Luna v. Shac, LLC, No. 5:2014cv00607 - Document 68 (N.D. Cal. 2014)

Court Description: ORDER denying 52 Motion to Dismiss the First Amended Complaint. Signed by Magistrate Judge Howard R. Lloyd on 10/17/2014. (hrllc1, COURT STAFF) (Filed on 10/17/2014)

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Luna v. Shac, LLC Doc. 68 1 *E-Filed: October 17, 2014* 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 For the Northern District of California NOT FOR CITATION 8 United States District Court 7 SAN JOSE DIVISION 11 JOHN LUNA, No. C14-00607 HRL Plaintiff, 12 ORDER DENYING DEFENDANTS’ MOTION TO DISMISS THE FIRST AMENDED COMPLAINT v. 13 14 15 SHAC, LLC, dba SAPPHIRE GENTLEMEN’S CLUB; et al., [Re: Docket No. 52] Defendants. ____________________________________/ 16 John Luna sues Shac, LLC, dba Sapphire Gentlemen’s Club, Club Texting, Inc. and 17 CallFire, Inc. for violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. 18 CallFire and Club Texting move to dismiss the claims against CallFire under Federal Rule of Civil 19 Procedure 12(b)(6). Dkt. No. 52. Plaintiff filed an opposition and CallFire filed a reply. Dkt. Nos. 20 57, 60. All parties have expressly consented to having all matters proceed before a magistrate 21 judge. The motion is deemed suitable for determination without oral argument. The October 21, 22 2014 hearing is vacated. Civ. L.R. 7-1(b). Based on the moving and responding papers, the Court 23 denies the motion to dismiss. 24 BACKGROUND 25 26 Plaintiff brings this proposed class action against Shac, Club Texting, 1 and CallFire, alleging violations of the TCPA. 2 In January 2014, Plaintiff received an unsolicited text message on his 27 28 1 Club Texting has been voluntarily dismissed from this action. Dockets.Justia.com 1 cellular telephone from Defendants. FAC ¶ 10. “Defendants Club Texting and Callfire were hired 2 and/or retained by Defendant Shac to send his text-message . . . on Defendant Shac’s behalf.” Id. ¶ 3 10. “Defendants entered [Plaintiff’s] cellular-telephone number into a database and subsequently 4 used equipment capable of storing and/or producing telephone numbers, as well as capable of 5 dialing such numbers, to send the text message en masse to consumers, including Plaintiff.” Id. ¶ 6 13. “Defendant Shac retained the right to control—and, in fact, did control—the content of those 7 messages, as well as to whom Defendants Club Texting and Callfire delivered the messages.” Id. ¶ 8 10. This action was filed in February 2014. The First Amended Complaint (the operative 9 For the Northern District of California United States District Court 10 complaint) asserts one claim against all Defendants: violation of the TCPA. CallFire filed the 11 present motion to dismiss on September 11, 2014. Dkt. No. 52. Plaintiff filed an opposition and 12 CallFire filed a reply. Dkt. Nos. 57, 60. LEGAL STANDARD 13 A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) tests the 14 15 legal sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 16 2001). Dismissal is appropriate where there is no cognizable legal theory or an absence of sufficient 17 facts alleged to support a cognizable legal theory. Id. (citing Balistreri v. Pacifica Police Dep’t, 901 18 F.2d 696, 699 (9th Cir. 1990)). In such a motion, all material allegations in the complaint must be 19 taken as true and construed in the light most favorable to the claimant. Id. However, “[t]hreadbare 20 recitals of the elements of a cause of action, supported by mere conclusory statements, do not 21 suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, “the court is not required to 22 accept legal conclusions cast in the form of factual allegations if those conclusions cannot 23 reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754- 24 55 (9th Cir. 1994). 25 /// 26 /// 27 /// 28 2 Unless otherwise stated, the following facts are from Plaintiff’s First Amended Complaint and assumed to be true for purposes of this motion. See Dkt. No. 44. 2 DISCUSSION 1 2 A. Motion to Dismiss 3 Under the TCPA, it is “unlawful for any person within the United States . . . to make any call 4 (other than a call made for emergency purposes or made with the prior express consent of the called 5 party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any 6 telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). To 7 “make” a call means to be the person or entity that initiates it. See 47 C.F.R. § 64.1200(a)(1)(iii) (it 8 is unlawful to “initiate any telephone call” via an automatic telephone dialing system to a cellular 9 telephone service without the recipient’s prior express consent). Under the TCPA, a text message is For the Northern District of California United States District Court 10 11 12 13 14 15 16 a “call”. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009). If an individual receives more than one call within a twelve month period from a party in violation of the Federal Communications Commission (“FCC”)’s regulations, the TCPA creates a private right of action for damages. 47 U.S.C. § 227(c)(5). CallFire argues: (1) Plaintiff failed to allege that CallFire initiated the call; (2) CallFire could not be the party that initiated the call because of the way its service works; (3) TCPA liability is limited to those who initiate a call, and a common carrier that simply transmits its customers’ 17 messages does not initiate calls; and (4) this case should be referred to the FCC under the primary 18 jurisdiction doctrine. 19 20 21 22 23 24 25 26 27 28 In regards to the first argument, the FAC alleges that CallFire initiated the calls. Plaintiff alleges that “Callfire were hired and/or retained by Defendant Shac to send his text-message, along with the other text messages described below, on Defendant Shac’s behalf.” FAC ¶ 10. In addition, Plaintiff alleges that “Defendants entered [Plaintiff’s] cellular-telephone number into a database and subsequently used equipment capable of storing and/or producing telephone numbers, as well as capable to dialing such numbers, to send the text message en masse to consumers, including Plaintiff.” Id. ¶ 13. The second, third, and fourth arguments are nearly identical to the arguments that CallFire has made in motions to dismiss filed in similar actions brought against CallFire in other districts 3 1 within the Ninth Circuit. See Couser v. Pre-Paid Legal Services, Inc., No. 12-CV-2575 LAB 2 (WVG), Dkt. No. 28 (S.D. Cal. Aug. 16, 2013); Shay v. Callfire, Inc., No. 14-CV-1257 L (WVG), 3 Dkt. No. 4 (S.D. Cal. June 18, 2014); Rinky Dink Inc. v. Elec. Merch. Sys. Inc., No. C13-1347 JCC, 4 Dkt. No. 58 (W.D. Wash. June 26, 2014); Kauffman v. Callfire, Inc., No. 14-CV-1333 H (DHB), 5 Dkt. No. 5 (S.D. Cal. Aug. 15, 2014). 6 The courts in two of these cases analyzed the arguments presented here. 3 This Court is 7 persuaded by the thoughtful and thorough analysis in Couser v. Pre-Paid Legal Services, Inc., 994 8 F. Supp. 2d 1100 (S.D. Cal. 2014). First, Couser rejected CallFire’s argument that it could not be 9 the party that initiated the call because of the way its service works, reasoning that the relationship For the Northern District of California United States District Court 10 11 12 13 14 15 between CallFire and its customers is too fact-intensive to resolve at the motion to dismiss phase. Id. at 1103. Second, Couser rejected CallFire’s argument that it is a common carrier that cannot be found liable under the TCPA. Id. at 1103-05. The court reasoned that the legislative history CallFire relied on was inconclusive, the FCC rulings addressed a different TCPA rule than the one at issue there, and there had not been sufficient discovery conducted to conclude that CallFire is a common carrier. Id. Third, Couser rejected CallFire’s argument that the case should be referred to 16 the FCC under the primary jurisdiction doctrine, also on the basis that there had not been sufficient 17 discovery conducted to conclude that CallFire is a common carrier. Id. at 1105-06. This Court 18 19 20 21 finds the analysis in Couser convincing, and follows suit. See also Rinky Dink Inc. v. Elec. Merch. Sys. Inc., No. C13-1347 JCC, Dkt. No. 78 (W.D. Wash. Sept. 30, 2014) (adopting the court’s reasoning in Couser). B. Requests for Judicial Notice 22 In support of its motion, CallFire requests that the Court take judicial notice of: (1) the FCC 23 24 Form 499 Filer Database Listing for CallFire; (2) CallFire’s Terms of Service; and (3) portions of 25 3 26 27 28 The plaintiff in Shay voluntarily dismissed the action against CallFire before the court ruled on the motion to dismiss. Shay v. Callfire, Inc., No. 14-CV-1257 L (WVG), Dkt. No. 6 (S.D. Cal. June 27, 2014). The court in Kauffman granted the motion to dismiss on the basis that the plaintiff failed to allege that CallFire initiated the call, and declined to address the arguments that CallFire could not be the party that initiated the call because of the way its service works, that CallFire is a common carrier that could not be found liable under the TCPA, and that the case should be referred to the FCC under the primary jurisdiction doctrine. 4 1 the declaration of Shahriyar Neman. Dkt. No. 52-4. Plaintiff opposes CallFire’s request as to the 2 second and third documents. See Opp. at 5-6. CallFire’s request is granted as to the first document, 3 and denied as to the second and third documents. See Fed. R. Evid. 201(b). 4 Plaintiff requests that the Court take judicial notice of various court documents filed in 5 Couser, Shay, Rinky Dink, and Kauffman. Dkt. No. 58. Plaintiff’s request is granted for the 6 purposes of noticing the existence of the lawsuits and the claims made therein. See In re Bare 7 Escentuals, Inc. Sec. Litig., 745 F. Supp. 2d 1052, 1067 (N.D. Cal. 2010). 8 CallFire’s request for judicial notice filed in support of its reply, Dkt. No. 61, is denied. See 9 Ojo v. Farmers Grp., Inc., 565 F.3d 1175, 1185 n.13 (9th Cir. 2009) (“[I]t is generally improper for For the Northern District of California United States District Court 10 11 the moving party to introduce new facts or different legal arguments in the reply brief beyond those that were presented in the moving papers.” (internal quotation marks and alterations omitted)). 12 CONCLUSION 13 14 15 16 17 18 For the reasons stated above, Defendants’ Motion to Dismiss the claims against CallFire is denied. IT IS SO ORDERED. Dated: October 17, 2014 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 5 1 C14-00607 HRL Notice will be electronically mailed to: 2 Abigail Ameri Zelenski 3 Christine Marie Pham 4 David Zelenski 5 Imran A. Khaliq imran.khaliq@arentfox.com, mia.gimenez@arentfox.com, telecomlit@arentfox.com Abigail@jlglawyers.com christine@jlglawyers.com david@jlglawyers.com 6 Mark Ernest Ferrario ferrariom@gtlaw.com, lvlitdock@gtlaw.com, rosehilla@gtlaw.com 7 Michael Brian Hazzard Michael.Hazzard@arentfox.com 8 Michael Joe Jaurigue michael@jauriguelaw.com 9 Stephanie Danielle Ahmad ahmads@gtlaw.com, SFOLitDock@gtlaw.com, tasistaj@gtlaw.com For the Northern District of California United States District Court 10 11 12 Tyler Ryan Andrews andrewst@gtlaw.com, bonnerc@gtlaw.com, heilichj@gtlaw.com, lvlitdock@gtlaw.com Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court’s CM/ECF program. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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