Wilbor v. GG Homes, Inc., No. 3:2021cv00226 - Document 22 (S.D. Cal. 2022)
Court Description: ORDER Granting Defendant's Motion To Dismiss Plaintiff's First Amended Complaint [ECF No. 8 ]. Signed by Judge Linda Lopez on 3/22/2022. (All non-registered users served via U.S. Mail Service)(ddf) .
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Wilbor v. GG Homes, Inc. Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GLENN WILBOR, Case No.: 21cv226-LL-BGS Plaintiff, 12 13 v. 14 GG HOMES, INC., ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Defendant. 15 [ECF No. 8] 16 17 18 Defendant GG Homes, Inc. (“GG Homes”) moves to dismiss with prejudice 19 Plaintiff’s First Amended Complaint (“FAC”) under Federal Rules of Civil Procedure 20 12(b)(1), 12(b)(6), and 12(f). ECF No 8. Plaintiff, proceeding pro se, filed a response in 21 opposition, [ECF No. 11], and GG Homes filed a reply, [ECF No. 12]. The motion is 22 suitable for submission without the need for oral argument. For the below reasons, the 23 motion is GRANTED. 24 I. 25 In his FAC, Plaintiff alleges GG Homes, using an automatic telephone dialing 26 system (“ATDS”), solicited him without his consent by sending the following spam text 27 message to his personal cell phone ending in 0541: 28 BACKGROUND Hi Glenn, I’m an investor and contractor in San Diego. Do you have any off1 21cv226-LL-BGS Dockets.Justia.com 1 2 market deals or packet listings that might make a good “fix and flip” project? We’re buying aggressively in 2021 and you can double end or even triple end the deal! - Eric @ GG Homes. 3 4 ECF No. 6 ¶ 10. Plaintiff alleges the text message was sent on February 13, 2020, 5 September 29, 2020, October 10, 2020, and January 31, 2021. Id. ¶ 14. Plaintiff alleges he 6 put the 0541 number on the National Do-Not-Call Registry (“the DNC Registry”) more 7 than 31 days prior to the first text. Id. ¶ 20. 8 In his FAC, Plaintiff brings claims for: (1) negligent violation of the Telephone 9 Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b); (2) knowing and/or willful 10 violation of the TCPA, 47 U.S.C. § 227(b); (3) negligent violation of the TCPA, 47 U.S.C. 11 § 227(c)(5); and (4) knowing and/or willful violation of the TCPA, 47 U.S.C. § 227(c)(5). 12 Plaintiff seeks statutory and treble damages, and injunctive relief. On January 5, 2022, after 13 GG Homes filed the instant motion, the case was transferred to the below signed district 14 judge. ECF No. 20. 15 16 II. LEGAL STANDARDS A. Rule 12(b)(1) 17 Under Federal Rule of Civil Procedure 12(b)(1), a defendant may seek to dismiss a 18 complaint for lack of jurisdiction over the subject matter. A federal court is one of limited 19 jurisdiction. See Gould v. Mut. Life Ins. Co. v. New York, 790 F.2d 769, 774 (9th Cir. 1986). 20 As such, it cannot reach the merits of any dispute until it confirms its own subject matter 21 jurisdiction. See Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 95 (1998). When 22 considering a Rule 12(b)(1) motion to dismiss, the district court is free to hear evidence 23 regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes 24 where necessary. See Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). In 25 such circumstances, “[n]o presumptive truthfulness attaches to plaintiff’s allegations, and 26 the existence of disputed facts will not preclude the trial court from evaluating for itself the 27 merits of jurisdictional claims.” Id. (quoting Thornhill Publishing Co. v. Gen. Tel. & Elec. 28 Corp., 594 F.2d 730, 733 (9th Cir. 1979)). Plaintiff, as the party seeking to invoke 2 21cv226-LL-BGS 1 jurisdiction, has the burden of establishing that jurisdiction exists. See Kokkonen v. 2 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The court will presume a lack of 3 jurisdiction until the pleader proves otherwise. See id. 4 B. Rule 12(b)(6) 5 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings 6 and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state 7 a claim upon which relief may be granted. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 8 2001). The court may dismiss a complaint as a matter of law for: “(1) lack of cognizable 9 legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental 10 Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). 11 However, a complaint survives a motion to dismiss if it contains “enough facts to state a 12 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 13 (2007). 14 Notwithstanding this deference, the reviewing court need not accept legal 15 conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for the 16 court to assume “the [plaintiff] can prove facts [he or she] has not alleged[.]” Associated 17 Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 18 (1983). On the other hand, “[w]hen there are well-pleaded factual allegations, a court 19 should assume their veracity and then determine whether they plausibly give rise to an 20 entitlement to relief.” Iqbal, 556 U.S. at 679. The court only reviews the contents of the 21 complaint, accepting all factual allegations as true, and drawing all reasonable inferences 22 in favor of the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). 23 24 25 III. DISCUSSION A. Standing 1. Injury in Fact 26 GG Homes first argues the FAC should be dismissed under Rule 12(b)(1) because 27 Plaintiff cannot satisfy the injury in fact requirement for standing because “he has no 28 privacy interest in a business number he publicizes online to solicit business inquiries.” 3 21cv226-LL-BGS 1 ECF No. 8-1 at 13. In order to have standing to bring a claim in federal court “[t]he plaintiff 2 must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct 3 of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” 4 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citations omitted). “The plaintiff, as 5 the party invoking federal jurisdiction, bears the burden of establishing these elements.” 6 Id. (citation omitted). The injury in fact must be concrete and particularized, actual or 7 imminent, and not conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 8 555, 560 (1992). An injury is particularized when it “affect[s] the plaintiff in a personal 9 and individual way.” Id. at 560 n.1. A concrete injury may be tangible or intangible. 10 Spokeo, 136 S. Ct. at 1549. “In determining whether an intangible harm constitutes injury 11 in fact,” Congress’ judgment is both “instructive and important” as it “may elevate to the 12 status of legally cognizable injuries concrete, de facto injuries that were previously 13 inadequate in law.” Id. 14 GG Homes asks the court to consider various documents mostly consisting of 15 internet advertisements suggesting, in direct contrast to the Plaintiff’s allegations, that 16 Plaintiff invited the text messages.1 ECF No. 8-1 at 14 n.3. GG Homes recently made the 17 same request in a similar case brought by a different pro se plaintiff. See Gross v. GG 18 Homes, Inc., No. 21-cv-00271-DMS-BGS, 2021 WL 2863623, at *4 (S.D. Cal. July 8, 19 2021), on reconsideration, 2021 WL 4804464 (S.D. Cal. Oct. 14, 2021). In Gross,2 Judge 20 21 22 1 23 To the extent GG Homes requests that the Court take judicial notice of these documents, [see ECF No. 8-1 at 13 n.3], for the reasons stated herein, the request is DENIED. 24 2 25 26 27 28 Gross was decided on July 8, 2021. ECF No. 14. On July 9, 2021, Plaintiff requested that the Court take judicial notice of Judge Sabraw’s decision denying GG Home’s motion to dismiss. Id. On October 14, 2021, however, Judge Sabraw, upon reconsideration, granted GG Home’s motion to dismiss under Rule 12(b)(6). See Gross, 2021 WL 4804464. Accordingly, Plaintiff’s motion to take judicial notice of Gross [ECF No 14] is GRANTED. See Wilson v. Rater8, LLC, No. 20-cv-1515-DMS-LL, 2021 WL 4865930, at *3 n.4 (S.D. Cal. Oct. 18, 2021) (relying on the decision on reconsideration in Gross). 4 21cv226-LL-BGS 1 Sabraw declined to recognize “extrinsic evidence of [p]laintiff's business practices and 2 purported public listing of her phone number online to demonstrate that she consented to 3 [GG Homes’] calls and texts.” Id. As was the case in Gross, GG Homes mounts a factual 4 attack on the FAC by asking the Court to consider similar extrinsic evidence that Plaintiff 5 consented to receiving the text messages. Here, Plaintiff’s consent is an element of his 6 TCPA claim and is also the basis of GG Homes’ jurisdictional challenge. As such, this 7 factual issue is too intertwined with GG Homes’ jurisdictional argument to be resolved at 8 the motion to dismiss stage. Id. (citing Safe Air for Everyone v. Meyer, 373 F.3d 1035, 9 1041 (9th Cir. 2004) and Aleisa v. Square, Inc., 493 F. Supp. 3d 806, 813 (N.D. Cal. 2020)). 10 GG Homes also argues that Plaintiff lacks standing to bring two of his claims 11 (counts III and IV) that are based on his alleged registration of the 0541 number with the 12 DNC registry because “his number was not registered on the DNC Registry at the time the 13 texts were allegedly sent, contrary to his pled allegations.” ECF No. 8-1 at 13. Again, 14 however, GG Homes relies on extraneous evidence to support this argument that would 15 require the Court to make factual determinations that are more appropriately resolved on 16 summary judgment. Accordingly, GG Homes’ motion to dismiss on the grounds that 17 Plaintiff did not suffer an injury in fact because he consented to receiving calls and texts, 18 and did not timely register his cell phone number with the DNC Registry, is DENIED. 3 19 20 21 22 23 24 25 26 27 28 3 In his response in opposition, which was filed over a week late, Plaintiff does not directly or substantively address any of GG Homes’ arguments. See S.D. Cal. CivLR 7.1.f.3.c (“If an opposing party fails to [timely] file the papers . . . , that failure may constitute a consent to the granting of a motion or other request for ruling by the Court.”) Instead, Plaintiff’s argument merely incorporates the allegations in his FAC. ECF No. 11 (“The FAC is . . . . incorporated by this reference as if fully set forth herein, including all the case law stated. Why repeat it again here.”). While GG Homes argues that this should be interpreted as a concession, [see ECF No. 12 at 6-7], pro se plaintiffs “must be held to less stringent standards” and their filings must be “liberally construed,” see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). Accordingly, Plaintiff’s failure to timely file an opposition to, or substantively address, GG Homes’ arguments is not sufficient grounds, by itself, to dismiss the case. 5 21cv226-LL-BGS 1 2. Traceability and Redressability 2 GG Homes also argues that Plaintiff’s alleged harm does not meet the traceability or 3 redressability requirements for standing. ECF No. 8-1 at 21. To confer constitutional 4 standing, an injury must also be “fairly traceable to the challenged action of the defendant,” 5 and it must be “likely . . . . that the injury will be redressed by a favorable decision.” Lujan, 6 504 U.S. at 560–61. GG Homes argues: 7 8 9 10 11 12 13 Plaintiff fails to plead any plausible non-conclusory facts showing, inter alia, (i) his purported “harm” is traceable to GG’s use of an ATDS to send the texts at issue or a DNC Registry violation by GG (and, instead, he pleads facts to the contrary); (ii) any conduct specifically attributable to GG (and, instead, he conflates the conduct of GG with multiple non-parties); (iii) any basis for concluding the parties who texted him were actually GG’s “agents” or “employees”; (iv) there is any relationship between GG and any third party involved; or (v) what control, if any, GG had over those third parties. ECF No. 21, 22. 14 This is the same argument GG Homes made before Judge Sabraw in Gross. See 21- 15 cv-271, ECF No. 6-1 at 20 (Apr. 12, 2021). As was the case in Gross, the Plaintiff here 16 alleges, albeit inconsistently and without any additional factual support, that GG Homes 17 called his phone, that his phone was listed in the DNC Registry, and that GG Homes used 18 an ATDS without his consent. At this stage in the litigation, and with respect to GG Homes’ 19 standing argument, these allegations are sufficient, for now, to establish traceability and 20 redressability. See Gross, 2021 WL 2863623, at *4 (citing Romero v. Dep’t Stores Nat’l 21 Bank, 725 F. App’x 537, 539 (9th Cir. 2018)). Accordingly, GG Homes’ motion to dismiss 22 on the grounds that Plaintiff’s alleged injury in fact is not traceable or redressable is 23 DENIED. 24 B. Statutory Standing 25 GG Homes also argues the FAC should be dismissed under Rule 12(b)(6) for lack 26 of statutory standing. ECF No. 8-1 at 22-25. Under the doctrine of statutory standing, a 27 “statutory cause of action extends only to plaintiffs whose interests fall within the zone of 28 interests protected by the law invoked.” Lexmark Int’l, Inc. v. Static Control Components, 6 21cv226-LL-BGS 1 Inc., 572 U.S. 118, 129 (2014) (citation and quotation marks omitted). “Whether a plaintiff 2 comes within ‘the zone of interests’ is an issue that requires [courts] to determine, using 3 traditional tools of statutory interpretation, whether a legislatively conferred cause of action 4 encompasses a particular plaintiff’s claim.” Id. at 127. In applying this zone of interest test, 5 courts “do not ask whether . . . . Congress should have authorized [plaintiff’s] suit, but 6 whether Congress in fact did so.” Id. at 128. The test “is not meant to be especially 7 demanding; in particular, there need be no indication of congressional purpose to benefit 8 the would-be plaintiff.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399–400 (1987). 9 GG Homes argues that Plaintiff lacks statutory standing because the TCPA does not 10 prohibit solicited business communications. ECF No. 8-1 at 22–25. GG Homes argues 11 “Plaintiff got exactly what he wanted. He advertised his cell number as the contact number 12 for his real estate businesses. Predictably, he allegedly received text messages that, on their 13 face, are from a prospective real estate investor asking if Plaintiff, a licensed real estate 14 broker, has any unlisted properties for sale.” Id. at 24. 15 As was the case in Gross, Plaintiff’s allegation that GG Homes texted his phone 16 using an ATDS without his consent falls within the zone of interests protected by the 17 TCPA’s ATDS provisions because: (1) TCPA does not distinguish between telemarketing 18 calls and calls to businesses, or between personal cellular telephones or cellular telephones 19 used for business; (2) the statute provides that “any person or entity” may bring a cause of 20 action for a violation, 47 U.S.C. § 227(b)(3); and (3) in Facebook, Inc. v. Duguid, 141 S. 21 Ct. 1163, 1167 (2021), the Court stated that Congress passed the TCPA to address the 22 proliferation of intrusive calls to consumers “and businesses” from telemarketers. See 23 Gross, 2021 WL 2863623, at *5. 24 Additionally, Plaintiff’s allegations that GG Homes texted his phone despite being 25 on the DNC Registry falls within the TCPA’s zone of interests protected by the TCPA’s 26 DNC Registry provision because: (1) the FCC regulation prohibiting “any telephone 27 solicitation to . . . . a residential telephone subscriber who has registered his or her telephone 28 number on the national do-not-call registry,” 47 C.F.R. § 64.1200(c)(2), applies “to any 7 21cv226-LL-BGS 1 person or entity making telephone solicitations or telemarketing calls to wireless telephone 2 numbers,” id. § 64.1200(e); (2) the regulation defines “telephone solicitation” as “the 3 initiation of a telephone call or message for the purpose of encouraging the purchase or 4 rental of, or investment in, property, goods, or services, which is transmitted to any 5 person.” id. § 64.1200(f)(15); and (3) this definition does not distinguish between 6 solicitation to businesses and to consumers. 4 Accordingly, GG Homes’ motion to dismiss 7 on the grounds that Plaintiff lacks statutory standing is DENIED. 8 C. Direct or Vicarious Liability 9 GG Homes also argues that Plaintiff’s TCPA claims should be dismissed because 10 they lack sufficient factual allegations supporting an inference that GG Homes, and not 11 some other party or non-party, actually made or initiated the phone calls or texts at issue. 12 ECF No. 8-1 at 26. To be liable under the TCPA, a defendant must “make” or “initiate” 13 the call or text at issue. 47 U.S.C. §§ 227(b)(1)(A)(iii), 227(c)(5); 47 C.F.R. §§ 14 64.1200(a)(1)(iii), 64.1200(c)(2). Here, Plaintiff alleges that “GG Homes ‘physically’ sent 15 the text messages and placed the unauthorized calls at issue in this lawsuit.” FAC ¶ 17. 16 Plaintiff also alleges that “President and CEO Paul Eric Green both told his GG Homes 17 employee orally and Paul Green sent an email to his GG Homes employee in writing, thus 18 directing, commanding and ordering them to call and text Plaintiff to see if he would buy 19 Defendant’s services.” Id. These allegations, when liberally construed and viewed under 20 the less stringent standard for pro plaintiffs, are sufficient to support Plaintiff’s claim that 21 GG Homes made or initiated the texts at issue. Accordingly, GG Homes’ motion to dismiss 22 on the grounds that Plaintiff failed to sufficiently plead direct or vicarious liability is 23 DENIED. 24 25 26 27 28 4 GG Homes’ argument that Plaintiff lacks statutory standing is, again, dependent on its argument that that Plaintiff’s cell phone was used for business purposes and that he solicited the text messages, which would require to the Court to consider extrinsic evidence. See Ngheim v. Dick’s Sporting Goods, Inc., 222 F. Supp. 3d 805, 812–13 (C.D. Cal. 2016). 8 21cv226-LL-BGS 1 D. ATDS 2 GG Homes also argues that Plaintiff’s claims for negligent and knowing and/or 3 willful violations of the TCPA under 47 U.S.C. § 227(b) should be dismissed under Rule 4 12(b)(6) because he fails to sufficiently allege the use of an ATDS. ECF No. 8-1 at 29–31. 5 To state a claim under 47 U.S.C. § 227(b)(1)(a), a plaintiff must plausibly allege that the 6 defendant called a cell phone using an ATDS without the recipient’s prior express consent. 7 Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012). To qualify 8 as an ATDS, “a device must have the capacity either to store a telephone number using a 9 random or sequential generator or to produce a telephone number using a random or 10 sequential number generator.” Duguid, 141 S. Ct. at 1167. 11 As noted above, Plaintiff concedes the text messages at issue were addressed to him 12 by name. As multiple district courts have found, “[t]he targeted nature of the underlying 13 texts contradicts the notion that Plaintiff’s telephone number could have been produced 14 through a random or sequential number generator.” See Gross, 2021 WL 4804464, at *3 15 (listing cases). In his FAC, Plaintiff alleges “Defendant used either a Vicidial, or a 16 FiveNine dialer or an ATDS dialer that has the ability to change text within each 17 messages.” FAC ¶ 7. Plaintiff explains: 18 19 20 21 Upon information and belief, GG Homes has duped a local Title Company into selling it lists of home owners with phone numbers within specified geographical neighborhoods within San Diego that they wish to target. Then they upload numbers into their ATDS “Vicidialer” and blast out spam text messages to entire neighborhoods. 22 Id. ¶ 35. Plaintiff further alleges that he “even has one of these devices that allows him to 23 do exactly what Defendant has done.” Id. ¶ 7. 24 These allegations, upon which Plaintiff relies in his opposition, essentially admit that 25 the device allegedly used by GG Homes does not randomly or sequentially generate phone 26 numbers because it requires numbers to be targeted from a particular source then uploaded 27 28 9 21cv226-LL-BGS 1 from a list.5 See Pascal v. Concentra, Inc., Case No. 19-cv-02559-JCS, 2021 WL 5906055, 2 at *8 (N.D. Cal. Dec. 14, 2021) (finding, as a matter of law, that defendant did not use an 3 ATDS because plaintiff did not dispute that the text messages were merely stored, not 4 produced, using a random or sequential number generator). Plaintiff’s allegation that he 5 was contacted by a live person named Eric also supports a finding that his number was 6 specifically targeted and not randomly or sequentially generated. See id. ¶ 34. Based on 7 Plaintiff’s allegations, it is not plausible that GG Homes sent the texts using an ATDS. 8 Accordingly, GG Homes’ motion to dismiss Plaintiff’s claims for negligent and knowing 9 and/or willful violations of the TCPA under 47 U.S.C. § 227(b) (counts I and II) is 10 GRANTED. 11 E. Telephone Solicitation 12 GG Homes also argues that Plaintiff’s claims for negligent and knowing and/or 13 willful violations of the TCPA under 47 U.S.C. § 227(c)(5) should be dismissed under Rule 14 12(b)(6) because Plaintiff does not sufficiently allege a telephone solicitation. ECF No. 81 15 at 34. TCPA regulations prohibit “telephone solicitation” to any “residential telephone 16 subscriber who has registered his or her telephone number on the national do-not-call 17 registry of persons.” 47 C.F.R. § 64.1200(c)(2). A “telephone solicitation” is defined as 18 “the initiation of a telephone call or message for the purpose of encouraging the purchase 19 or rental of, or investment in, property, goods, or services.” 47 C.F.R. § 64.1200(f)(14). 20 GG Homes argues “the alleged texts sought to hire him as a realtor in connection with a 21 potential real estate purchase” and “[o]ffering to hire someone is not encouraging him to 22 purchase, rent, or invest in property, goods, or services.” ECF No. 8-1 at 34–35. 23 The texts at issue are inquiries as to whether Plaintiff had any “off-market deals or 24 packet listings that might make a good ‘fix and flip’ project” because the sender was 25 26 27 28 5 In Gross, the plaintiff similarly alleged the device GG Homes used “has the capability to insert a new name for each person [to whom] it sends spam text messages” and “the capacity to store numbers and dial them automatically.” See 2021 WL 2863623, at *7. 10 21cv226-LL-BGS 1 “buying aggressively.” ECF No. 6 ¶ 10. These are offers for the purpose of procuring 2 property, not “encouraging the purchase” of property. See Gross, 2021 WL 2863623, at *8 3 (relying on Freyja v. Dun & Bradstreet, Inc., No. CV 14-7831 DSF (MRWx), 2015 WL 4 6163590, at *2 (C.D. Cal. Oct. 14, 2015)). Based on Plaintiff’s allegations, it is not 5 plausible the text messages allegedly received by Plaintiff constituted a “telephone 6 solicitation” under the TCPA. Accordingly, GG Homes’ motion to dismiss Plaintiff’s 7 claims for negligent and knowing and/or willful violations of the TCPA under 47 U.S.C. § 8 227(c) (counts III and IV) is GRANTED.6 9 IV. CONCLUSION 10 GG Homes’ motion to dismiss Plaintiff’s claims under Rule 12(b)(1) and based on 11 of a lack of direct or vicarious liability, is DENIED. GG Homes’ motion to dismiss 12 Plaintiff’s claims under Rule 12(b)(6) is GRANTED. Plaintiff’s motion to strike under 13 Rule 12(f) is DENIED as moot. With respect to leave to amend, a “party cannot amend 14 pleadings to ‘directly contradic[t] an earlier assertion made in the same proceeding.’” Airs 15 Aromatics, LLC v. Opinion Victoria’s Secret Store Brand Mgmt., Inc., 744 F.3d 595, 600 16 (9th Cir. 2014) (citation omitted); see also Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th 17 Cir. 2007) (dismissal of a pro se complaint with prejudice is proper where it is “absolutely 18 clear” that the deficiencies of the complaint could not be cured by amendment). Here, it is 19 absolutely clear that Plaintiff cannot cure the deficiencies in the FAC without contradicting 20 21 22 23 24 25 26 27 28 6 GG Homes also argues that Plaintiff’s claims under § 227(c) fail because (1) “Plaintiff’s phone number ending in 0541 was not registered at the time he allegedly received text messages to that number,” and (2) “Plaintiff does not allege any specific non-conclusory facts supporting an inference that GG ‘physically’ sent the texts or that GG was in a common law agency relationship with a third party that did.” ECF No. 8-1 at 34. However, these arguments have already been rejected above, and were rejected in Gross. GG Homes also argues that “Section 227(c) applies only to subscribers of ‘residential’ phones, not all cell phones or business numbers.” Id. at 35. Because this argument relies on extrinsic evidence the Court has already declined to consider on a motion to dismiss, it does not serve as an additional reason to dismiss Plaintiff’s claims at this stage. 11 21cv226-LL-BGS 1 his current allegations. Therefore, his motion for leave to file a second amended complaint 2 is DENIED as futile. See Brickman v. Facebook, Inc., No. 16-cv-00751-WHO, 2021 WL 3 4198512, at *4 (N.D. Cal. Sept. 15, 2021) (denying leave to amend after finding failure to 4 sufficiently plead use of ATDS). As a result, all of Plaintiff’s claims in his FAC are 5 DISMISSED without leave to amend. The Clerk of Court is directed to close the case. 6 7 IT IS SO ORDERED Dated: March 22, 2022 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 21cv226-LL-BGS
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