Jance v. Homerun Offer LLC
| Decision Date | 29 July 2021 |
| Docket Number | CV-20-00482-TUC-JGZ |
| Parties | Josh M. Jance, Plaintiff, v. Homerun Offer LLC, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
HONORABLE JENNIFER G. ZIPPS, UNITED STALES DISTRICT JUDGE.
Plaintiff brings this action against Defendants Homerun Offers LLC and All Star Investments alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. Plaintiff alleges Homerun Offer made 29 calls to Plaintiff in violation of the Act and alleges All Star Investments is vicariously liable for Homerun Offer's phone calls. Pending before the Court is Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint (SAC) for failure to state a claim and lack of personal jurisdiction over Defendant All Star Investments. (Doc. 19.) Plaintiff filed a Response (Doc. 22), and Defendants filed a Reply. (Doc. 23.) Defendants also filed a Notice of Supplemental Authority, to which Plaintiff responded. (Doc. 25.) For the following reasons, the Court will grant in part and deny in part Defendants' motion to dismiss.
Plaintiff's SAC contains the following allegations. Plaintiff is a resident of Tucson, Arizona. (Doc. 16, ¶ 18.) Between January 16 and July 6, 2020, Plaintiff received 29 calls on his cell phone from a caller purporting to represent a “local investor, ” and inquiring if Plaintiff had any interest in selling his property. (Doc. 16, ¶¶ 11-12, 18.) Each call came from a 520-402-10xx number, with the last two digits ranging from 17-29. (Id.) For each call he answered, Plaintiff alleges that he heard “a brief hesitation of several seconds” before the caller spoke to him. (Id. at 19.) After hearing the content of the call, which Plaintiff describes as “a generic and cursory inquiry” into purchasing his house, Plaintiff would give a standard response that included requesting to be placed on the company's do-not-call list. (Id. ¶¶ 11, 15-16.) Plaintiff also alleges that “at no point” did the caller specifically identify on whose behalf he was calling or provide company contact information. (Id. ¶¶ 16-17.) Plaintiff alleges that on those occasions when he called back the numbers of the caller shown on his phone, an automated answering system played an identical message for all of the different phone numbers.[1] (Id. ¶ 75.)
When Plaintiff searched the phone numbers on www.whitepages.com, the website categorized the phone numbers as “Non-Fixed VoIP, ” or Voice over Internet Protocol. (Id. ¶¶ 20-21.) VoIP is “a category of hardware and software that enables people to use the internet as the transmission medium for telephone calls, sending voice data in packets using internet protocols (IP) rather than by traditional circuit transmissions of the [public switched telephone network] PSTN.” (Id. ¶ 21.)[2] When Plaintiff searched the phone numbers on www.reportedcalls.com the website attributed the telephone number prefix 520-402 to “Location: Arizona” and “Rate Center Benson.” (Id. ¶ 23.) Plaintiff alleges that Defendants do not currently, nor during the time the calls were made, operate or contract with a call center in Benson, Arizona. (Id. ¶ 24.) Plaintiff also alleges that because the calls came from what he claims is a non-existent call center in Benson, the 520-402-10xx telephone numbers were “spoofed, ”[3] which would require specialized telephone equipment like an automatic telephone dialing system (ATDS). (Id. ¶¶ 27-28.)
On the sixth call, Plaintiff inquired into what company the caller worked for, and the caller replied, “Homerun Offer.” (Id. ¶ 52.) Plaintiff found the website homerunoffer.com, which listed a company address in Las Vegas, Nevada. (Id. ¶ 60.) Plaintiff then located the business on the State of Nevada Corporation Commission (NCC) website, which listed Ryan Pineda as Homerun Offer's registered agent. (Id. ¶¶ 62-63.) When Plaintiff searched the NCC website for “Ryan Pineda, ” he found All Star Investments also a Las Vegas company. (Id. ¶ 64.) Plaintiff later found a September 24, 2019 Instagram post under the account “ryanpinedashow, ” which featured a picture of a man whom Plaintiff presumes to be Ryan Pineda, wearing a University of Arizona T-shirt. The post reads: (Id. ¶ 70; Doc. 22, Ex. B.) Plaintiff also searched the Pima County Recorder's Office (PCRO) and found “no property transactions” for Ryan Pineda or Homerun Offer. (Doc. 16, ¶¶ 65-67.) But the database did show six “property purchases” for All Star Investments made between October 2019 and June 2020. (Id. ¶ 68.) Plaintiff concludes that for some or all of the six property purchases made by All Star Investments between October 2019 and June 2020, the initial contact with the other parties to those transactions came about as a direct result of the telemarketing activities of Homerun Offer. (Id. ¶ 71.) Plaintiff began receiving telemarketing calls from Homerun Offer less than four months after the Instagram post. (Id. ¶ 69.) All Star Investments closed their first property purchase in Pima County 16 days after the Instagram post. (Id. ¶ 72.)
Plaintiff attempted to serve process on Homerun Offer at the NCC-listed address. The landlord informed Plaintiff that Homerun Offer had moved and provided Plaintiff with Homerun's new phone number: 702-381-9317. (Id. ¶¶ 80-83, 89-90.) When Plaintiff called the number, the automated recording was identical to the one attributed to Homerun Offer, but the message identified the business as “Forever Home Realty.” (Id. ¶¶ 91-92, 104.) Plaintiff found the website foreverhomelv.com, which included a listing for and picture of Ryan Pineda. (Id. ¶ 94.) Plaintiff also searched the NCC database for Forever Home and discovered Ryan Pineda was listed as Forever Home's registered agent. (Id. ¶ 95.)
Plaintiff alleges that All Star Investments has actual authority over, and can be held vicariously liable for Homerun Offer's phone calls to Plaintiff because Ryan Pineda is the President and CEO[4] of both Homerun Offer and All Star Investments, and Pineda controls their actions as well as non-party Forever Home Realty as an affiliate company. (Id. ¶¶ 107-110, 112.) Plaintiff specifically alleges that All Star Investments has actual authority over the telemarketing activities of Homerun Offer. (Id. ¶ 111.)
On August 25, 2020, Plaintiff filed this lawsuit in Pima County Superior Court. (Doc. 1-3, p. 27.) Defendants removed the action to this Court. (Doc. 1.) Plaintiff filed his SAC on December 3, 2020. (Doc. 16.) In the SAC, Plaintiff alleges that the calls by Home Run Offer violated § 227(b) and § 227(c) of the TCPA.
In the pending motion, Defendants seek dismissal of the SAC under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(2). (Doc. 19.)
I. Motion to Dismiss for Failure to State a Claim
A. Applicable Law
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted “[f]actual allegations must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and internal quotation marks omitted). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's 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.” Id. at 555 (citations and internal quotation marks omitted). “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 563. Dismissal is appropriate under Rule 12(b)(6) if the facts alleged do not state a claim that is “plausible on its face.” Id. at 569. “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 (2009). When assessing the sufficiency of the complaint, all well-pleaded factual allegations are taken as true and construed in the light most favorable to the nonmoving party, Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018), and all reasonable inferences are to be drawn in favor of that party as well. Caltex Plastics, Inc. v. Lockheed Martin Corp., 824 F.3d 1156, 1159 (9th Cir. 2016).
To state a claim under § 227(b) of the TCPA, Plaintiff must plausibly allege: (1) Defendants called a cellular telephone number; (2) with an automatic telephone dialing system (ATDS); and (3) without recipient's prior express consent. 47 U.S.C. § 227(b)(1); Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012). Defendants argue Plaintiff fails to state a claim for a violation of § 227(b) because Plaintiff does not allege facts sufficient to show that Defendants used an ATDS to call Plaintiff.
An ATDS is “equipment that has the capacity-(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial[5] such numbers.” § 227(a)(1); see Facebook, Inc. v Duguid, 141 S.Ct. 1163, 1170 (2021) (“Congress' definition of an [ATDS] requires that in all cases, whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator.”). In determining whether a defendant called with an ATDS, the central issue is not...
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