United States District Court, D. Arizona
ORDER
Honorable John J. Tuchi United States District Judge
At
issue is Defendant's Motion to Dismiss under Federal Rule
of Civil Procedure 12(b)(6) (Doc. 24, Mot.), to which
Plaintiff filed a Response (Doc. 26, Resp.) and Defendant
filed a Reply (Doc. 27, Reply). Because the parties'
briefs were adequate for the Court to resolve the issues
raised in Defendant's Motion, the Court declined to hold
oral argument on the briefs. See LRCiv 7.2(f). For
the reasons that follow, the Court grants Defendant's
Motion in part and denies it in part. The Court also grants
Plaintiff leave to file a Second Amended Complaint, should
she so choose.
I.
BACKGROUND
Plaintiff
alleges claims against Defendant under the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227,
and the California Invasion of Privacy Act
(“CIPA”), Calif. Penal Code § 632.7. On
February 4, 2019, Plaintiff received a phone call on her
cellular phone. She alleges that the call was made with an
automatic telephone dialing system (“ATDS”)
because “there was a distinct ‘click and
pause' at the outset of the call.” (Compl. at 8.)
Plaintiff states that “[a] series of pre-recorded
messages then played.” (Compl. at 8.) After the
prerecorded messages, Plaintiff spoke with a live individual.
Plaintiff claims that this phone call was recorded by
Defendant and Defendant did not inform her that the call was
recorded. (Compl. at 8.)
In her
Complaint, Plaintiff brought two claims related to this phone
call on behalf of a putative class of persons. First,
Plaintiff alleges that Defendant violated the TCPA by making
a telemarketing call to Plaintiff's cellular device with
an ATDS and prerecorded voice without Plaintiff's
consent. Second, Plaintiff claims that Defendant violated the
CIPA by recording the phone call without informing Plaintiff.
Pursuant to Rule 12(b)(6), Defendant now moves to dismiss the
claims against it. (Mot. at 1-2.)
II.
LEGAL STANDARD FOR RULE 12(b)(6) MOTION TO DISMISS
Federal
Rule of Civil Procedure 12(b)(6) is designed to “test[]
the legal sufficiency of a claim.” Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). A 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). When analyzing a complaint under
Rule 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). 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 Cir. 2010). On a Rule 12(b)(6)
motion, Rule 8(a) governs and requires that, to avoid
dismissal of a claim, 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).
III.
ANALYSIS
A.TCPA
Claim (Count One)
Under
the TCPA, a plaintiff has a claim against any individual who
“make[s] any call . . . using any automatic telephone
dialing system or an artificial or prerecorded voice . . . to
any telephone number assigned to a paging service, cellular
telephone service, . . . or any service for which the party
is charged for the call.” 47 U.S.C. §
227(b)(1)(A). To survive a 12(b)(6) motion, the plaintiff
must allege sufficient facts demonstrating “(1) the
defendant called a cellular telephone number; (2) using an
automatic telephone dialing system [or prerecorded voice];
(3) without the recipient's prior express consent.”
Meyer v. Portfolio, 707 F.3d 1036, 1043 (9th Cir.
2012); 47 U.S.C. § 227(b)(1)(A). The parties dispute
whether Plaintiff has sufficiently alleged the second
element.
In its
Motion, Defendant argues that Plaintiff does not allege
sufficient facts to support her TCPA claim. Although
Defendant originally did not address the prerecorded voice
allegation (Resp. at 7), Defendant argued, in its Reply, that
Plaintiff failed to support her claim that Defendant used a
prerecorded voice with sufficient facts (Reply at 4). In the
Complaint, Plaintiff states “[a] series of pre-recorded
messages then played.” (Compl. at 8.) Because this fact
describes Plaintiff's experience and the phone call
itself, it is a non-conclusory fact. Therefore, Plaintiff
sufficiently alleges that Defendant used a prerecorded voice,
which alone satisfies the requirements to bring a TCPA claim.
Plaintiff
has also adequately alleged that Defendant used an ATDS to
make the phone call. Defendant argues that Plaintiff failed
to allege sufficient facts to support the claim that an ATDS
was used. (Mot. at 5.) An ATDS is a piece of “equipment
which has the capacity-(1) to store numbers to be called or
(2) to produce numbers to be called, using a random or
sequential number generator-and to dial such numbers
automatically (even if the system must be turned on or
triggered by a person).” Marks v. Crunch San Diego,
LLC, 904 F.3d 1041, 1053 (9th Cir. 2018). Plaintiff must
allege sufficient facts to allow the Court to
“reasonably infer” that Defendant used an ATDS.
Flores v. Adir Int'l, LLC, 685 Fed. App'x
533, 533 (9th Cir. 2017) (mem. decision). In a previous case,
this Court “acknowledged ‘the difficulty a
plaintiff faces in knowing the type of calling system used
without the benefit of discovery' and . . . that courts
can infer the use of an ATDS from the details of the
call.” McCullough v. Maximum Title Loans LLC,
2019 WL 3933754, at *2 (D. Ariz. Aug. 20, 2019) (internal
citations omitted).
Multiple
courts in the Ninth Circuit have found that “general
allegations [of the use of an ATDS] are sufficiently
bolstered by specific descriptions of the
‘telltale' pause after the plaintiff picked up each
call . . . which suggests the use of a predictive dialing
system, and thus renders plausible the conclusory allegation
that an ATDS was used.” Cabiness v. Educational
Fin. Solutions, LLC, 2016 WL 5791411, at *7 (N.D. Cal.
Sept. 1, 2016) (internal citation omitted). Although some of
Plaintiff's factual allegations are conclusory, Plaintiff
alleges that she heard “a distinct ‘click and
pause' at the outset of the call.” (Compl. at 8.)
Accepting this non-conclusory factual allegation as true, the
Court can reasonably infer that Defendant called Plaintiff
using an ATDS. Because Plaintiff has stated a claim that
Defendant used both an ATDS and a prerecorded voice, the
Court denies Defendant's Motion to Dismiss as to Count
One.
B.
CIPA ...