Thomas v. Dun & Bradstreet Credibility Corp.

• Decision Date: 05 August 2015
• Docket Number: Case No. CV 15–03194 BRO GJSx
• Court: U.S. District Court — Central District of California
• Parties: Jeffrey A. Thomas v. Dun & Bradstreet Credibility Corp.

100 F.Supp.3d 937

Jeffrey A. Thomas

v.Dun & Bradstreet Credibility Corp.

Case No. CV 15–03194 BRO GJSx

United States District Court, C.D. California.

Signed August 5, 2015

Daniel M. Hutchinson, Lieff Cabraser Heimann and Bernstein LLP, San Francisco, CA, Aaron Siri, Siri and Glimstad LLP, Jonathan D. Selbin, Lieff Cabraser Heimann and Bernstein LLP, New York, NY, David C. Parisi, Parisi and Havens LLP, Santa Monica, CA, John T. Spragens, Lieff Cabraser Heimann and Berstein LLP, Nashville, TN, for Jeffrey A. Thomas.

Timothy William Loose, Gibson Dunn and Crutcher LLP, Los Angeles, CA, for Dun and Bradstreet Credibility Corp.

Proceedings: (IN CHAMBERS)

ORDER DENYING MOTION TO DISMISS [16]

BEVERLY REID O'CONNELL, United States District Judge

I. INTRODUCTION

Pending before the Court is Defendant Dun & Bradstreet Credibility Corp.'s (“Defendant”) Motion to Dismiss Plaintiff Jeffrey A. Thomas's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 16.) After considering the papers filed in support of and in opposition to the instant motion, the Court deems this matter appropriate for decision without oral argument of counsel. See Fed. R. Civ. P. 78 ; C.D. Cal. L.R. 7–15. For the following reasons, the Court DENIES Defendant's motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is a resident and citizen of the State of Oregon and Executive Vice President of a company called J and J Thomas, Inc. (Compl., ¶¶ 7, Ex. A.) Defendant sells credit building and credibility solutions for businesses. (Compl. ¶ 8.) Plaintiff initiated this putative class action on April 28, 2015, alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §§ 227 et seq., and California's Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq. Plaintiff seeks to represent a nationwide class of individuals who have received non-emergency telemarketing calls from or on behalf of Defendant to their cellular telephones without prior express consent. (Compl. ¶ 40.)

According to the Complaint, Plaintiff received numerous calls from Defendant to his cellular telephone throughout 2013. (Compl. ¶ 23.) Plaintiff alleges these calls were unlawful under the TCPA because he never granted Defendant permission to contact him about any of Defendant's business credit services. (Compl. ¶ 22.) Plaintiff further alleges he requested Defendant cease calling him and even asked Defendant to place him on the company's “do-not-call” list on several occasions; Defendant nevertheless continued to call Plaintiff's cellular telephone. (Compl. ¶ 24.)

On October 7, 2013, Defendant again called Plaintiff's cellular telephone. (Compl. ¶ 25.) Frustrated by the continued calls, Plaintiff sent a cease-and-desist letter on October 8, 2013 detailing his efforts over the past year to be placed on Defendant's “do-not-call” list. (Compl. ¶ 26, Ex. A.) The letter stated the following, in pertinent part:

[T]he purpose of this letter is to demand that you CEASE AND DESIST contact of any kind with me or any member of J and J Thomas, Inc.[,] to include the following subsidiaries: Concierge Home and Business Watch, J and J Thomas International, Grants Pass Security, and F Wombat and Co. This demand includes but is not limited to, phone calls, texts, emails, faxes and letters/mailers.

(Compl. Ex. A.) Plaintiff provided a copy of the letter to the Federal Communications Commission (“FCC”), Oregon Department of Justice, and State of California Department of Justice. (Compl. ¶ 26.)

Plaintiff contends Defendant's actions violate the TCPA and constitute unlawful and unfair business practices under the UCL. (Compl. ¶¶ 62–78.) Plaintiff alleges Defendant acted knowingly and willfully by continuing to call Plaintiff's cellular telephone despite his requests to be placed on the company's “do-not-call” list. (Compl. ¶ 64.) Plaintiff seeks statutory damages under the TCPA, injunctive relief, and an award of attorney's fees and costs. (Compl. Prayer for Relief.) Defendant now seeks to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 16.) Plaintiff timely opposed the motion, (Dkt. No. 13), and Defendant timely replied, (Dkt. No. 19).

III. LEGAL STANDARD

Under Rule 8(a), a complaint must contain a “short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). If a complaint fails to do this, the defendant may move to dismiss it under Rule 12(b)(6). Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” ’ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Thus, there must be “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility’ ” that the plaintiff is entitled to relief. Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ).

Where a district court grants a motion to dismiss, it should provide leave to amend unless it is clear that the complaint could not be saved by any amendment. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.2008) (“Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.”). Leave to amend, however, “is properly denied ... if amendment would be futile.” Carrico v. City & Cty. of S.F., 656 F.3d 1002, 1008 (9th Cir.2011).

IV. DISCUSSION

Defendant challenges Plaintiff's claims under the TCPA on three primary bases. First, Defendant argues Plaintiff lacks statutory standing because he was not a “called party” within the meaning of § 227(b)(1)(A)(iii). Second, Defendant contends the October 7, 2013 call was a business-to-business call and argues § 227(b)(1)(A)(iii) only applies to telemarketing activities directed at consumers. Third, Defendant asserts Plaintiff has failed to plausibly allege Defendant called him using an automatic telephone dialing system (“ATDS”), which is required for liability under § 227(b)(1)(A)(iii).

Defendant also seeks to dismiss Plaintiff's UCL claim. Defendant argues this claim is derivative of Plaintiff's claims under the TCPA and fails for the same reasons stated above. Defendant also argues that because Plaintiff is a resident and citizen of Oregon, he should not be permitted to invoke the protections of California law. Finally, Defendant asserts Plaintiff lacks statutory standing under the UCL because he has not alleged a loss of money or property. The Court will discuss each claim and the parties' respective arguments in turn.

A. Plaintiff's Claims Under the TCPA

Plaintiff maintains Defendant violated § 227(b)(1)(A)(iii) by calling his cellular telephone on multiple occasions throughout 2013, including on October 7, 2013, which lead to the cease-and-desist letter. To state a claim under the TCPA, Plaintiff must allege all three of the following: (1) Defendant called Plaintiff's cellular telephone; (2) Defendant used an ATDS; and (3) Plaintiff did not give prior express consent to the calls at issue. Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir.2012) ; Flores v. Adir Int'l, LLC, No. CV 15–00076 AB, 2015 WL 4340020, at *3 (C.D.Cal. July 15, 2015) ; Jordan v. Nationstar Mortg. LLC, No. CV 14–00787 WHO, 2014 WL 5359000, at *4 (N.D.Cal. Oct. 20, 2014). Defendant challenges Plaintiff's allegations regarding the first and second elements.

1. Whether Plaintiff Is a “Called Party” Under the TCPA

Defendant first argues Plaintiff lacks statutory standing under the TCPA because he is not a “called party” within the meaning of § 227(b)(1)(A)(iii). (Mot. to Dismiss at 5–7.) Defendant asserts the proper definition of a “called party” requires that the plaintiff be the current subscriber of the line. In arguing Plaintiff was not the “called party” here, Defendant relies on the cease-and-desist letter, which Plaintiff signed in his capacity as Executive Vice President of J and J Thomas, Inc. and which indicates Defendant called the company's “office” on October 7, 2013. (See Compl. Ex. A.) According to Defendant, the letter demonstrates that Plaintiff's company, not Plaintiff, is the current subscriber of the line.

As relevant here, the TCPA provides that

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 ... 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 ... to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the “called party” is charged for the call.

47 U.S.C. § 227(b)(1)(A)(iii). The TCPA confers a private right of action to “[a] person or entity” to sue for violations of § 227(b)(1). Id. § 227(b)(3). Although § 227(b)(3) does not expressly limit who may file suit, most federal courts have read § 227(b)(1) to limit standing to a “called party.” The issue often arises where the defendant intends to call one party and inadvertently calls the plaintiff. The issue may also arise where the name on the account is not the same as the regular user of the...