United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge.
issue is Defendant Maximum Title Loans LLC's Motion to
Dismiss (Doc. 17, Mot.), to which Plaintiff Sean McCullough
filed a Response (Doc. 18, Resp.), and Defendant filed a
Reply (Doc. 20, Reply).
1, 2018, Plaintiff obtained a loan from Defendant for $10,
000. (Doc. 1, Compl. ¶ 9.) Pursuant to a financing
agreement governing the loan (the “Agreement”),
Plaintiff was obligated to make scheduled payments to
Defendant with the first payment due on June 30, 2018.
(Compl. ¶ 11.)
alleges that Defendant made calls and sent text messages to
his cell phone attempting to collect on the loan immediately
after the parties entered the Agreement. (Compl. ¶ 13.)
When answering the calls, Plaintiff experienced a pause
lasting several seconds and repeatedly said
“hello” before being connected to a live
representative. (Compl. ¶ 16.) Plaintiff asked that
Defendant stop contacting him because payments under the
Agreement were not yet due. (Compl. ¶ 17.)
Notwithstanding Plaintiff's request, Defendant allegedly
made at least thirty more calls to Plaintiff from multiple
phone numbers. (Compl. ¶ 18.)
February 2019, Plaintiff filed a Complaint alleging that
Defendant willfully and knowingly violated the Telephone
Consumer Protection Act (“TCPA”). (Compl. ¶
28.) Plaintiff alleges that Defendant used an automatic
telephone dialing system (“ATDS”) to make calls
and send text messages to Plaintiff's cell phone without
Plaintiff's consent. (Compl. ¶¶ 25-26.) In the
Complaint, Plaintiff also raises claims for intentional
infliction of emotional distress and breach of contract
(collectively the “state law claims”). (Compl.
¶¶ 31, 39.) Defendant now moves to dismiss the TCPA
cause of action for failure to state a claim, and to the
extent that motion is granted, Defendant contends that the
Court should decline to retain jurisdiction over the state
law claims and therefore dismiss the balance of the
Complaint. (Mot. at 1.)
analyzing a complaint for failure to state a claim for relief
under Federal Rule of Civil Procedure 12(b)(6), the well-pled
factual allegations are taken as true and construed in the
light most favorable to the nonmoving party. Cousins v.
Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). A
plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). Legal
conclusions couched as factual allegations are not entitled
to the assumption of truth, Ashcroft v. Iqbal, 556
U.S. 662, 680 (2009), and therefore are insufficient to
defeat a motion to dismiss for failure to state a claim.
In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th
dismissal under Rule 12(b)(6) for failure to state a claim
can be based on either (1) the lack of a cognizable legal
theory or (2) insufficient facts to support a cognizable
legal claim. Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
“While a complaint attacked by a Rule 12(b)(6) motion
does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555 (citations omitted). The complaint must thus
contain “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Ashcroft, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). “[A] well-pleaded
complaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable, and that
‘recovery is very remote and unlikely.'”
Twombly, 550 U.S. at 556 (quoting Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)).
argues that Plaintiff did not sufficiently allege facts to
establish that Defendant used an ATDS and therefore failed to
state a TCPA claim that is plausible on its face. (Mot. at
4.) Plaintiff, however, argues that it is plausible that an
ATDS was used because Plaintiff experienced a significant
pause before being connected with a representative, and
Plaintiff received at least thirty more calls from Defendant
after repeated requests that Defendant not contact him.
(Resp. at 5.)
the TCPA, it is “unlawful for any person within the
United States . . . to make any call . . . using any
automatic telephone dialing system . . . to any telephone
number assigned to a . . . cellular telephone
service.” 47 U.S.C. § 227(b)(1)(A)(iii). To
state a TCPA claim, a plaintiff must sufficiently allege
that: “(1) the defendant called a cellular telephone
number; (2) using an automatic telephone dialing system; (3)
without recipient's prior express consent.”
Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d
1036, 1043 (9th Cir. 2012). Defendant contends the TCPA claim
should be dismissed because Plaintiff has failed to
sufficiently allege the second element.
TCPA 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.” 47 U.S.C. §
227(b)(1)(A)(iii). “[A] system 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. The Ninth Circuit has
explained that “dialing equipment does not need to dial
numbers or send text messages ‘randomly' in order
to qualify as an ATDS under the TCPA.” Flores v.
Adir Int'l, LLC, 685 Fed.Appx. 533, 534 (9th Cir.
2017) (mem. decision). Further, courts within the Ninth
Circuit have acknowledged “the difficulty a plaintiff
faces in knowing the type of calling system used without the
benefit of discovery” and have found that courts can
infer the use of an ATDS from the details of the call.
Hickey v. Voxernet LLC, 887 F.Supp.2d 1125, 1129-30
(W.D. Wash. 2012) (quoting Knutson v. Reply!, Inc.,
No. 10-CV-1267-BEN, 2011 WL 1447756, at *1 (S.D. Cal. Apr.
argues he “sufficiently described Defendant's
system as an ATDS” by alleging that: (1) he received
collection calls and text messages to his cellular phone from
Defendant beginning soon after May 1, 2018; (2) upon
answering the phone calls, Plaintiff experienced a
significant pause before being connected with a live
representative; (3) on multiple occasions, Plaintiff demanded
Defendant stop contacting him because the loan repayment was
not yet due; and (4) notwithstanding Plaintiff's demands,
Defendant made at least thirty more calls to Plaintiff.
(Resp. at 5.) Plaintiff also contends that he ...