Bridge v. Credit One Fin., Corp.

• Decision Date: 23 February 2018
• Docket Number: Case No. 2:14-cv-1512-LDG (NJK)
• Citation: 294 F.Supp.3d 1019
• Parties: William BRIDGE, individually and on behalf of all others similarly situated, Plaintiff, v. CREDIT ONE FINANCIAL, a Nevada Corporation, d/b/a Credit One Bank, N.A., Defendant.
• Court: U.S. District Court — District of Nevada

294 F.Supp.3d 1019

William BRIDGE, individually and on behalf of all others similarly situated, Plaintiff,

v.CREDIT ONE FINANCIAL, a Nevada Corporation, d/b/a Credit One Bank, N.A., Defendant.

Case No. 2:14-cv-1512-LDG (NJK)

United States District Court, D. Nevada.

Signed February 23, 2018

Filed February 26, 2018

Adam J. Levitt, DiCello Levitt & Casey LLC, Chicago, IL, Diane T. Zilka, Kyle McGee, Grant & Eisenhofer P.A., Wilmington, DE, John B. Shook, Leonard H. Stone, Shook & Stone, Chtd., Las Vegas, NV, Stephen F. Taylor, Lemberg Law LLC, Stamford, CT, for Plaintiff.

Becca J. Wahlquist, Snell & Wilmer LLP, Los Angeles, CA, Patrick J. Reilly, Holland & Hart LLP, R. Calder Huntington, MGM Resorts International, Las Vegas, NV, for Defendant.

ORDER

Lloyd D. George, United States District Judge

In his Amended Complaint, William Bridge alleges that Credit One violated the Telephone Consumer Protection Act when, without his prior express consent, it used an auto-dialer to place calls to his cellular telephone number from around January to March 2014.

On January 18, 2014, Bridge used his cell phone to contact Credit One regarding his mother's account. He alleges he did so without her knowledge or consent, that he talked with a Credit One representative, and that he advised that he was making the call in relation to his mother's account. Credit One counters that its records establish that Bridge called its Automated Account Information number, but used his mother's account information to access its systems. In either event, Bridge alleges and Credit One does not dispute that it captured his cell phone number and associated that number with his mother's account. When his mother's account became delinquent, Credit One began calling Bridge's cell phone.

Credit One moves to stay (ECF No. 109) and compel arbitration (ECF No. 110) arguing that, because Bridge used his mother's account information to contact Credit One, he should be bound by the arbitration clause in the Cardholder Agreement his mother signed. Alternatively, Credit One moves to strike the class claims (ECF No. 111) and disqualify Bridge as a class representative (ECF No. 112), arguing that Bridge's conduct not only establishes that his claim is highly unique but that he is an improper class representative. Credit One also asks that Bridge's Nevada Deceptive Trade Practices Act claim be dismissed (ECF No. 113). Bridge opposes each motion.

Bridge has moved to certify a class, appoint a class representative, and appoint class counsel (ECF No. 150). Credit One opposes the motion.¹

Background

Bridge's mother was a Credit One account holder. Credit One's standard Visa/MasterCard Cardholder Agreement, Disclosure Statement and Arbitration Agreement ("cardholder agreement") provides the following:

COMMUNICATIONS: You are providing express written permission authorizing Credit One Bank or its agents to contact you at any phone number (including mobile, cellular/wireless, or similar devices) or email address you provide at anytime, for any lawful purpose.... Phone numbers and email addresses you provide include those you give to us, those from which you contact us or which we obtain through other means.

The Cardholder Agreement also contains the following arbitration provision:

Claims subject to arbitration include not only Claims made directly by you, but also Claims made by anyone connected with you or claiming through you, such as a co-applicant or authorized user of your account, your agent, representative or heirs, or a trustee in bankruptcy.

The cardholder agreement's arbitration provision further states:

Claims subject to arbitration include, but are not limited to, disputes relating to the establishment, terms, treatment, operation, handling, limitations on or termination of your account; any disclosures or other documents or communications relating to your account; any transactions or attempted transactions involving your account, whether authorized or not: billing, billing errors, credit reporting, the posting of transactions, payment or credits, or collections matters relating to your account.

In January 2014, Bridge's mother underwent surgery and Bridge learned that her prognosis was not favorable. In addition to the emotional impact of his mother's condition on Bridge, he was also concerned that he had no understanding of his mother's finances in the event that she passed away. Bridge stayed in his mother's house while she was in the hospital. During that time, he discovered a folder in which his mother kept her bills. On January 18, 2014, Bridge called his mother's creditors using the toll-free numbers he found on her bills. He made the calls from her home, using his mobile phone, while she was in the hospital. He did not discuss making these calls with his mother, received neither her consent nor her instruction to do so, and did so without her knowledge.

Credit One's toll-free number connects its customers to its "Automated Account Information" system. According to Credit One's records, Bridge reached its IVR technology which allows customers to interact with its systems using a telephone keypad. The records further establish that Bridge performed a "Full" IVR authentication of his mother's account. That is, in response to an automated message requesting the customer to "enter your sixteen digit card number," Bridge entered his mother's account number that he found on her billing statement. Next, in response to an automated message that the customer "enter the last four digits of your social security number," Bridge entered the last four digits of his mother's social security number. Bridge then received an automated instruction to "[p]lease stay on the line while we access your account." As Bridge had entered the validation information for his mother's account, he was able to access information related to his mother's account, including the account balance, delinquency status, and payment due dates.

Upon successful authentication of the account and partial social security information, Credit One associated the phone number Bridge had used to contact it with his mother's account. Bridge's mother's account became delinquent, and Credit One made calls to Bridge's mobile phone to recover the debt. Bridge alleges that over 100 such calls were made to his mobile phone number between January 2014 and March 2014. On or about March 18, 2014, Bridge instructed a Credit One representative to stop calling his cell phone, and no subsequent calls were made.

Analysis—Nevada Deceptive Trade Practices Act Claim

Credit One's motion to dismiss the NDTPA claim, brought pursuant to Fed. R. Civ. P. 12(b)(6), challenges whether Bridge's complaint states "a claim upon which relief can be granted." In ruling upon this motion, the court is governed by the relaxed requirement of Rule 8(a)(2) that the complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." As summarized by the Supreme Court, a plaintiff must allege sufficient factual matter, accepted as true, "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), Landers v. Quality Communications, Inc. , 771 F.3d 638, 641 (9th Cir. 2015). Nevertheless, while a complaint "does not need detailed factual allegations, a plaintiffs 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, 127 S.Ct. 1955, Landers , 771 F.3d at 642. In deciding whether the factual allegations state a claim, the court accepts those allegations as true, as " Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations." Neitzke v. Williams , 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Further, the court "construe[s] the pleadings in the light most favorable to the nonmoving party." Outdoor Media Group, Inc. v. City of Beaumont , 506 F.3d 895, 900 (9th Cir. 2007).

However, bare, conclusory allegations, including legal allegations couched as factual, are not entitled to be assumed to be true. Twombly , 550 U.S. at 555, 127 S.Ct. 1955, Landers , 771 F.3d at 641. "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679, 129 S.Ct. 1937. Thus, this court considers the conclusory statements in a complaint pursuant to their factual context.

To be plausible on its face, a claim must be more than merely possible or conceivable. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’–'that the pleader is entitled to relief." Id. (citing Fed. R. Civ. P. 8(a)(2) ). Rather, the factual allegations must push the claim "across the line from conceivable to plausible." Twombly , 550 U.S. at 570, 127 S.Ct. 1955. Thus, allegations that are consistent with a claim, but that are more likely explained by lawful behavior, do not plausibly establish a claim. Id. at 567, 127 S.Ct. 1955.

As relevant to Bridge's NDTPA claim, "[a] person engages in a "deceptive trade practice" when in the course of his or her business or occupation he or she knowingly: ... 3. Violates a state or federal statute or regulation relating to the sale or lease of goods or services."

Nev. Rev. Stat. 598.0923(3). Bridge argues that the TCPA is such a "statute," as 47 U.S.C. § 227(a)(4) defines "telephone solicitation" as meaning "the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property,...