Couser v. Pre-Paid Legal Servs., Inc.

• Decision Date: 16 January 2014
• Docket Number: Case No. 12–CV–2575–LAB–WVG.
• Citation: 994 F.Supp.2d 1100
• Court: U.S. District Court — Southern District of California
• Parties: Carrier COUSER, Plaintiff, v. PRE–PAID LEGAL SERVICES, INC. d/b/a Legal Shield; Terry Frick; and CallFire Inc., Defendant.

994 F.Supp.2d 1100

Carrier COUSER, Plaintiff,

v.PRE–PAID LEGAL SERVICES, INC. d/b/a Legal Shield; Terry Frick; and CallFire Inc., Defendant.

Case No. 12–CV–2575–LAB–WVG.

United States District Court, S.D. California.

Jan. 16, 2014.

Abbas Kazerounian, Matthew Michael Loker, Kazerounian Law Group, APC, Costa Mesa, CA, Joshua Swigart, Robert Lyman Hyde, Hyde & Swigart, San Diego, CA, Todd M. Friedman, Law Offices of Todd M. Friedman, P.C., Beverly Hills, CA, for Plaintiff.

Shannon Z. Petersen, Sheppard Mullin Richter and Hampton, James A. D'Ambrosio, Stark and D'Ambrosio LLP, San Diego, CA, Thomas B. Snyder, Timila S. Rother, Crowe & Dunlevy, Oklahoma City, OK, Michael L. Turrill, Arent Fox, LLP, Los Angeles, CA, Adam D. Bowser, Michael B. Hazzard, Arent Fox LLP, Washington, DC, for Defendants.

ORDER RE: CALLFIRE'S MOTION TO DISMISS

LARRY ALAN BURNS, District Judge.

This is a Telephone Communications Protection Act case in which Couser accuses Defendants of making approximately 40 unsolicited and prerecorded calls to her cell phone. Now before the Court is CallFire's motion to dismiss. CallFire's basic argument is that it's an “intermediate software provider” that doesn't itself control the content, destination, or timing of calls, and therefore can't be liable under the TCPA. The implication of this, of course, is that if there are culprits in this case, they are Legal Shield and Frick.

I. Legal Standard

A 12(b)(6) motion to dismiss for failure to state a claim challenges the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). The Court must accept all factual allegations as true and construe them in the light most favorable to Couser. Cedars–Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir.2007). To defeat CallFire's motion to dismiss, Couser's factual allegations needn't be detailed, but they must be sufficient to “raise a right to relief above the speculative level....” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That is, “some threshold of plausibility must be crossed at the outset” before a case can go forward. Id. at 558, 127 S.Ct. 1955 (internal quotations omitted). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

While the Court must draw all reasonable inferences in Couser's favor, it need not “necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.2003) (internal quotations omitted). In fact, the Court does not need to accept any legal conclusions as true. Iqbal, 129 S.Ct. at 1949. A complaint does not suffice “if it tenders naked assertions devoid of further factual enhancement.” Id. (internal quotations omitted). Nor does it suffice if it contains a merely formulaic recitation of the elements of a cause of action. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

II. Factual Background

This isn't a complex case. Legal Shield is a company that provides plans, or contracts, for legal services. CallFire is a company that provides software enabling its customer companies to send voice messages to a wide audience. That's the Court's description of CallFire, at least. Couser says it “provides voice and text connectivity”; CallFire more or less acceptsthat and says it “provides its customers various web-based applications that integrate communications services and other software services whereby its customers can utilize CallFire's software platform to develop and send their own voice broadcasts to recipients of the customers' choosing.” (FAC ¶ 16; Mot. at 1.) Couser has an incentive to maximize CallFire's responsibility for the calls at issue; CallFire has the opposite incentive.

In any event, Legal Shield used CallFire to promote its business, and Couser alleges that she received approximately 40 unsolicited promotional calls that were made with an automatic telephone dialing system and utilized an artificial or prerecorded voice. (FAC ¶ 30.) This is the most significant allegation:

Beginning in June 2012, at the express instruction and guidance of Legal Shield, through Legal Shield's employee and representative, Frick, Defendants began contacting Plaintiff for the purpose of soliciting Plaintiff's business, on her cellular telephone by way of an “automatic telephone dialing system,” as defined by 47 U.S.C. § 227(a)(1) using an “artificial or prerecorded voice” as prohibited by 47 U.S.C. § 227(b)(1)(A). (FAC ¶ 26.)

To be clear—because the relevant TCPA statute contains four distinct prohibitions—Couser is alleging a violation of 47 U.S.C. § 227(b)(1)(A)(iii). (FAC ¶ 26; Opp'n Br. at 2.) This 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.”

III. Discussion

CallFire makes a number of arguments favoring dismissal of Couser's claims against it. The Court will try to tease those arguments out and address them in sequence.

A. Couser Doesn't Allege That CallFire Called Her.

CallFire's first argument seems to be that Couser has failed to allege that CallFire even called her. If that's true, then naturally Couser's TCPA claims fail, because they require an actual call. 47 U.S.C. § 227(b)(1)(A).

The Court disagrees with CallFire. The allegations against it are thin, to be sure. Couser says CallFire is a California company “that provides voice and text connectivity” and “advertises and engages in text messaging through the use of automated dialers and prerecorded messages,” which doesn't speak to its actions in this case at all. (FAC ¶¶ 16, 18.) And then it says “Defendants began contacting Plaintiff for the purpose of soliciting Plaintiff's business,” which CallFire argues isn't an allegation with respect to it. (FAC ¶ 26.) It essentially is, though. The whole allegation, quoted above, is that “at the express instruction and guidance of Legal Shield, through Legal Shield's employee and representative, Frick, Defendants began contacting Plaintiff for the purpose of soliciting Plaintiff's business, on her cellular telephone....” Considering that there are only three Defendants in this case—Legal Shield, Frick, and CallFire—this sentence only makes sense if “Defendants” refers to CallFire. That is, the clear meaning of this allegation is that Legal Shield, through Frick, commissioned CallFire to contact Couser. Thus, the Court isn't troubled by the fact that, as CallFire puts it, “Plaintiff never makes an allegation specifically as to CallFire.” (Mot. at 5.) The allegation is adequately there in ¶ 26 of Couser's complaint.

B. CallFire Didn't Call Couser, Anyway

CallFire's next argument is that, as a matter of fact, it isn't the party that called Couser, and this turns on a rather technical argument about how its service works that is most likely beyond the scope of a motion to dismiss. In any event, the Court is inclined to disagree with it.

CallFire's motion to dismiss employs rather cagey language to describe its responsibility for the unwanted calls Couser allegedly received. Initially, this language deflects responsibility and places on its customers. For example, customers use CallFire's “software platform to develop and send their own voice broadcasts.” (Mot. at 1.) CallFire “provides its customers connectivity to transmit their own messages to the recipients they selected and at the time of their choosing.” (Mot. at 2.) The clear implication here is that CallFire just provides software while its customers actually pull the trigger and make telephone calls with that software.

But CallFire also describes its service in a way that suggests it actually places the calls. For example, its Terms of Service notifies customers, “You represent and warrant that the owners of the phone numbers you provide to CallFire, to which outbound messages and broadcasts are transmitted through the Service....” (Mot. at 2.) It also says, “You further agree that CallFire is, under no circumstances, responsible for the contents and/or accuracy of your messages or broadcasts and CallFire will only transmit them....” CallFire argues later in its motion that its role “is akin to a common carrier or software provider that simply receives instructions and transmits based on those instructions without alteration.” (Mot. at 6.) This all gives the impression that CallFire is the caller, or certainly close enough to the caller.

Whatever the true and exact relationship between CallFire and its customers is, the Court finds it to be too fact-intensive, and certainly too disputed, to be resolved at the motion to dismiss phase in CallFire's favor. By CallFire's own words, it receives numbers from its customers and it transmits or delivers a recorded message to those numbers. That essentially makes it a caller, at least by some common-sense definition of the term, even if the customers are the chief architect of the calls.

C. The TCPA Wasn't Intended for CallFire

CallFire's last argument, and certainly its most substantive, is that Congress's intent, as well as numerous FCC rulings, make it very clear the TCPA isn't intended to police middlemen like CallFire that, even if they make calls in some technical sense, are commissioned to make them by another entity and bear little responsibility for the timing, content, or recipients of those calls. Couser tries to argue that this is an attempt to...