N.B. Industries, Inc. v. Wells Fargo & Co., 010612 FED9, 10-17934

Docket Nº:10-17934
Party Name:N.B. INDUSTRIES, INC., a California corporation, individually and on behalf of all others similarly situated, Plaintiff - Appellant, v. WELLS FARGO & COMPANY, a Delaware corporation; WELLS FARGO BANK, N.A., a national banking association; UNITED STATES PAN ASIAN AMERICAN CHAMBER OF COMMERCE, a District of Columbia nonprofit corporation; UNITED STAT
Judge Panel:Before: SCHROEDER, O'SCANNLAIN, and BERZON, Circuit Judges.
Case Date:January 06, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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N.B. INDUSTRIES, INC., a California corporation, individually and on behalf of all others similarly situated, Plaintiff - Appellant,

v.

WELLS FARGO & COMPANY, a Delaware corporation; WELLS FARGO BANK, N.A., a national banking association; UNITED STATES PAN ASIAN AMERICAN CHAMBER OF COMMERCE, a District of Columbia nonprofit corporation; UNITED STATES PAN ASIAN AMERICAN CHAMBER OF COMMERCE EDUCATION FOUNDATION, a District of Columbia nonprofit corporation, Defendants-Appellees.

No. 10-17934

United States Court of Appeals, Ninth Circuit

January 6, 2012

NOT FOR PUBLICATION

Argued and Submitted December 5, 2011 San Francisco, California.

Appeal from the United States District Court No. 4:10-cv-03203-LB for the Northern District of California Laurel D. Beeler, Magistrate Judge, Presiding.

Before: SCHROEDER, O'SCANNLAIN, and BERZON, Circuit Judges.

MEMORANDUM[*]

Plaintiff-Appellant N.B. Industries, Inc. ("N.B.") alleges that Defendant-Appellees Wells Fargo & Company, Wells Fargo N.A. (collectively, "Wells Fargo"), the United States Pan Asian American Chamber of Commerce, and the United States Pan Asian American Chamber of Commerce Education Foundation (collectively, "USPAACC") faxed N.B. unsolicited advertisements in violation of the Junk Fax Prevention Act ("JFPA"), 47 U.S.C. § 227. The district court dismissed with prejudice N.B.'s complaint for failure to state a claim. We affirm the dismissal.

1. We review de novo a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir. 2007). Because this is an appeal from an order granting Defendants' motion to dismiss, we rely upon all the factual allegations pleaded in the Plaintiff's complaint and assume them to be true. See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).

2. The faxes sent by Wells Fargo and USPAACC comprised almost entirely information about an Asian Business Leadership Award, an application for the award, and encouragement to apply. In addition, the faxes contained five mentions of the 2010 USPAACC CelebrAsian Business Opportunity Conference; were marked with six USPAACC or Wells Fargo logos; provided general (non-award specific) USPAACC or Wells Fargo contact information twice; and once invited recipients to "[v]isit" USPAACC and Wells Fargo's websites, sites that contained information...

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