Abante Rooter and Plumbing Inc v. Ingenious Tech Solutions, No. 3:2018cv06591 - Document 34 (N.D. Cal. 2019)
Court Description: ORDER DENYING MOTION TO DISMISS by Judge William Alsup [denying 25 Motion to Dismiss]. (whasec, COURT STAFF) (Filed on 3/14/2019)
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Abante Rooter and Plumbing Inc v. Ingenious Tech Solutions Doc. 34 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 11 For the Northern District of California United States District Court 10 ABANTE ROOTER AND PLUMBING, INC., individually and on behalf of all others similarly situated, 12 13 14 15 No. C 18-06591 WHA Plaintiff, v. ORDER DENYING MOTION TO DISMISS INGENIOUS BUSINESS SOLUTIONS, INC. d/b/a INGENIOUS TECH SOLUTIONS, and DOES 1 through 10, inclusive, 16 Defendants. 17 / 18 INTRODUCTION 19 In this putative class action for violation of the Telephone Consumer Protection Act, 20 defendant moves to dismiss the complaint. For the following reasons, defendant’s motion is 21 DENIED. 22 23 STATEMENT Beginning in April 2015, defendant Ingenious Business Solutions made four phone calls 24 to plaintiff Abante Rooter and Plumbing in an attempt to solicit business. The four calls were 25 spread out over nearly two years, with the first call in April 2015, followed by calls in July 26 2016, August 2016, and October 2017. Each call was made to a cellular phone owned by 27 Abante and made using an automatic telephone dialing system, evidenced by the use of a 28 Dockets.Justia.com 1 prerecorded voice or a pause at the beginning of the call before transferring to a live agent. 2 Abante had never given prior express consent for these solicitation calls and the calls were not 3 for emergency purposes (First Amd. Compl. ¶¶ 8–10, 12–14). For the Northern District of California United States District Court 4 According to the complaint, the calls were from “field agents” Martin Luther, Lucy, 5 and Tom Roger who identified themselves as representatives of Ingenious. Two of those 6 agents, Martin Luther and Tom Roger, followed up by sending emails, attached to the 7 complaint, which described the offered services in greater detail. Both of the emails, however, 8 indicated that the agents also represented another entity, K-Max IT Professionals, and not just 9 Ingenious. Abante alleges that K-Max is Ingenious and appended to the complaint a screenshot 10 of the K-Max website that shows the K-Max website redirecting to the website for Ingenious 11 (First Amd. Compl. ¶ 11, Exhs. A–B). 12 Abante, on behalf of a putative class, alleges violation of 47 U.S.C. § 227, the 13 Telephone Consumer Protection Act (TCPA). Abante brings two claims under Section 227(b). 14 One claim for negligent violation of the TCPA and another for willful violation of the TCPA. 15 Abante alleges that it suffered from an invasion of privacy and was harmed by charges and 16 reduced telephone time stemming from the unsolicited phone calls. Ingenious moves to dismiss 17 all claims under Rule 12(b)(1) for lack of standing or alternatively under Rule 12(b)(6) for 18 failure to plead the necessary elements of a TCPA claim. Ingenious also requests judicial notice 19 of five exhibits in support of its motion to dismiss (First Amd. Compl. ¶¶ 24, 31–38; Mot. 4–5; 20 RJN at 2–3). ANALYSIS 21 22 1. STANDING. 23 Ingenious asserts that Abante lacks Article III standing because Abante failed to allege a 24 concrete injury. A challenge to standing is properly raised in a Rule 12(b)(1) motion to dismiss, 25 because standing pertains to a court’s subject matter jurisdiction. Chandler v. State Farm Mut. 26 Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). A party challenging a court’s subject 27 matter jurisdiction under Rule 12(b)(1) may bring a facial challenge by “assert[ing] that the 28 2 1 allegations contained in the complaint are insufficient on their face to invoke federal 2 jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). For the Northern District of California United States District Court 3 Since Ingenious asserts that Abante cannot claim an invasion of privacy as a concrete 4 injury because Abante is a California corporation and corporations do not have a right to 5 privacy in California, Ingenious brings a facial attack. As such, the court must accept the 6 factual allegations in the complaint as true. See Miranda v. Reno, 238 F.3d 1156, 1157 n.1 7 (9th Cir. 2001). 8 “[T]he irreducible constitutional minimum of” Article III standing contains three 9 elements: “(1) an injury in fact, (2) fairly traceable to the challenged conduct of the defendant, 10 and (3) likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 11 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). 12 “[T]he injury-in-fact requirement requires a plaintiff to show that he or she suffered an invasion 13 of a legally protected interest that is concrete and particularized and actual and imminent, not 14 conjectural or hypothetical.” Ibid. (citation and quotations omitted). 15 It is an open question whether a California corporation can claim an invasion of privacy 16 to establish standing. Assuming, without deciding, that a California corporation like Abante 17 cannot claim an invasion of privacy to establish standing, Abante still has sufficiently alleged 18 a concrete injury to satisfy Article III standing. More specifically, Abante sufficiently alleged 19 that it incurred a charge for the unwanted incoming calls and that the unwanted calls reduced 20 the amount of telephone time available to plaintiffs. Not only that, employee or owner time was 21 wasted in handling the unwanted calls. 22 In Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017), 23 our court of appeals held that “a violation of the TCPA is a concrete, de facto injury” and that 24 a “plaintiff alleging a violation of the TCPA ‘need not allege any additional harm beyond the 25 one Congress has identified.’” Furthermore, the “vast majority of courts that have addressed 26 this question, have concluded that the invasion of privacy, annoyance, and wasted time 27 associated with robocalls is sufficient to demonstrate concrete injury.” Abante Rooter and 28 3 1 Plumbing, Inc. v. Pivotal Payments, Inc., 2017 WL 733123, at *6 (N.D. Cal. Feb. 24, 2017) 2 (Chief Magistrate Judge Joseph C. Spero) (collecting cases). For the Northern District of California United States District Court 3 Here, in alleging a violation of the TCPA, alleging that it incurred charges for the 4 unwanted calls, and alleging that the calls resulted in reduced, usable telephone time for 5 plaintiff, Abante has alleged a concrete injury sufficient for standing. 6 2. JUDICIAL NOTICE. 7 A court may judicially notice a fact that is “not subject to reasonable dispute” because 8 it “can be accurately and readily determined from sources whose accuracy cannot reasonably be 9 questioned.” Federal Rules of Evidence 201(b) (emphasis added). However, “[j]ust because 10 the document itself is susceptible to judicial notice does not mean that every assertion of fact 11 within that document is judicially noticeable for its truth.” Khoja v. Orexigen Therapeutics, 12 Inc., 899 F.3d 988, 999 (9th Cir. 2018). 13 Here, Ingenious requests five exhibits to be judicially noticed (Exhibits A–E). 14 These documents were not referenced in the operative complaint, so to be considered, they 15 must be appropriate for judicial notice. Exhibits B, D, and E pertain to public records and so 16 are appropriate for judicial notice. Exhibit B provides the incorporation records for K-Max 17 IT Professionals showing that it was incorporated in September 2011 and dissolved in 18 November 2016. Exhibit D depicts Ingenious’ Articles of Incorporation filed with the 19 California Secretary of State, including a stamp indicating that it was filed in August 2013. 20 Exhibit E shows a Fictitious Business Name Filing Statement filed in Alameda County in 21 December 2016. All are public records whose accuracy cannot reasonably be disputed, so the 22 request for judicial notice as to Exhibits B, D, and E is GRANTED. 23 Exhibit A is a list of the forty-nine TCPA cases filed in California by plaintiff, and 24 Exhibit C depicts a Wikipedia page for area code 973, which identifies it as a New Jersey area 25 code. These documents are not necessary for resolving the motion to dismiss, so the request for 26 judicial notice as to Exhibits A and C is DENIED AS MOOT. 27 28 4 For the Northern District of California United States District Court 1 3. ELEMENTS OF THE TCPA. 2 To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough 3 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 4 544, 570 (2007). “The three elements of a TCPA claim are: (1) the defendant called a cellular 5 telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s 6 prior express consent.” Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1043 7 (9th Cir. 2012). At the pleading stage of a TCPA case, a plaintiff need only allege facts 8 supporting a plausible inference that the defendant is responsible for the illegal calls that the 9 plaintiff allegedly received on its cellular telephones. See Morris v. SolarCity Corp., 2016 10 WL 1359378, at *2 (N.D. Cal. Apr. 6, 2016) (Judge Richard Seeborg). Ingenious asserts that 11 Abante failed to plausibly allege the first element, that Ingenious, and not K-Max, called the 12 cellular phone number. 13 Ingenious’ challenge rests on a factual contention regarding who made the four phone 14 calls in question. Ingenious claims that K-Max made the calls, not Ingenious. For support, 15 Ingenious points to the fact that the first call, in April 2015, preceded the registration of the 16 fictitious business name, Ingenious Tech Solutions. In addition, Ingenious suggests that K-Max 17 and Ingenious are wholly separate entities by pointing out that K-Max was incorporated in 18 South Carolina, while Ingenious was incorporated in California, and by asserting that the 19 entities have different owners. 20 These factual contentions, especially at the pleading stage, fall far short of dooming the 21 plausibility of Abante’s complaint. While Ingenious did file for a fictitious business name in 22 2016, Ingenious’ own judicially-noticed documents show that it was incorporated in 2013, 23 before the first unsolicited call. It is certainly plausible that Ingenious made the phone call after 24 incorporation but before registering the fictitious business name. Furthermore, the fact that the 25 two business entities were incorporated in different states does not negate the possibility that 26 both entities could have been directed by the same individuals. And, Ingenious never actually 27 establishes that Ingenious and K-Max have different owners, as it claims. Ingenious identified 28 5 For the Northern District of California United States District Court 1 the owner of K-Max as Sai Tirucovelluri, but failed to identify the owner of Ingenious (Mot. 7; 2 RJN, Exhs. B, D). 3 Ingenious also points out that both emails following the calls are from the domain 4 kmaxdesigns.com, not ingenious.com. Attached to the complaint, however, are two documents 5 that plausibly link the two entities. Exhibit A, attached to the first amended complaint, shows 6 an email from tom@kmaxdesigns.com that includes in the signature line: “Email: 7 tom@genioustech.com/tom@kmaxdesigns.com” and “Web: www.genioustech.com.” 8 Exhibit B, also attached to the operative complaint, shows a web page that clearly states 9 “K-Max It Professionals [is] now INGenious Tech Solutions.” Abante also sufficiently alleged 10 that the “individuals identified themselves as being representatives of Defendant’s business” 11 (Compl. ¶ 11, Exh. B). At this stage, taking the pleadings as true and construing them in the 12 light most favorable to the nonmoving party, Abante has sufficiently pled the elements of a 13 TCPA violation. In a Rule 12 motion, it is not the plaintiff’s burden to perfectly allege the 14 relationship between two entities that are plausibly related. Abante has satisfied its burden 15 by alleging that Ingenious was directly or vicariously responsible for the phone calls, and 16 providing links between Ingenious and K-Max that, when construed favorably, show that 17 Ingenious could have plausibly made the phone calls in question. 18 19 CONCLUSION For the foregoing reasons, the motion to dismiss is DENIED. 20 21 IT IS SO ORDERED. 22 23 Dated: March 14, 2019. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 24 25 26 27 28 6
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