Maier v. J.C. Penney Corporation, Inc. et al, No. 3:2013cv00163 - Document 19 (S.D. Cal. 2013)
Court Description: ORDER denying Defendant J.C. Penney Corporation's 14 Motion to Dismiss. Court finds that Plaintiff has sufficiently pleaded the use of an automatic telephone dailing system (ATDS). Signed by Judge Irma E. Gonzalez on 6/13/2013. (jah)
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Maier v. J.C. Penney Corporation, Inc. et al Doc. 19 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 TRACY MAIER, on behalf of herself and all others similarly situated, and the general public, Plaintiffs, v. J. C. PENNEY CORPORATION, INC., a Delaware corporation, and J. C. PENNEY COMPANY, INC., a Delaware corporation, CASE NO. 13cv0163 - IEG (DHB) ORDER DENYING DEFENDANT’S MOTION TO DISMISS [Doc. No. 14] Defendants. 17 18 Presently before the Court is the motion of Defendant J. C. Penney 19 Corporation (“Defendant”) to dismiss the Complaint of Plaintiff Tracy Maier 20 (“Plaintiff”) for failure to state a claim. [Doc. No. 14, Def.’s Mot.] For the 21 following reasons, the Court DENIES Defendant’s motion to dismiss. 22 BACKGROUND 23 Plaintiff alleges that on June 16, 2012, she received an unsolicited text 24 message to her wireless phone promoting Defendant’s retail business. [Doc. No. 1, 25 Compl. ¶ 14.] Plaintiff specifically asserts that she received the following text 26 message content from Short Message Service (“SMS”) short code 527-365: 27 28 jcp: Reply YES now to be first to know about our best prices, special store events & new things -1- 13cv0163 Dockets.Justia.com happening at jcp. Dtls http://bit.ly/yALZuq Msg&DataRatesApply 1 2 3 [Id. ¶ 15.] Plaintiff further alleges that this text message was sent by an “automatic 4 telephone dialing system” (“ATDS”) with the “capacity to store or produce and dial 5 numbers randomly or sequentially, to place telephone calls and/or SMS or text 6 messages to Plaintiff’s cellular telephone.” [Id. ¶ 16.] Finally, Plaintiff asserts that she “did not provide Defendants or their agents 7 8 prior express consent to receive unsolicited text messages,” and that Defendant’s 9 text messages “constituted ‘calls’ under the [Telephone Consumer Protection Act 10 (“TCPA”)] that were not for emergency purposes” and “for which Plaintiff incurred 11 a charge.” [Id. ¶¶ 17, 18, 19, 21.] Based on these allegations, Plaintiff concludes 12 that “Defendants or their agents violated 47 U.S.C. § 227(b)(1).” [Id. ¶ 22.] Plaintiff filed the instant action on behalf of herself and others similarly 13 14 situated on January 21, 2013. [Doc. No. 1, Compl.] The Complaint asserts two 15 causes of action for violations of the TCPA, 47 U.S.C. § 227 et seq. The first cause 16 of action is for negligent violation of the TCPA and the second is for knowing 17 and/or willful violation of the same. [Id. ¶¶ 34-38, 39-43.] Defendant subsequently 18 filed the present motion to dismiss Plaintiff’s Complaint, arguing failure to state a 19 claim upon which relief can be granted under Federal Rule of Civil Procedure 20 12(b)(6). [Doc. No. 14, Def.’s Mot.] DISCUSSION 21 22 23 I. Motion to Dismiss A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 24 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. 25 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court 26 must accept all factual allegations pleaded in the complaint as true, and must 27 construe them and draw all reasonable inferences from them in favor of the 28 nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. -2- 13cv0163 1 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed 2 factual allegations; rather, it must plead “enough facts to state a claim to relief that 3 is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A 4 claim has “facial plausibility when the plaintiff pleads factual content that allows 5 the court to draw the reasonable inference that the defendant is liable for the 6 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 7 550 U.S. at 556). 8 However, “a plaintiff’s obligation to provide the ‘grounds’ of his 9 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 10 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 11 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (alteration in original). 12 A court need not accept “legal conclusions” as true. Iqbal, 556 U.S. at 678. In spite 13 of the deference the court is bound to pay to the plaintiff’s allegations, it is not 14 proper for the court to assume that “the [plaintiff] can prove facts that [he or she] 15 has not alleged or that defendants have violated the . . . laws in ways that have not 16 been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of 17 Carpenters, 459 U.S. 519, 526 (1983). “Where a complaint pleads facts that are 18 ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between 19 possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting 20 Twombly, 550 U.S. at 557). 21 In determining the propriety of a Rule 12(b)(6) dismissal, a court may not 22 look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 23 903, 908 (9th Cir. 2003). However, a court “may take judicial notice of matters of 24 public record . . . as long as the facts noticed are not subject to reasonable dispute.” 25 Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016 n.9 (9th Cir. 2012). 26 Because both the Plaintiff’s first and second causes of action rely on the same 27 factual allegations being challenged for sufficiency under Iqbal and Twombly, both 28 causes of action are analyzed together below. -3- 13cv0163 1 A. 2 The TCPA, in relevant part, provides: 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 TCPA Violation It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States . . . (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . (iii) to any telephone number assigned to a . . . cellular telephone service . . . or any service for which the called party is charged for the call[.]” 47 U.S.C. § 227(b)(1). The Ninth Circuit has established that text messages (also referred to as SMS) are encompassed within the term “call” as used in the TCPA and are therefore subject to its restrictions. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009). 47 U.S.C. § 227(a)(1) defines an ATDS as “equipment which has 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.” Based on the clear language of the TCPA, an ATDS “need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do it.” Satterfield, 569 F.3d at 951. Due to this distinction, “the issue is not whether [a defendant] used an ATDS, but whether its equipment had the requisite capacity. Blair v. CBE Group Inc., No. 13-CV-134-MMA(WVG), 2013 WL 2029155, at *4 (S.D. Cal. May 13, 2013) (emphasis in original). Defendant argues in its motion that Plaintiff’s allegations of the use of an ATDS are conclusory and unsupported by sufficient factual allegations to meet the requisite pleading standard established by Twombly and Iqbal. [Doc. No. 14, Def.’s Mot. at 3.] In support of this argument, Defendant refers to the specific allegations in Plaintiff’s Complaint containing the statutory language describing an ATDS. [Doc. No. 14-1, Def.’s Memo. In Support at 5.] While the specific requirements for an allegation of the use of an ATDS to survive a Rule 12(b)(6) motion to dismiss have not been conclusively established by controlling authority, persuasive authority has generally followed one of two -4- 13cv0163 1 approaches. The first approach has been to allow for minimal allegations regarding 2 use of an ATDS in recognition of the fact that the type of equipment used by the 3 defendant to place the “call” is within the sole possession of the defendant at the 4 pleading stage, and will therefore only come to light once discovery has been 5 undertaken. See, e.g., In re Jiffy Lube Int’l., Inc., Text Spam Litig., 847 F. Supp. 2d 6 1253, 1260 (S.D. Cal. 2012); Blair, 2013 WL 2029155, at *4. Under this approach, 7 the allegation of receipt of a text message along with the allegation that this 8 message was sent by a machine with the capacity to store and produce random 9 telephone numbers has been held sufficient to plead a defendant’s use of an ATDS. 10 In re Jiffy Lube, 847 F. Supp. 2d at 1260. “While additional factual details about 11 the machines might be helpful, further facts are not required to move beyond the 12 pleading stage.” Id. The second approach has been that a TCPA plaintiff must go beyond simply 13 14 using statutory language alleging the defendant’s use of an ATDS and must include 15 factual allegations about the “call” within the complaint allowing for a reasonable 16 inference that an ATDS was used. See, e.g., Kramer v. Autobytel, Inc., 759 F. 17 Supp. 2d 1165, 1171 (N.D. Cal. 2010) (providing that an isolated allegation of the 18 use of an ATDS to send text messages is conclusory and therefore does not meet the 19 requisite pleading standard under Iqbal and Twombly); Johansen v. Vivant, Inc., 12 20 C 7159, 2012 WL 6590551, at *3 (N.D. Ill. Dec. 18, 2012) (requiring further 21 information about the call or message to support a reasonable inference that it was 22 pre-recorded or delivered by an ATDS). “This approach does not burden plaintiffs 23 unduly by requiring pleading of technical details impossible to uncover without 24 discovery, rather it necessitates that they plead only facts easily available to them on 25 the basis of personal knowledge and experience.” Johansen, 2012 WL 6590551, at 26 *3. 27 28 Under this second approach, courts recognize that “[p]laintiffs alleging the use of a particular type of equipment under the TCPA are generally required to rely -5- 13cv0163 1 on indirect allegations, such as the content of the message, the context in which it 2 was received, and the existence of similar messages, to raise an inference that an 3 automated dialer [ATDS] was utilized. Prior to the initiation of discovery, courts 4 cannot expect more.” Gragg v. Orange Cab Co., Inc., No. C12-0576RSL, 2013 WL 5 195466, at *2 n.3 (W.D. Wash. Jan. 17, 2013). The following are additional 6 examples of indirect factual allegations supporting a reasonable inference of use of 7 an ATDS: (1) generic content of a message, a description of a robotic sounding 8 voice, or a lack of human response, Johansen, 2012 WL 6590551, at *3; (2) 9 impersonal advertising content of a text message received from a particular sender 10 with no reason to contact the plaintiff, Kramer, 759 F. Supp. 2d at 1171; (3) 11 “generic content and automatic generation of the message,” Hickey v. Voxernet 12 LLC, 887 F. Supp. 2d 1125, 1130 (W.D. Wash. 2012). 13 However, where factual allegations made in a plaintiff’s complaint “are 14 unsupported by any specific facts and appear less likely than the alternate inference, 15 namely that plaintiff received a customer specific text . . . through human agency, 16 rather than an ATDS” the pleading standard for this element is not met. See Gragg, 17 2013 WL 195466, at *2 (finding that alleged text message content from a service 18 provider including a unique taxi number and time of dispatch in response to a 19 plaintiff’s request for taxi service was not generic or impersonal and therefore did 20 not support a reasonable inference of use of an ATDS). 21 Defendant argues that the text message in question was sent to Plaintiff after 22 she allegedly “submitted her cell phone number to the Rewards Program website 23 and agreed to be contacted by jcpenney at that number.” [Doc. No. 17, Def.’s Reply 24 at 6.] Defendant contends that this prior contact makes use of an ATDS less 25 plausible than an alternative inference of a customer specific text through human 26 agency. Because this argument is based upon a factual allegation outside of 27 Plaintiff’s Complaint, such an allegation may not be considered for the purpose of 28 ruling on this Rule 12(b)(6) motion absent a showing that it is based on documents -6- 13cv0163 1 incorporated by reference in the Complaint, or is a matter of judicial notice. 2 Ritchie, 342 F.3d at 908. As no such showing is made by Defendant, this argument 3 need not be addressed further. 4 Here, Plaintiff’s Complaint alleges both that she received a “call” in the 5 form of a text message and that an ATDS, with the functional capacity required by 6 the statute, placed this message, thereby satisfying the first approach as described 7 above. [Doc. No. 1, Compl. ¶¶ 14, 16.] Further, Plaintiff supplements her ATDS 8 allegation with a factual allegation of the specific content of the text message and 9 the number from which it was received. [Id. ¶ 15.] The alleged text message 10 content does not include unique information, as in Gragg, to preclude a generic or 11 impersonal interpretation of the message. Because this Court must construe and 12 draw all reasonable inferences from factual allegations in favor of the nonmoving 13 party, Cahill, 80 F.3d at 337-38, the Court finds that the generic and impersonal 14 content of the text message supports the reasonable inference of use of an ATDS. 15 See Johansen, 2012 WL 6590551, at *3. Accordingly, Plaintiff’s ATDS allegation 16 satisfies both of the prevailing approaches discussed above. CONCLUSION 17 18 For the reasons above, this Court finds that the Plaintiff has sufficiently 19 pleaded the use of an ATDS. Therefore, this Court DENIES Defendant’s motion to 20 dismiss Plaintiff’s Complaint pursuant to Rule 12(b)(6). 21 22 IT IS SO ORDERED. DATED: June 13, 2013 ___________________________ IRMA E. GONZALEZ United States District Judge 23 24 25 26 27 28 -7- 13cv0163
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