Jeannette Williams v. T-Mobile USA, Inc.

Northern District of California, cand-4:2015-cv-03384

ORDER GRANTING, IN PART, AND RESERVING RULING, IN PART, ON {{19}} MOTION to Dismiss. Amended Pleadings due by 11/6/2015. Signed by Judge Jeffrey S. White on October 14, 2015. (jswlc3, COURT STAFF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JEANNETTE WILLIAMS, 7 Case No. 15-cv-03384-JSW Plaintiff, 8 v. ORDER GRANTING, IN PART, AND 9 RESERVING RULING, IN PART, T-MOBILE USA, INC., MOTION TO DISMISS FIRST 10 AMENDED COMPLAINT Defendant. 11 Re: Docket No. 19 12 Northern District of California United States District Court 13 Now before the Court for consideration is the motion to dismiss the First Amended 14 Complaint ("FAC"), filed by Defendant, T-Mobile USA, Inc. ("T-Mobile"). The Court has 15 considered the parties' papers, relevant legal authority, and the record in this case, and it finds the 16 motion suitable for disposition without oral argument. See N.D. Civ. L.R. 7-1(b). The Court 17 VACATES the hearing scheduled for November 13, 2015, and it VACATES the case 18 management conference scheduled for November 13, 2015. For the reasons set forth in this Order, 19 the Court GRANTS the motion to dismiss, in part, and it reserves ruling on the motion, in part. 20 BACKGROUND 21 On September 1, 2015, Plaintiff, Jeannette Williams ("Williams"), filed the FAC, in which 22 she asserts two claims for relief against T-Mobile: (1) alleged violations of California's Rosenthal 23 Fair Debt Collection Practices Act ("RFDCPA Claim"), California Civil Code sections 1788, et 24 seq.; and (2) alleged violations of the Telephone Consumer Protection Act ("TCPA Claim"), 47 25 United States Code sections 227, et seq. Williams asserts that the Court has jurisdiction over this 26 action based on the TCPA claim, and she asserts that the Court has supplemental jurisdiction over 27 the RFDCPA Claim. (FAC ¶ 4.) 28 Williams alleges T-Mobile "began contacting Plaintiff concerning an alleged debt owed, 1 but apparently asking for Plaintiff's grandson as well." (FAC ¶ 6.) Williams also alleges that T- 2 Mobile placed "a barrage of calls" to her "with enough regularity and frequency to constitute 3 harassment under the circumstances[;]" that T-Mobile contacted her although it knew she was 4 represented by counsel; and that "[t]o place the calls at issue [T-Mobile] used an 'automatic 5 telephone dialing system,' as defined by 47 U.S.C. § 227(a)(1)." (Id. ¶¶ 7-9; see also id. ¶¶ 10, 6 13.) 7 The Court shall address additional facts as necessary in its analysis. 8 ANALYSIS 9 A. Applicable Legal Standards. 10 T-Mobile moves to dismiss the TCPA claim for failure to state a claim and moves to 11 dismiss the RCFDPA Claim on the basis that Williams lacks statutory standing. Each request 12 requires the Court to apply the standards of Federal Rule of Civil Procedure 12(b)(6). See Maya v. Northern District of California United States District Court 13 Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (motion to dismiss for "lack of statutory 14 standing requires dismissal for failure to state a claim"). 15 On a motion to dismiss under Rule 12(b)(6), the Court construes the allegations in the 16 complaint in the light most favorable to the non-moving party and takes as true all material 17 allegations in the complaint. Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir. 1986). Even under 18 the liberal pleading standard of Rule 8(a)(2), "a plaintiff's obligation to provide the 'grounds' of 19 his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of 20 the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 21 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Rather, a plaintiff must instead 22 allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570. 23 "The plausibility standard is not akin to a probability requirement, but it asks for more than 24 a sheer possibility that a defendant has acted unlawfully.... When a complaint pleads facts that are 25 merely consistent with a defendant's liability, it stops short of the line between possibility and 26 plausibility of entitlement to relief." Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting 27 Twombly, 550 U.S. at 557) (internal quotation marks omitted). 28 2 1 B. The Court Dismisses the TCPA Claim, With Leave to Amend. 2 Williams alleges that T-Mobile violated 47 U.S.C. section 227(b)(1)(A)(iii). In order to 3 state a claim, Williams must allege: (1) that T-Mobile made a call using an "automatic dialing 4 system or an artificial or prerecorded voice;" (2) to a telephone number assigned to a cellular 5 telephone number or any service for which Williams is charged for the call; and (3) without 6 Williams' consent. See Meyer v. Portfolio Recovery Systems, Inc., 707 F.3d 1036, 1043 (9th Cir. 7 2012); 47 U.S.C. § 227(b)(1)(A)(iii).1 T-Mobile argues that Williams fails to allege facts to 8 satisfy the first element, and it suggests that Williams may not be able to establish the second 9 element. 10 The TCPA defines an "automatic dialing system" as "equipment which has the capacity to 11 – … to store or produce telephone numbers to be called, using a random or sequential number 12 generator; and … to dial such numbers." 47 U.S.C. § 227(a)(1)(A)-(B). Williams alleges that Northern District of California United States District Court 13 "the equipment used to place the calls to [her] has the capacity to: 1) store and call numbers 14 without human intervention; and or 2) randomly or sequential [sic] generate numbers to be called 15 and to call such numbers without human intervention." (FAC ¶ 9.) Standing alone, these 16 allegations are no more than legal conclusions couched as fact. See, e.g., Kramer v. Autobytel, 17 Inc., 759 F. Supp. 2d 1165, 1171 (N.D. Cal. 2010) (stating that "it is conclusory to allege that 18 messages were sent 'using equipment that, upon information and belief, had the capacity to store 19 or produce telephone numbers to be called, using a random or sequential generator"). 20 Williams argues that her allegations that T-Mobile made a "barrage" of calls and that the 21 "frequency and pattern of the calls" provide the necessary factual support to conclude that the calls 22 were made with an automatic dialing system. The Court disagrees. In the Kramer case, the court 23 found that the plaintiff had supplemented the otherwise conclusory allegations with allegations 24 that described the "impersonal manner" of the messages, which were advertisements. It also noted 25 that the plaintiff had no other reason to be in contact with the defendants. Kramer, 759 F. Supp. 26 27 1 Williams does not allege that T-Mobile used an artificial or prerecorded voice to leave the 28 messages at issue. 3 1 2d at 1171. Similarly, another court within this district has found that an allegation of a "telltale 2 pause" between the time the plaintiff answered a call and the time an agent began speaking was 3 sufficient to support an inference that calls were made using an automated dialing system. Lofton 4 v. Verizon Wireless (VAW) LLC, No. 13-CV-5665-YGR, 2015 WL 1254681, at *5 No. 13-CV- 5 5665-YGR, 2015 WL 1254681, at *5 (N.D. Cal. Mar. 18, 2015); see also Kazemi v. Payless 6 Shoesource, Inc., No. 09-CV-5142-MHP, 2010 WL 963225, at *2 (N.D. Cal. Mar. 16, 2010) 7 (finding plaintiff had included sufficient facts where text messages were described as being 8 formatted in SMS code and scripted in an impersonal manner). 9 However, the Lofton court also found that allegations that the "volume of calls at issue 10 would have necessitated a predictive dialing system" were insufficient to state a claim. Lofton, 11 2015 WL 1254681, at *5. The court concludes that those allegations are similar to Williams' 12 allegations that the alleged "frequency and pattern" with which the calls were made show that T- Northern District of California United States District Court 13 Mobile used an automatic dialing system. Without any underlying facts to support the nature of 14 the calls or the frequency with which they were made, Williams has not alleged facts from which 15 the Court could reasonably and plausibly infer that T-Mobile used an automated dialing system. 16 In addition, the allegations in the FAC also suggest that T-Mobile intended to call Williams, which 17 undermines the allegations of a randomly or sequentially generated call. See, e.g., Flores v. Adir 18 International, LLC, No. 15-CV-00076-AB-(PLAx), 2015 WL 4340020, at *3-*5 (C.D. Cal. July 19 15, 2015). 20 Because the Court cannot find that Williams would be unable to cure these deficiencies, it 21 will provide her one final opportunity to amend the TCPA Claim. The Court notes that T-Mobile 22 has attached an exhibit to its opposition that suggests the number T-Mobile called may be a 23 residential number. Although the Court has not relied on that exhibit to resolve the motion, if 24 Williams chooses to amend her TCPA Claim, she must do so in good faith and consistent with her 25 obligations under Federal Rule of Civil Procedure 11. 26 C. The RFDCPA Claim. 27 Williams' remaining claim is premised on alleged violations the RFDCPA. Williams 28 asserts that the Court has supplemental jurisdiction over this claim. See 28 U.S.C. § 1367. The 4 1 Court reserves ruling on T--Mobile's motion m to dism miss, and resserves rulingg on whetherr it will 2 exeercise suppleemental jurissdiction overr that claim, until it is clear that Willliams can staate a federal 3 claaim. 4 CONCLU USION 5 Accord dingly, for th he foregoing reasons, thee Court GRA ANTS T-Mobbile's motionn to dismiss 6 thee TCPA Claiim, with leav ve to amend,, and it reserrves ruling oon the RFDC CPA Claim. If Williams 7 cho ooses to ameend, she shalll file a secon nd amendedd complaint bby no later thhan Novembber 6, 2015. 8 T-M Mobile's ansswer or other responsivee pleading too that complaaint shall be due by no laater than 9 Deecember 4, 2015. 10 If Williiams choosess not to amend the TCPA A Claim andd intends to ppursue the R RFDCPA 11 Claaim as allegeed in the FAC, she shall file a statem ment to that eeffect by November 6, 2015. At thatt 12 me, the Courtt shall issue an Order add tim dressing whhether or not it will exerccise supplem mental Northern District of California United States District Court 13 jurisdiction oveer the RFDC CPA Claim or o whether itt will dismiss the claim w without prejuudice to re- 14 filiing in state court. c 15 IT IS SO S ORDER RED. 16 Daated: Octoberr 14, 2015 17 18 ___________________________ JE EFFREY S. W WHITE 19 Unnited States D District Judgge 20 21 22 23 24 25 26 27 28 5