff brings a single cause of action for violation of 47 U.S.C. § 227(b)(1) and seeks statutory damages of $500.00 to $1,500.00 for each negligent or intentional violation of the TCPA. (Complaint, ¶¶ 31-38.) Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 9 of 22 Page ID #:94 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY III. RELEVANT LEGAL STANDARDS A. Motion to Dismiss Under Rule 12(b)(6) Dismissal under Rule 12(b)(6) is proper 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 696, 699 (9th Cir. 1990). A sufficient complaint “demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. The court need not “assume the truth of legal conclusions merely bcause they are cast in the form of factual allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). B. Motion to Stay The power of the Court to stay proceedings is “incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Fernandez v. Obesity Research Institute, LLC, No. 2:13- cv-975, 2013 WL 4587005, at *6 (E.D. Cal. Aug. 28, 2013) (internal quotations omitted). This Court has “broad discretion in deciding whether to issue a stay.” Fernandez, 2013 WL 4587005, at *6. Consistent with such “broad discretion,” a “trial court may . . . find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case.” Id. (internal quotations omitted). In determining whether to grant a stay, the Ninth Circuit instructs district courts to weigh “the competing interests which will be affected by the granting or refusal to grant a stay.” CMAX, Inc. v. Hall, 300 F.2d Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 10 of 22 Page ID #:95 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY 265, 268 (9th Cir. 1962). These competing interests include: (1) the possible damage which may result from the granting of a stay; (2) the hardship or inequity which a party may suffer in being required to go forward; (3) the orderly course of justice measured in terms of simplifying or complicat ng of issues, proof, and questions of law which could be expected to result from a stay. Id. If the Court declines to dismiss Plaintiff’s Complaint as requested herein, the competing interests here, as detailed below, favor a brief stay. IV. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFF FAILS TO ALLEGE SUFFICIENT FACTS PLAUSIBL Y ALLEGING USE OF AN ATDS Plaintiff has not alleged sufficient facts to make it plausible that Bosley utilized an ATDS to send the text messages at issue here. Only text messages sent by an ATDS without the recipi nt’s consent are actionable under the TCPA. “To state a claim for vi lation of the TCPA, a plaintiff must allege that (1) the defendant called a telephone number; (2) using an automatic telephone dialing system; (4) without the recipient’s prior express consent.” Duguid v. Facebook, Inc., No. 15-cv-00985-JST, 2016 WL 1169365, at *4 (N.D. Cal. Mar. 24, 2016). “A text message is a ‘call’ within the meaning of the TCPA.” Id. Therefore, if a text message is not sent via an ATDS, it falls outside the scope of the TCPA all together. Marks v. Crunch San Diego, LLC, 55 F. Supp. 3d 1288, 1291 (S.D. Cal. 2014) (“If Defendant’s system is not an ATDS, [t]he TCPA does not apply”). The TCPA expressly defines an ATDS as “equipment which as 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) (emphasis added). The use of a “random or sequential number generator” is-based on the “clear and unambiguous” statutory language-an essential part of an ATDS. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 11 of 22 Page ID #:96 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY 951 (9th Cir. 2009) (finding statutory definition of ATDS “clear and unambiguous.”). “‘Random number generation’ means r dom sequences of 10 digits, and ‘sequential number generation’ means (for example) (111) 111-1111, (111) 111-1112, and so on.” Gragg v. Orange Cab. Co., 995 F. Supp. 2d 1189, 1193 (W.D. Wash. 2014) (internal quotations and citations omitted). Accordingly, evaluating whether the equipment used by Bosley “constitutes an ATDS, ‘the statute’s clear language mandates that the focus must be on whether the equipment has the capacity to ‘store or produce telephone numbers to be called, using a random or sequential number generator.’” Weisberg v. Stripe, Inc., No. 16-cv- 00583-JST, 2016 WL 3971296, at * 3 (N.D Cal. July 25, 016) citing Satterfield, 569 F.3d at 951. (emphasis in original.)1 To allege adequately that calls were made using an ATDS, a complaint must do more than parrot the statutory language. Plaintiff’s “formulaic recitation of the elements” of his TCPA claim will not do. Twombly, 550 U.S. at 555; Iqbal, 129 S. Ct. at 1949. But that is not even what Plaintiff of ers here - nowhere in his specific allegations (Complaint, ¶¶ 20-25) does Plaintiff ofer any facts whatsoever supporting the allegation that an ATDS was used. Elsewhere in the Complaint, Plaintiff generally alleges, parroting the statutory language of the TCPA, that Bosley “sent (or directed to be sent on its behalf) unsolicited text messages, without consent, to cellular telephones while using automatic telephone dialing equipment having the capacity to store and dial telephone numbers, en masse.” (Complaint, ¶ 11) (emphasis in original). This “allegation” is e sentially meaningless and 1 In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Report and Order, 18 F.C.C.R. 14014, 14092 (2003) (describing, as an example of an ATDS, “telemarketers [who] use[] dialing equipment to create and dial 10-digit telephone numbers arbitrarily.”); see also In Re Rules & Regulations Implementing Tel. Consumer Prot. Act of 1991, Notice of Proposed Rulemaking and Memorandum Opinion and Order, 17 F.C.C.R. 17459, 17465 (2002) (noting that “[a]utodialers permit telemarketers to deliver prerecorded messages to thousands of potential customers every day”). Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 12 of 22 Page ID #:97 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -7- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY substantively does not say anything more that the mere formulaic recitation of the elements of a TCPA claim. Plaintiff alleges no facts that would plausibly satisfy the statutory ATDS requirement. 47 U.S.C. § 227(a)(1); Freidman v. Massage Envy Franchising, LCC, No. 3:12-CV-02962-L-RBB, 2013 WL 3026641, at *2 (S.D. Cal. June 13, 2013). Nor does Plaintiff allege any facts that would plausibly show that Bosley’s equipment has the capacity to “generate numbers and di l them without human intervention,” In Re Rules & Regulations Implementing Tel. Consumer Prot. Act of 1991, Report and Order, 27 F.C.C.R. 15391, 15392, n.5 (2012), which the FCC has ruled is also necessary for equipment to qualify as an ATDS. In other words, if the text messages are sent by a system requiring human intervention, they are not sent by an ATDS. See Glauser v. GroupMe, Inc., No. C 11-2584 PJH, 2015 WL 475111, at *6 (N.D. Cal. Feb. 4, 2015) (finding that administrative text messages sent to plaintiff by a group text messaging application were sent with human intervention where the text messages were sent by the application in direct response to a group member adding plaintiff’s phone number to the group); see also Luna v. Shac, LLC, No. 14-cv-00607-HRL, 2015 WL 4941781, *4 (N.D. Cal. Aug. 19, 2015) (holding that messages were not autodialed, and thus not actionable under the TCPA, because text message platform subscribers could n t initiate their text messages but through their own human intervention “in several stages of the process …, including … clicking ‘send’ on the website to transmit the message to Plaintiff.”). Plaintiff makes the additional allegation that Bosley’s equipment is substantially similar to a predictive dialer (Complaint, ¶ 15) but this makes no sense because predictive dialers do not send text message. N wton’s Telecom Dictionary (27th Ed. 2013), p. 942, defines predictive dialer as: An automated, computerized way (hardware and software) of making many outbound calls without peopl Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 13 of 22 Page ID #:98 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -8- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY dialing the calls and then, once the called person has answered, passing the calls to a live operator. . . . A properly-designed dialer uses complex mathematical algorithms that consider, in real time, the number of available telephone lines, the number of available operators, the probabilities of getting different kinds of call outcome, e.g. no answers, answering machines ad live calls, and the distributions for the times that agents spend talking and wrapping up calls. None of this happens with text messages.2 The Duguid and Stripe cases are illustrative and instructive on the issue of whether a text message has been sent using an ATDS. In Duguid, plaintiff alleged that Facebook repeatedly sent him text messages, via an SMS short code, regarding his Facebook account even though he never provided Facebook with his cell phone number or authorized Facebook to send him text messag . 2016 WL 1169365, at *1. These messages were almost all identical, for example: “Your Facebook 2 Plaintiff likely makes this reference to predictive dialer because, despite the fact that the 9th Circuit has specifically found that the definition of “ATDS” is “clear and unambiguous,” the FCC, in a 2003 ruling purported to expand the definition to predictive dialers. In that FCC ruling the FCC opined that predictive dialers are ATDS’s by expanding the definition of ATDS to cover “ equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers called are randomly r sequentially generated or come from calling lists.” 27 F.C.C.R. at 15392, n.5 (discussing the 2003 FCC ruling). Some courts within the Ninth Circuit have h ld that the FCC’s interpretation is not binding, and that an ATDS must, a the statute requires, include a random or sequential number generator. See Marks, 55 F. Supp. 3d at 1291 (holding that courts are not bound by the FCC’s interpretation because the FCC “does not have the statutory authority to change the TCPA’s definition of an ATDS”). Other courts in the Ninth Circuit have held that, “under the Hobbs Act, [they are] bound by those FCC rulings.” GroupMe, Inc., 2015 WL 475111, at *5. While the Ninth Circuit has not specifically address d the FCC’s predictive dialer ruling, it has ruled that the statutory ATDS definition is “clear and unambiguous.” Satterfield, 569 F.3d at 951. Accordingly, this Court need not defer to the FCC’s expansion of the ATDS definition. See Marks, 55 F. Supp. 3d at 1291. In any event, Plaintiff does not allege that Bosley used a predictive dialer, which was the subject of the 2003 FCC Ruling. Predictive dialers are not used when sending text messages as alleged here. Predictive dialers are used to minimize the time that agents spend waiting on the phone between conversation - this is not needed for text messages. Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 14 of 22 Page ID #:99 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -9- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY account was accessed from an unknown browser at 2:16 pm. Login for more info” and “Your Facebook account was accessed from an unkown browser at 3:34 pm. Login for more info.” Id. at *2. Plaintiff further alleged that he unsuccessfully contacted Facebook several times attempting to stop the text messages, via email as well as responding “off” and “all off” to the text messages. Id. Plaintiff also alleged that the text messages were made via an ATDS because the system used to contact Plaintiff “has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.” Id. at *2. The Duguid court held that plaintiff’s allegations were not only insufficient under Twombly, but they also failed to support the inference that Facebook used an ATDS sufficient to state a valid TCPA claim because they were “inconsistent” with “random or sequential number generation required for an ATDS.” Id at *5. Further, the Duguid court noted that although Facebook’s operation of its text messaging system may be “sloppy” because “messages were sent to individuals who never had a Facebook account, have never shared their phone number with Facebook, and/or who have requested deactivation of the login notifications,” plaintiff “does not suggest that Facebook sends text messages” to “randomly or sequentially generated numbers.” Id. at *5. Similarly, in Stripe, plaintiff received a text message from payment processor Stripe stating “Thanks for saving payment info! This number will be used to verify your identity at Registration and other sites using Stripe Checkout.” 2016 WL 3971296, at *1. Plaintiff alleged that he never contacted nor conducted any business with Stripe “in any fashion,” nor visited Stripe’s online website.” Id. Plaintiff further alleged that Stripe used an ATDS because defendant’s system is “indicative of technology that has the capacity to st re or produce numbers to be called using random or sequential number generator and to dial such numbers” and the text messages at issue were “placed to Plaintiff’s cellular telephone” “via an ATDS.” See First Amended Complaint, Case 3:16-cv-00584-JST, Docket No. 15, Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 15 of 22 Page ID #:100 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -10- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY ¶¶ 18-22. The Stripe court disagreed and dismissed the plaintiff’s complaint in large part because plaintiff’s allegations suggested that “Stripe’s text messages are targeted to specific phone numbers. . . .” Id. at *4. Here, like Duguid and Stripe, the text messages at issue here were allegedly sent via “short code” and were “template-based,” but that does not mean, without more, that they were sent via an ATDS. ee, e.g., Duguid, 2016 WL 1169365, at *1. In other words, automation alone does not mean th t the text messages were sent via an ATDS because ATDS has a very specific statutory definition under the TCPA (requiring equipment with the capacity to store produce telephone numbers to be called using a random or sequential number generator). 47 U.S.C. § 227(a). Plaintiff here fails to allege sufficient facts supporting the allegation that a random or sequential number generator was used. (Complaint, ¶¶ 20-25.) Moreover, the text message itself suggests some amount of personalization and direct targeting in that it specifically references “your procedure” and has a specific date. (Complaint, ¶ 20.) This indicates that an ATDS was not used. See Derby v. AOL, Inc., No. 5:15-00452-RMW, 2015 WL 5316403, *1-2, 5 (N.D. Cal. Sept. 11, 2015) GroupMe, 2015 WL 475111, at *6; Gragg, 995 F. Supp. 2d at 1193-1194. Because Plaintiff’s Complaint fails to allege sufficient facts supporting the use of an ATDS, the Complaint must be dismissed. V. IN THE ALTERNATIVE, THE COURT SHOULD STAY THIS ACTION PENDING THE D.C. CIRCUIT’S RULING ON THE FCC ’S JULY 2015 OMNIBUS ORDER If the Court does not dismiss the Complaint with prejudice, the Court should stay this case. Directly at issue in this case is whether Bosley used an ATDS as defined by the TCPA and further clarified by the FCC. The FCC’s interpretation of what constitutes an ATDS was (impermissibly) broadened in its Omnibus Order that is currently being challenged on review before the D.C. Circuit in ACA International. Because liability in this case hinges on the meaning of this critical Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 16 of 22 Page ID #:101 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -11- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY term, if this case proceeds past the motion to dismiss stage, it should be stayed so that this Court has the benefit of any ruling issued by the D.C. Circuit. Significantly, the 9th Circuit agrees that it is important to wait for the D.C. Circuit ruling as it sua sponte issued a stay in the appeal of Marks v. Crunch San Diego, LLC, USCA Case No. 14-56834, pending the decision in ACA International on this very issue. See USCA Case No. 14-56834 Docket No. 62. Once the D.C. Circuit rules on whether or not the FCC’s expanded definition of what constitutes an “ATDS” is valid, either Plaintiff’s TCPA claim will be extinguished or the ruling will clarify the scope of the issues in this case and the discovery needed. Accordingly, this litigation can proceed efficiently, with neither party nor the Court wasting resources on issues that may be mooted by the D.C. Circuit ruling. Further, Plaintiff will not be prejudiced by a stay because any stay would be brief as ACA International is already fully briefed and argued and therefore a decision is expected shortly. There is no evidence to suggest that holding this case in abeyance while waiting for the D.C. Circuit’s ruling will be a tactical disadvantage for Plaintiff or alter the status quo significantly either way. A. The FCC’s July 2015 Omnibus Order On July 10, 2015, the FCC issued its broad Omnibus Order addressing “21 separate requests for clarification or other action regarding the TCPA or the Commission’s rules or orders.” See Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961 (2015) ¶ 2. Among the issues th FCC addressed in the Omnibus Order is one directly relevant to this case - what equipment constitutes an ATDS under 47 U.S.C. § 227(a)(1). In its Omnibus Order, the FCC, without providing any concrete guidance, appears to have drastically expanded the definition of ATDS under the TCPA. The statutory definition of ATDS provides that, to qualify as an ATDS, equipment must have “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. Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 17 of 22 Page ID #:102 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -12- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY § 227(a)(1)(A). This definition has been deemed “clear and unambiguous” by the Ninth Circuit. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009). However, the FCC in the Omnibus Order broadene this definition from “capacity” to dial random or sequential numbers to “p tential ability” to do so. See Omnibus Order ¶ 19. Commentators have criticized this new interpretation as fueling the most fringe interpretations of the statute, including potentially supporting arguments that any modern dialing technology-even a smart phone-is an ATDS for purposes of the TCPA. See id. ¶ 21 (addressing smart phones as ATDS’s). In addition to promulgating the new “poten ial ability test,” the FCC ruled that equipment need only be able to dial numbers from a prepared list to qualify as an ATDS. The Omnibus Order states that what matters is whether the equipment “has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers”-a definition totally unmoored from the statutory language that appears to supplant the statute’s number-generation requirement. Omnibus Order ¶ 16 (emphasis added). Following the Omnibus Order, various petitions challenging the order were consolidated into a single proceeding before the D.C. Circuit. See ACA Int’l, No. 15-1211. Petitioners and intervenors include nonprofits and industry organizations (such as the U.S. Chamber of Commerce, the National Association of Federal Credit Unions, and the Council of American Survey Research Organizations), as well as individual companies (such as the satellite radio company Sirius XM Radio, Inc., the technology company salesforce.com, and the drugstore company Rite Aid Headquarters Corp.). The petitioners contend that the FCC’s interpretation of ATDS to include equipment that has the “potential capacity” to generate and dial random or sequential numbers is arb trary and capricious, in excess of the FCC’s statutory authority, and otherwise contrary to the Constitution. See Joint Br. for Pet’rs at 24-39, ACA Int’l, No. 15-1211, ECF No. 1585568. The petitioners also contend that the Omnibus Order’s ruling that equipment that has the Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 18 of 22 Page ID #:103 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -13- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY capacity to dial numbers from a list or database must be set aside as contrary to the TCPA’s statutory language. See id. at 32 (“These statutory requirements make clear that an ATDS must be able to do more than dial numbers from a prepared list; it must be able to automatically generate and then dial random or sequential numbers.”) (emphasis in original). Accordingly, if the challenge to the Omnibus Order is successful, only equipment that has the current capacity to store or produce numbers to be called using a random or sequential number generator will constitute an ATDS that could trigger liability under the TCPA, not equipment like that used by Bosley.3 B. This Action Should be Stayed Bosley respectfully requests that, if this action is ot dismissed pursuant to its pending motion to dismiss, this Court stay this action pending the D.C. Circuit’s ruling in ACA International. If the D.C. Circuit overturns the FCC’s broad interpretation of an ATDS, upon which Plaintiff’s SAC is based, it would undermine Plaintiff’s entire action.4 It would therefore be inefficient for this case to proceed before the D.C. Circuit rules on this important issue. 3 The possibility that the Omnibus Order will be vacated is far from speculative. The Omnibus Order was approved by only a narrow three-to-two margin and the dissenting commissioners sounded significant alarm at the Omnibus Order’s deviation from the TCPA’s statutory language. Commissioner Pai, who is now the acting Chair of the FCC, noted that the FCC’s interpr tation of ATDS is directly contrary to the language of the statute. See Omnibus Order, 30 FCC Rcd. at 8075 (“Had Congress wanted to define automatic telephone dialing system more broadly it could have done so by adding tenses and moods, defining it as ‘equipment which has, has had, or could have the capacity.’ But it didn’t.”). Commissioner O’Rielly also criticized the new definition of ATDS as contrary to the statutory language and noted that multiple courts have rejected the interpretation espoused in the Omnibus Order. Id. at 8088. “To put it kindly,” Commissioner Pai wrote, “the Order’s interpretation is a bit of a mess.” Id. at 8075. 4 The D.C. Circuit has the authority to vacate FCC orders such as the Omnibus TCPA Order. See 28 U.S.C. § 2342(1); 47 U.S.C. § 402(a). The D.C. Circuit has exercised its authority to vacate FCC orders that are contrary to statutory terms, like the FCC’s Omnibus TCPA Order’s expansion of the definition of ATDS. See, e.g., Verizon v. FCC, 740 F.3d 623, 628 (D.C. Cir. 2014) (vacating order imposing requirements on broadband providers); Comcast Corp. v. FCC, 600 F.3d 642, 661 Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 19 of 22 Page ID #:104 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -14- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY Courts regularly stay proceedings where, as here, a Court of Appeals is reviewing an agency ruling. See, e.g., Ass’n of Int’l Auto. Mfrs., Inc. v. Comm’r, Mass. Dep’t of Envtl. Prot., 196 F.3d 302, 304 (1st Cir. 1999) (appeal stayed pending D.C. Circuit review of agency ruling); Chruby v. Global Tel*Link Corp., 119 F. Supp. 3d 395, 397-98 (E.D. Va. 2015) (case stayed pending D.C. Circuit review of FCC order). A number of courts, including at several within this district, have also stayed cases pending the D.C. Circuit’s review of the Omnibus Order. E.g., Small v. GE Capital, Inc., Case No. EDCV 15-2479 JGB (DTBx), 2016 WL 4502460, at *3 (C.D. Cal. June 9, 2016) (staying case based on D.C. Circuit challenge); Errington v. Time Warner Cable, Inc., No. 2:15-cv-02196 RSWL (DTB), 2016 WL 2930696, at *3-4 (C.D. Cal. May 18, 2016) (staying case based on D.C. Circuit challenge); Kolloukian v. Uber Techs., Inc., No. CV 15-2856-PSG- JEM, 2015 WL 9598782, at *1 (C.D. Cal. Dec. 14, 2015) (staying case based on D.C. Circuit challenge and Spokeo); Fontes v. Time Warner Cable, Inc., No. CV- 14-2060-CAS(CWx), 2015 WL 9272790, at *5-6 (C.D. Cal. Dec. 17, 2015) (staying case based on D.C. Circuit challenge); Chattanond v. Discover Fin. Servs., Inc., Case No. 2:15-cv-08549-RSWL-JC, ECF No. 34 (C. D. Cal. Feb. 26, 2016) (staying case based on D.C. Circuit challenge and Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)); see also Rose v. Wells Fargo Advisors, LLC, No. 1:16-CV-562-CAP, 2016 WL 3369283, at *2 (N.D. Ga. June 14, 2016) (staying case based on D.C. Circuit challenge because “if the case is not stayed, the defendant may suffer hardship in conducting discovery and trial preparation in light of the uncertain (D.C. Cir. 2010) (vacating order regulating internet s rvice provider’s network management practices). Indeed, last month the D.C. Circuit held that the FCC’s interpretation of another part of the TCPA was unlawful. See Bais Yaakov of Spring Valley v. Federal Communications Commission, --- F.3d ---, 2017 WL 1192909 at *4 (D.C. Cir. Mar. 31, 2017). Since the Omnibus TCPA Order reads “capacity” out of the TCPA’s definition of ATDS and replaces it with the amorphous “more than a theoretical potential” concept, there is a substantial chance that the D.C. Circuit will vacate the Omnibus TCPA Order. Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 20 of 22 Page ID #:105 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -15- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY difference between ‘potential’ capacity and ‘theoretical’ capacity under the definition of an ATDS.”); Coatney v. Synchrony Bank, Case No. 6:16-cv-389-Orl- 22TBS, 2016 WL 4506315, at *2 (M.D. Fla. Aug. 2, 2016) (staying case based on D.C. Circuit challenge); Gensel v. Performant Techs., Inc., No. 13-C-1196, 2015 WL 6158072, at *2 (E.D. Wis. Oct. 20, 2015). Here, there is more than ample justification to reach the same result. Plaintiff alleges that Bosley’s system “has the capacity to store, produce, and dial random and sequential numbers, and/or receive and store lists of telephone numbers. . . .” (Complaint, ¶ 15) (emphasis added). Whether Bosley’s system constitutes an ATDS because it has the current capacity or has the theoretical capacity to generate and dial random or sequential numbers is the issue q arely before the D.C. Circuit. If the D.C. Circuit vacates the Omnibus Order, Plaintiff will no longer be able to use interpretations Congress never intended to support a necessary element of his claim. It would be inefficient for the parties to engage in extensive discovery or any further motion practice, and for this Court to consider those issues, while the validity of the Omnibus Order is under review by the D.C. Circuit. Absent a stay, this Court will be called upon to interpret the Omnibus Order and apply it to the facts of this case. Any determination that this Court makes based on the Omnibus Order concerning Plaintiff’s allegations that Bosley’s system has the theoretical capacity to generate random or sequential numbers, may, at a minimum, be called into question, and likely superseded, if the D.C. Circuit vacates the Omnibus Order or finds it unlawful. As a result, any efforts expnded by the parties and by this Court will have been wasted. For these reasons, this case should be stayed until the D.C. Circuit completes its review of the Omnibus Order. Furthermore, Plaintiff will suffer no harm or prejudice pending a stay because the stay will be brief. All of the briefing i the D.C. Circuit appeal has been completed and oral argument took place in October 2016. See Clerk’s Order, Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 21 of 22 Page ID #:106 DLA PIPER LLP (US) LOS A NG EL ES 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 EAST\141490313.1 -16- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY ACA Int’l, No. 15-1211, ECF No. 1626666. Additionally, a sty will actually benefit Plaintiff because Plaintiff will not have to expend time and money on technical expert analysis and discovery that might need to be done over from scratch once the D.C. Circuit rules. Accordingly, the most efficient route is to issue a st y of this case until the D.C. Circuit rules on the appeal of the Omnibus Order. VI. CONCLUSION For all of the foregoing reasons, Bosley respectfully requests that the Court grant its Motion and dismiss Plaintiff’s Complaint with prejudice. In the alternative, Bosley requests that the Court stay this action until the D.C. Circuit rules on the review of the Omnibus Order. Dated: April 21, 2017 DLA PIPER LLP (US) By:/s/ Monica D. Scott EDWARD D. TOTINO MONICA D. SCOTT Attorneys for Defendant BOSLEY MEDICAL INSTITUTE, INC. d/b/a BOSLEY, INC. Case 2:17-cv-01555-SVW-PJW Document 19-1 Filed 04/21/17 Page 22 of 22 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 EAST\141490566.1 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ROBERT CAMPBELL, on behalf of himself and other persons similarly situated, Plaintiff, v. BOSLEY MEDICAL INSTITUTE, INC. D/B/A BOSLEY, INC., Defendant. CASE NO. 2:17-CV-1555 SVW-PJW [PROPOSED] ORDER GRANTING MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, STAY CASE Hearing: Date: July 19, 2017 Time: 1:30 p.m. Place: Courtroom 10A Complaint Filed: February 26, 2017 Case 2:17-cv-01555-SVW-PJW Document 19-2 Filed 04/21/17 Page 1 of 2 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 EAST\141490566.1 -1- Defendant BOSLEY MEDICAL INSTITUTE, INC. d/b/a BOSLEY, INC.’s Motion to Dismiss Complaint, or in the Alternative Stay Case (“Motion”) came on regularly for hearing on the date herein set forth. Having reviewed and considered the Motion and responsive and supporting papers, and good cause appearing therefor, the Court hereby grants the Motion in its entirety. Plaintiff’s Complaint is hereby dismissed with prejudice. IT IS SO ORDERED. Dated: Hon. Stephen V. Wilson Judge, United States District Court Case 2:17-cv-01555-SVW-PJW Document 19-2 Filed 04/21/17 Page 2 of 2 Page ID #:109