Cour v. Life360, Inc.

• Decision Date: 28 July 2016
• Docket Number: Case No. 16-cv-00805-TEH
• Court: U.S. District Court — Northern District of California
• Parties: TERRY COUR II, Plaintiff, v. LIFE360, INC., Defendant.

TERRY COUR II, Plaintiff, v. LIFE360, INC., Defendant.

Case No. 16-cv-00805-TEH

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

July 28, 2016

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

This matter came before the Court on July 25, 2016, on Defendant Life360, Inc.'s motion to dismiss Plaintiff Terry Cour II's first amended complaint. After carefully considering the parties' written and oral arguments, the Court GRANTS the motion for the reasons discussed below.¹

BACKGROUND

Plaintiff Terry Cour II received the following unwanted text message, sent from "890-50," on February 13, 2016: "TJ, check this out! lf360.co/i/g2a5iJaTBOO5." First Am. Compl. ("FAC") ¶ 35 & Fig. 12. He responded with, "Who is this?" and received another text stating, "I'm sorry, but we weren't able to understand your message. Please reply YES, NO, or HELP." Id. at Fig. 12. Cour alleges that he received this message from Defendant Life360, Inc., id. ¶ 35, which operates a mobile application that allows users to communicate with and see the location of their friends and family members. Id. ¶ 14. He is not and has never been a Life360 user, and he "has never downloaded the Life360 app onto any device." Id. ¶ 36.

Cour alleges that the Life360 application works as follows: After downloading the Life360 application and creating an account, users are asked, "Want to see others on your map?" Id. ¶ 17 & Fig. 3. Users who click on the "Yes" button are asked permission for Life360 to access their contacts. Id. ¶ 18 & Fig. 4. Users who allow permission are then brought to a screen to "Add Member[s]," with certain "Recommended" members pre-selected by "an algorithm created by Defendant." Id. ¶ 19 & Fig. 5. Each "Recommended" contact appears with a checkmark next to it. Id. at Fig. 5. At the bottom of this screen is an "Invite" button showing the number of selected invitations in parentheses. Id. Users who press the "Invite" button are then brought to a new screen that says, "Great! Want to know when they join?" Id. ¶ 20 & Fig. 6. At no time does Life360 indicate to users how invitations will be sent, nor does Life360 inform users of when invitations will be sent. Id. ¶¶ 3-4, 24. Instead, Life360 "has full control over the content of the text message, whether a text message will be sent and, and [sic] - if a I [sic] text message is to be sent - when, subsequent to the user pressing the 'invite' button, it will be sent." Id. ¶ 24.

Cour seeks to represent a class of "[a]ll persons in the United States who received one or more text message calls from (or on behalf of) Life360, Inc." Id. ¶ 39. The first amended complaint brings two claims: one for violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, and a second for violation of California's unfair competition law ("UCL"), Cal. Bus. & Prof. Code §§ 17200, et seq. Life360 now moves to dismiss both claims.

LEGAL STANDARD

Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) when a plaintiff's allegations fail "to state a claim upon which relief can be granted." To survive a motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility does not equate to probability, but it requires "more than a sheer possibilitythat a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility 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. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

In ruling on a motion to dismiss, courts must "accept all material allegations of fact as true and construe the complaint in a light most favorable to the non-moving party." Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir. 2007). However, courts are not "bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

DISCUSSION

I. Article III Standing

Before addressing the merits of Cour's claims, the Court must first consider Life360's argument that Cour has failed to allege a concrete injury, which, if true, would require that the case be dismissed for lack of standing.² Article III standing requires that a plaintiff "have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The "injury in fact must be both concrete and particularized." Id. at 1548. The Supreme Court recently made clear that, "Article III standing requires a concrete injury even in the context of a statutory violation," and a plaintiff does not "automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right." Id. at 1549. That is, a plaintiff cannot "allege a bareprocedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III." Id.

Here, however, Cour has not simply alleged a procedural violation; instead, he relies on an allegation that he was harmed because Life360 invaded his privacy. FAC ¶ 53. On the standing question, this case is indistinguishable from Meyer v. Bebe Stores, Inc. , in which the plaintiff alleged that she received a single unsolicited text message from the defendant and "alleged an invasion of privacy." No. 14-cv-00267-YGR, 2015 WL 431148, at *1-2 (N.D. Cal. Feb. 2, 2015). The court held that this was sufficient to meet Article III standing requirements even though the plaintiff did "not allege she incurred any carrier charges for the specific text message at issue." Id. at *2.

Cour relies on two other cases that have also found concrete injuries based on alleged violations of the TCPA: Rogers v. Capital One Bank (USA), N.A., No. 1:15-CV-4016-TWT, 2016 WL 3162592, at *2 (N.D. Ga. June 7, 2016) (finding concrete injury where the plaintiffs alleged that "Defendant made unwanted phone calls to their cell phone numbers"), and Booth v. Appstack, Inc., No. C13-1533JLR, 2016 WL 3030256, at *5 (W.D. Wash. May 24, 2016) (finding concrete injury in the form of "waste[d] time answering or otherwise addressing widespread robocalls"). Life360 attempts to distinguish these cases on grounds that the alleged conduct there was more pervasive - "widespread robocalls" in Booth, id., and "at least 40 calls" to one plaintiff's cell phone in Rogers, 2016 WL 3162592, at *1. However, such distinctions go only to the extent of the injury, not whether there was a concrete injury at all. Indeed, in Rogers, another plaintiff allegedly received only two unwanted calls, id., and the Eleventh Circuit case relied on by the court found standing where the plaintiff allegedly received only one unwanted fax message, Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1251 (11th Cir.2015). In light of these authorities, the Court rejects Life360's argument that Cour has failed to allege a concrete injury sufficient to confer Article III standing.

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II. TCPA Claim

The Court next considers whether Cour has stated a claim under the TCPA, which makes it unlawful "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 . . . cellular telephone service." 47 U.S.C. § 227(b)(1)(A)(iii). A text message is a "call" within the meaning of this statute. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009).

Life360 argues that Cour has failed to state a TCPA claim because his allegations do not establish that Life360 "made" the unwanted call or used an "automatic telephone dialing system." 47 U.S.C. § 227(b)(1)(A). The Federal Communications Commission ("FCC") recently examined these and other issues in In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 F.C.C. Rcd. 7961 (2015). The FCC explained that it looks to "the totality of the facts and circumstances surrounding the placing of a particular call to determine: 1) who took the steps necessary to physically place the call; and 2) whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of the TCPA." Id. ¶ 30.

Of particular relevance to this case, the FCC considered whether two companies, TextMe and Glide, "make" calls as defined by the TCPA. The FCC concluded that Glide "makes" calls when it "automatically sends invitational texts of its own choosing to every contact in the app user's contact list with little or no obvious control by the user." Id. ¶ 35. Under these circumstances, the FCC found, "the app user plays no discernible role in deciding whether to send the invitational text messages, to whom to send them, or what to say in them." Id.

TextMe, by contrast, does not automatically send invitational texts. Instead, before an invitational text is sent, "[a]n app user must: (1) tap a button that reads 'invite your friends'; (2) choose whether to 'invite all their friends or [] individually select contacts';and (3) choose to send the invitational text message by selecting another button." Id. ¶ 36. The FCC concluded that:

These affirmative choices by the app user lead us to conclude that the app user and not TextMe is the maker of the invitational text message. While we agree with commenters that TextMe's control of the content of the invitational text message is a reason for concern, and take into account the goals and purposes of the TCPA, we conclude

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