Nicole Zilveti v. Global Marketing Research Services, Inc, No. 3:2015cv02494 - Document 45 (N.D. Cal. 2016)
Court Description: ORDER DENYING DEFENDANT'S MOTION TO DISMISS, TRANSFER AND TO STRIKE; VACATING HEARING. Signed by Judge Maxine M. Chesney on February 16, 2016. (mmclc1, COURT STAFF) (Filed on 2/16/2016)
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Nicole Zilveti v. Global Marketing Research Services, Inc Doc. 45 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 For the Northern District of California United States District Court 10 11 NICOLE ZILVETI, No. C-15-2494 MMC ORDER DENYING DEFENDANT’S MOTION TO DISMISS, TRANSFER AND TO STRIKE; VACATING HEARING Plaintiff, 12 v. 13 14 GLOBAL MARKETING RESEARCH SERVICES, INC., Defendant. 15 / 16 17 Before the Court is defendant Global Marketing Research Services, Inc.’s (“GMRS”) 18 “Motion to Dismiss or Transfer,” filed July 22, 2015, as supplemented September 2, 2015. 19 Plaintiff Nicole Zilveti (“Zilveti”) has filed opposition, as has intervenor United States of 20 America. GMRS has not filed a reply. Having read and considered the papers filed in 21 support of and in opposition to the motion, the Court rules as follows.1 BACKGROUND 22 23 Zilveti alleges GMRS “is in the business of conducting telephone surveys by making 24 autodialed calls” (see Compl. ¶ 1), and, in particular, that GMRS has “utilized an automatic 25 telephone system” to do so (see Compl. ¶ 10). Zilveti also alleges that, over the course of 26 a week in August 2014, she received “six unsolicited phone calls” from GMRS on her cell 27 1 28 By order filed January 25, 2016, the Court took the matter under submission. Thereafter, on the same date, GMRS filed a Notice of Recent Court Order, which document the Court has considered. Dockets.Justia.com 1 phone. (See Compl. ¶¶ 21, 28.) Zilveti further alleges she initially tried to answer the calls, 2 but “no one would come onto the line,” and when she “finally called the number back,” she 3 “heard [a] pre-recorded voicemail which identified that the calls were being made by a 4 survey company.” (See Compl. ¶ 20.) According to Zilveti, GMRS made such “automated 5 telephone calls” without having obtained her “prior express oral or written consent to 6 receive such calls.” (See Compl. ¶ 28.) Based on such allegations, Zilveti asserts GMRS 7 has violated the Telephone Consumer Protection Act (“TCPA”), specifically, the provision 8 set forth in 47 U.S.C. § 227(b)(1)(A)(iii). Zilveti, who alleges she is a citizen of and resident 9 in California (see Compl. ¶¶ 5, 9), seeks to proceed on her own behalf and on behalf of “all 10 individuals in California” who received the same type of unsolicited calls from GMRS. (See 11 Compl. ¶ 22.) DISCUSSION 12 13 By its motion, GMRS seeks an order transferring the case to the Middle District of 14 Florida or, alternatively, an order dismissing the complaint and/or striking certain allegations 15 therefrom. The Court considers each such request in turn. 16 A. Transfer 17 18 GMRS argues the case should be transferred to the Middle District of Florida under the “first to file” rule or, alternatively, under 28 U.S.C. § 1404(a).2 19 1. First to File Rule 20 Under the “first to file” rule, a district court has discretion to “decline jurisdiction over 21 an action when a complaint involving the same parties and issues has already been filed in 22 another district.” See Pacesetter Systems, Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th 23 Cir. 1982). 24 Here, the prior action on which GMRS relies, specifically, Martin v. Global Marketing 25 2 26 27 28 Additionally, GMRS’s counsel of record states in a declaration that there are two other actions challenging the type of calls Zilveti allegedly received, albeit involving different putative classes, and that said other two actions and the instant action “should be considered for Multi-District consolidation in the Middle District of Florida under 28 U.S.C. § 1407.” (See Schwartz Decl. ¶ 20.) A request for transfer pursuant to § 1407, however, must be made to the Judicial Panel on Multidistrict Litigation. See 28 U.S.C. § 1407(a). 2 1 Research Services, Inc., which action is pending in the Middle District of Florida, raises 2 many of the same issues as are raised in the instant action, e.g., whether GMRS “utilized 3 an automatic telephone dialing system” to call the plaintiff. (See Schwartz Decl. Ex. E 4 ¶ 14.) Zilveti, however, is not a named party to the action pending in Florida, nor does the 5 putative class in that action include individuals residing in California. (See id. Ex. E ¶ 31.) 6 Under such circumstances, the Court declines to transfer the instant action under the first 7 to file rule. See Pacesetter, 678 F.2d at 95-96 (finding “first to file rule” applies where, inter 8 alia, same parties are “involved in both suits”); see also Alltrade, Inc. v. Uniweld Products, 9 Inc., 946 F.2d 622, 628 n.13 (9th Cir. 1991) (observing that if “parties involved in the two 10 11 12 suits were not the same, adherence to the first-to-file rule would be reversible error”). Accordingly, to the extent the motion seeks transfer under the first to file rule, the motion will be denied. 13 2. Section 1404(a) 14 “For the convenience of parties and witnesses,” an action may be transferred to 15 16 another district in which it could have been brought. See 28 U.S.C. § 1404(a). In support of its request for transfer under § 1404(a), GMRS argues that, with the 17 exception of Zilveti and the putative class, who received calls in California, “[a]ll known 18 witnesses to any conduct by [GMRS] claimed violative of the TCPA are in Florida.” (See 19 Def.’s Mot. at 7:2-5.) GMRS identifies no such witness, however, and offers no evidence in 20 that regard other than a statement in a declaration by its counsel of record that the GMRS 21 employees who place phone calls on behalf of GMRS reside in Florida (see Schwartz Decl. 22 ¶ 7), which statement fails to describe in any manner the testimony any such individual 23 would be expected to give at trial. See Brandon Apparel Group, Inc. v. Quitman 24 Manufacturing Co., 42 F. Supp. 2d 821, 834 (N.D. Ill. 1999) (holding, where defendant 25 failed to provide court with information necessary to evaluate nature and quality of 26 witnesses’ expected testimony, defendant failed to show transfer was necessary for 27 convenience of witnesses). Moreover, even assuming at least some of GMRS’s 28 employees would be called to give relevant testimony, a transfer under § 1404(a) is not 3 1 appropriate where it will “merely shift rather than eliminate the inconvenience.” See 2 Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). Rather, 3 a defendant seeking transfer must “make a strong showing of inconvenience to warrant 4 upsetting the plaintiff’s choice of forum.” See id. On the limited record before the Court, 5 such a strong showing has not been made. 6 Accordingly, to the extent the motion seeks transfer under § 1404(a), the motion will 7 be denied. 8 B. Dismissal 9 GMRS argues the complaint should be dismissed under Rule 12(b)(6) of the Federal 10 Rules of Civil Procedure because, according to GMRS, (1) the instant action is duplicative 11 of the above-referenced Martin case pending in the Middle District of Florida, (2) Zilveti fails 12 to state a claim for relief under the TCPA, and (3) the section of the TCPA on which Zilveti 13 relies, § 227(b)(1)(A)(iii), is unconstitutional. For the reasons stated below, the Court finds 14 none of GMRS’s arguments persuasive. 15 First, although a “duplicative” complaint is subject to dismissal, the instant action is 16 not “duplicative” of Martin, as Zilveti is neither a plaintiff in that action nor in privity with the 17 plaintiffs named therein. See Adams v. California Dep’t of Health Services, 487 F.3d 684, 18 688-89 (9th Cir. 2007) (holding “[t]o determine whether a suit is duplicative, [courts] borrow 19 from the test for claim preclusion,” which requires a showing that “the parties or privies to 20 the action are the same”). 21 Second, contrary to GMRS’s argument that Zilveti has failed to state a claim, the 22 TCPA covers “noncommercial speech,” see Gomez v. Campbell-Ewald Co., 768 F.3d 871, 23 876 (9th Cir. 2014), and, consequently, Zilveti need not allege GMRS’s calls were made for 24 a commercial purpose. Additionally, although, as GMRS points out, the Code of Federal 25 Regulations exempts from the TCPA certain calls “placed to a wireless number that has 26 been ported from wireline service,” see 47 C.F.R. § 64.1200(a)(iv), Zilveti need not plead 27 facts to show such exemption is inapplicable, as the applicability thereof is an affirmative 28 defense. See United States v. McGee, 993 F.2d 184, 187 (9th Cir. 1993) (holding “[the 4 1 plaintiff] is not required to plead on the subject of an anticipated affirmative defense”); 2 United States v. Dish Network, LLC, 75 F. Supp. 3d 916, 937 (C.D. Ill. 2014) (holding 3 exemptions set forth in Code of Federal Regulations are “treated as [ ] affirmative 4 defense[s]”). Similarly unavailing is GMRS’s reliance on a California regulation that lists, 5 among “permissible uses” of telephone numbers provided on voter registration forms, 6 “conducting any survey of voters in connection with any election campaign.” See Cal. 7 Code Regs. tit. 2, § 19003. Even assuming such regulation obviates the need to obtain 8 express consent from such registered voters, Zilveti does not allege she provided her cell 9 phone number on a voter registration form or that the calls were made for any of the 10 purposes identified in the regulation, nor is she required to do so, see Grant v. Capital 11 Management Services, L.P., 449 Fed. Appx. 598, 600 n.1 (9th Cir. 2011) (holding “‘express 12 consent’ is not an element of a TCPA plaintiff’s prima facie case, but rather is an affirmative 13 defense”). 14 Third, the Ninth Circuit has found the application of § 227(b)(A)(iii) to calls made to 15 cell phones does not violate the First Amendment, see Gomez, 768 F.3d at 874, 876-77 16 (9th Cir. 2014); consequently, GMRS’s argument that the section is unconstitutional as 17 applied to the calls here at issue is unavailing. Lastly, to the extent GMRS argues it is 18 unconstitutional to impose liability under the TCPA when “political polling research 19 companies . . take all reasonable precautions to prevent autodialing cell phones” (see 20 Def.’s Mot. at 9:16-19), any such argument, if not barred by the holding in Gomez, is 21 premature at the pleading stage, as Zilveti does not allege GMRS has taken any step, let 22 alone all reasonable precautions, to avoid autodialing cell phones. See Allarcom Pay 23 Television, Ltd., v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir.1995) (holding district 24 court, when considering motion to dismiss for failure to state claim, must “limit [its] review to 25 the contents of the complaint”). 26 C. Striking Allegations 27 “The court may strike from a pleading . . . any redundant, immaterial, impertinent, or 28 scandalous matter.” Fed. R. Civ. P. 12(f). GMRS contends ¶ 17 of the complaint is “wholly 5 1 immaterial, impertinent, and scandalous” (see Def.s’ Mot. at 11:16), and, consequently, 2 should be stricken. 3 In the challenged paragraph, Zilveti first alleges: 4 Consumer complaints about [GMRS’s] invasive and repetitive calls are legion. For example, a single online complaint board has twenty-eight pages of complaints (approximately 560 complaints) from consumers receiving unwanted and repeated calls from [GMRS]. 5 6 (See Compl. ¶ 17.) The above allegation is then followed by five such “complaints,” the 7 first of which states, “‘I’ve been getting calls . . . 5 or 6 times a day’” and “‘[n]o one is on the 8 line when I answer.”’ (See id.) 9 The Court is not persuaded that the allegations in ¶ 17 should be stricken. 10 Elsewhere, in a portion of the complaint GMRS has not sought to strike, Zilveti alleges 11 GMRS has “received or is aware of hundreds of complaints regarding its calls” and has 12 “received hundreds of requests that the calls stop” (see Compl. ¶ 38); based thereon, 13 Zilveti asserts that GMRS, in making the calls it placed to her cell phone, “wilfully” violated 14 the TCPA. (See Compl. ¶¶ 37, 40.) The challenged “examples” (see Compl. ¶ 17) of the 15 alleged “hundreds of complaints” GMRS has received (see Compl. ¶ 38), if offered at trial in 16 an admissible form, would appear to be relevant to establishing willfulness to the extent the 17 complaints pertain to the use of an “automated telephone dialing system” to make calls to 18 cell phones. See 47 U.S.C. § 227(b)(1)(A)(iii); De Los Santos v. Millward Brown, Inc., 2014 19 WL 2938605, at *3 (S.D. Fla. 2014) (holding “signature of autodialing” is that recipient of 20 phone hears “dead air” when answering call). 21 CONCLUSION 22 For the reasons stated above, defendant’s motion is hereby DENIED. 23 IT IS SO ORDERED. 24 25 Dated: February 16, 2016 MAXINE M. CHESNEY United States District Judge 26 27 28 6
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