Abante Rooter & Plumbing, Inc. v. Pivotal Payments, Inc.

• Decision Date: 24 February 2017
• Docket Number: Case No. 16-cv-05486-JCS
• Parties: ABANTE ROOTER AND PLUMBING, INC., Plaintiff, v. PIVOTAL PAYMENTS, INC., Defendant.
• Court: U.S. District Court — Northern District of California

ABANTE ROOTER AND PLUMBING, INC., Plaintiff, v. PIVOTAL PAYMENTS, INC., Defendant.

Case No. 16-cv-05486-JCS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

February 24, 2017

ORDER DENYING MOTION TO DISMISS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(B)(1) AND 12(B)(6)

Re: Dkt. No. 15

I. INTRODUCTION

Plaintiff Abante Rooter and Plumbing, Inc. ("Abante") brings this putative class action under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. §§ 227, et seq., alleging that Defendant Pivotal Payments, Inc. ("Pivotal") was responsible for "robocalls" placed to several cellular telephone numbers used by Abante to communicate with its customers. Pivotal brings a Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) ("Motion") asserting, inter alia, that Abante's complaint is subject to dismissal for lack of subject matter jurisdiction because Abante has not demonstrated the existence of Article III standing under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). The Court finds that the Motion is suitable for determination without oral argument pursuant to Civil Local Rule 7-1(b) and therefore vacates the motion hearing set for Friday, March 3, 2017 at 9:30 a.m. The Initial Case Management Conference that was set for the same time is rescheduled to occur at 2:00 p.m. rather than at 9:30 a.m. on March 3, 2017. For the reasons stated below, the Motion is DENIED.¹

II. BACKGROUND

A. The Complaint

Abante is a corporation based in California, with its principal place of business in Alameda County, California. Complaint ¶ 2. It is a "small plumbing company that provides an array of commercial and residential draining and plumbing services, including emergency draining and plumbing services" in the San Francisco Bay area. Id. ¶ 23. Abante uses several cellular telephone numbers that are assigned to different cities around the San Francisco Bay Area, including (209) 383-XXXX, (925) 253-XXXX, and (510) 351-XXXX, to conduct its business. Id. ¶ 24. Abante "receives important, and often urgent, calls from current and potential customers on each of the above-listed cellular telephone numbers." Id. ¶ 26. According to Abante, "because Plaintiff's business provides emergency services, every call made to its telephone number could be [a] new customer with a crisis situation." Id. ¶ 28.

Abante alleges that Pivotal "is a leading provider of technology-driven global payment processing solutions for small to large enterprises.'" Id. ¶ 14 (quotation omitted). One of its divisions is Capital Processing Network or CPN ("CPN"), which Pivotal acquired in 2014. Id. ¶ 16. According to Abante, CPN "provides complete merchant services and credit card processing to point-of-sale businesses across the U.S." Id. (internal quotation omitted). Abante further alleges that "[o]ne of [Pivotal's] strategies for marketing its credit card processing services involves the use of an automatic telephone dialing system ('ATDS') to solicit business." Id. ¶ 18. Abante alleges that Pivotal uses this ATDS to make unsolicited calls that play recorded messages to cellular telephone numbers. Id. ¶¶ 20-21. The recipients of these calls - including Abante - have not consented to receive such calls. Id.

Abante alleges the following specific facts regarding the "robocalls" that are the subject of this action, which the Court repeats verbatim because Pivotal asserts they are not sufficient to support an inference that the calls were made by or on behalf of Pivotal:

29. On or around July 15, 2016, Plaintiff received a telemarketing call on its cellular telephone number, (925) 253-XXXX, from, or on behalf of, Pivotal Payments.

30. The caller ID showed the telephone call was from (941) 208-8241.

31. When the call was answered, there was a lengthy pause and a click followed by silence before any voice came on the line, which indicated to him that the call was made using an ATDS.

32. Following the lengthy pause and extended silence, a prerecorded message played, stating words to the effect that the call was marketing credit card processing services. The called party was instructed to press a button on their telephone for further information.

33. In an attempt to determine the identity of the caller, Plaintiff pressed the button for further information and was instructed to leave a voice message with a telephone number by another prerecorded voice.

34. In a further attempt to determine the identity of the caller, Plaintiff left a voice message requesting a call back at telephone number (510) 534-XXXX.

35. Shortly after leaving the voice message, Plaintiff received a call on Plaintiff's cellular telephone number, (925) 253-XXXX, from a person who identified himself as Leif Gates.

36. Shortly after Mr. Gates identified himself, the call unintentionally disconnected.

37. Later on July 15, 2016, Plaintiff received a telemarketing call on its cellular telephone number, (209) 383-XXXX, from, or on behalf of, Pivotal Payments.

38. The caller ID showed the telephone call was from (941) 208-8241.

39. When the call was answered, there was again a lengthy pause and a click followed by silence before any voice came on the line, which indicated to him that the call was made using an ATDS.

40. Following the lengthy pause and extended silence, a prerecorded message played stating words to the effect that the call was marketing credit card processing services. The called party was instructed to press a button on their phone for further information.

41. Again, in an attempt to determine the identity of the caller, Plaintiff pressed the button for further information and was instructed to leave a voice message with a telephone number by another prerecorded voice.

42. In a further attempt to determine the identity of the caller, Plaintiff left a voice message requesting a call back at telephone number (510) 459-XXXX.

43. After leaving the voice message, Plaintiff received a call on Plaintiff's cellular telephone number, (510) 459-XXXX, on July 18, 2016 from a person who identified herself as "Amanda of CPN USA."

44. Amanda informed Plaintiff that the purpose of the call was to offer Plaintiff credit card processing services provided by CPN.

45. On July 18, 2016, after speaking with Amanda, Plaintiff received a follow up email from Amanda Hanf at afanf@cpnusa.com, which identified Ms. Hanf as a senior account executive at CPN.

46. The email further encouraged Plaintiff to "check out our website at www.cpnusa.com" and detailed the cost saving credit card processing services CPN could provide.

47. On August 19, 2016, Amanda called Plaintiff twice to market CPN's credit card processing services.

48. In response to these two telephone calls from Amanda, Plaintiff requested that CPN cease calling.

49. On or around July 19, 2016, Plaintiff received another telemarketing call on its cellular telephone number, (510) 351-XXXX, from, or on behalf of, Pivotal Payments.

50. The caller ID showed the telephone call was from (251) 263-0995.

51. When Plaintiff answered the telephone call, there was again a lengthy pause and a click followed by silence before any voice came on the line, which indicated to him that the call was made using an ATDS.

52. Following the lengthy pause and extended silence, a prerecorded message played stating words to the effect that the call was marketing credit card processing services. The called party was instructed to press a button on their telephone for further information.

53. Again, in an attempt to determine the identity of the caller, Plaintiff pressed the button for further information and was instructed to leave a voice message with a telephone number by another prerecorded voice.

54. On or around July 28, 2016, Plaintiff received another telemarketing call on its cellular telephone number, (925) 253-XXXX, from, or on behalf of, Pivotal Payments.

55. The caller ID showed the telephone call was from (828) 548-6764.

56. When Plaintiff answered the telephone call, there was again a lengthy pause and a click followed by silence before any voice came on the line, which indicated to him that the call was made using an ATDS.

57. Following the lengthy pause and extended silence, a prerecorded message played stating words to the effect that the call was marketing credit card processing services. The called party was instructed to press a button on their telephone for further information.

58. Again, in an attempt to determine the identity of the caller, Plaintiff pressed the button for further information and was instructed to leave a voice message with a telephone number by another prerecorded voice.

59. In a further attempt to determine the identity of the caller, Plaintiff left a voice message requesting a call back at telephone number (209) 383-XXXX.

60. On July 28, 2016, shortly after leaving the voice message, Plaintiff received a call on Plaintiff's cellular telephone number, (209) 383-XXXX, from Leif Gates at CPN USA.

61. Mr. Gates informed Plaintiff that the purpose of the call was to offer Plaintiff credit card processing services provided by CPN.

62. On July 28, 2016, after speaking with Mr. Gates, Plaintiff received a follow up email from Leif Gates-Suppah at lgsuppah@cpnusa.com, which identified Mr. Gates as a senior account executive at CPN.

63. Immediately after sending his email, Mr. Gates called Plaintiff again to confirm that he had received the email.

64. Plaintiff promptly responded to Mr. Gates' email on July 28, 2016 with simply the words "not interested."

65. Not to be deterred, Mr. Gates then sent Plaintiff another email marketing CPN's credit card processing services.

66. On or around July 28, 2016, Plaintiff received another telemarketing call on its Oakland cellular telephone number, (510) 351-XXXX, from, or on behalf of, Pivotal Payments.

67. The caller ID showed the telephone call was from (828) 548-6764.

68. When Plaintiff answered the telephone call, there was again a lengthy pause and a click followed by silence before any voice came on

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