MacDonald v. Hotchkin ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Darren MacDonald, No. CV-20-00138-PHX-SMB 10 Plaintiff, ORDER 11 v. 12 Brian Gubernick PLLC, et al., 13 Defendants. 14 15 Pending before the Court is Defendants Brian Gubernick, PLLC and Brian 16 Gubernick’s Motion to Dismiss First Amended Class Action Complaint. (Doc. 70.) 17 Plaintiff, Darren MacDonald, filed an Opposition to Defendants’ Motion to Dismiss and 18 Cross-Motion to Amend. (Doc. 75.) Defendants filed a Reply to Plaintiff’s opposition and 19 a Response to Plaintiff’s Cross-Motion to Amend. (Doc. 80.) Plaintiff filed a Reply in 20 support of his Cross-Motion to Amend. (Doc. 81.) Defendants requested oral argument, 21 but the Court declines to hold oral argument finding that it is unnecessary. See LRCiv 22 7.2(f). The Court has reviewed the pleadings and will deny Defendants’ Motion to Dismiss 23 and grant Plaintiff’s Cross-Motion to Amend. 24 I. BACKGROUND 25 Plaintiff filed this class action suit against Defendants alleging that Defendants 26 violated the Telephone Consumer Protection Act (“TCPA”) by making unsolicited, 27 autodialed calls to consumers. (Doc. 29.) Plaintiff’s First Amended Complaint (“FAC”) 28 alleges that on January 4, 2018, Plaintiff received a call on his cell phone from Christine 1 Hotchkin, an agent of Defendants’ business. (Id. ¶ 34.) The call was made using a “Mojo 2 Dialer based on a lead [Defendants’ business] provided to Hotchkin.” (Id. ¶ 35.) When 3 Plaintiff answered the call, “he noticed that it began with a pause, which typically indicates 4 the use of an autodialer.” (Id. ¶ 36.) Hotchkin was calling to offer real estate brokerage 5 services to Plaintiff. (Id. ¶ 37.) Plaintiff told Hotchkin that he was not interested and that 6 he wanted his number removed from her list. (Id. ¶ 38.) Plaintiff had not consented to 7 receive calls from Defendants. (Id. ¶ 39.) Plaintiff alleges, that calls were made to him 8 and other class members “using equipment that, upon information and belief, had the 9 capacity to store or produce telephone numbers to be called, using a random or sequential 10 number generator.” (Id. ¶ 50.) 11 On March 9, 2021, the Court granted Defendants’ request to stay proceedings in 12 this case until the U.S. Supreme Court issued a ruling in Facebook, Inc. v. Duguid. (Doc. 13 69.) The Supreme Court issued an opinion in that case on April 1, 2021. See Facebook, 14 Inc. v. Duguid, 141 S.Ct. 1163 (2021). Shortly after the Supreme Court issued its opinion, 15 Defendants filed this Motion to Dismiss contending that Plaintiff’s FAC must be dismissed 16 because Plaintiff did not plead facts that the Mojo Dialer uses a random or sequential 17 number generator. (Doc. 70 at 2.) 18 II. ANALYSIS 19 Defendants’ Motion to Dismiss argues that Plaintiff’s FAC must be dismissed 20 pursuant to Rule 12(b)(6) based on the Supreme Court’s definition of an automatic 21 telephone dialing system in Duguid. (Doc. 70.) In its response to the Motion to Dismiss, 22 Plaintiff does not argue that dismissal is not appropriate based on Duguid, but instead 23 argues that the Court should grant him leave to file his Second Amended Complaint 24 “SAC”), which would moot Defendants’ motion. (Doc. 75 at 1.) In their Reply and 25 Response in Opposition to Plaintiff’s Cross-Motion to Amend, Defendants argue that 26 Plaintiff should not be allowed to amend his FAC because Defendants’ “Mojo dialing 27 system” cannot qualify as an auto dialer under Duguid. (Doc. 80 at 3.) 28 A. Plaintiff’s TCPA Claim after Duguid 1 In the Duguid opinion, the Supreme Court held that “under the TCPA, a device must 2 have the capacity either to store a telephone number using a random or sequential number 3 generator, or to produce a telephone number using a random or sequential number 4 generator.” 141 S.Ct. at 1164. However, the Supreme Court refused to go so far as to 5 include any equipment that merely stores and dials telephone numbers in its definition of 6 an autodialer. Id. at 1171. Yet, a footnote of the opinion recognized that a device may still 7 constitute an autodialer under the TCPA if it randomly dials numbers from a preproduced 8 list. Id. at 1172 n. 7 (“For instance, an autodialer might use a random number generator to 9 determine the order in which to pick phone numbers from a preproduced list. It would then 10 store those numbers to be dialed at a later time.”). 11 Defendants argue that the Duguid opinion footnote is dicta and that the Court should 12 ignore it for the purposes of ruling on this motion. (Doc. 80 at 4–6.) In support of this 13 assertion, Defendants rely upon caselaw from outside of the Ninth Circuit. (Id. at 6.) 14 However, as Plaintiff points out, in the Ninth Circuit, “our precedent requires that we give 15 great weigh to the dicta of the Supreme Court.” Couer D’Alene Tribe of Idaho v. 16 Hammond, 384 F.3d 674, 683 (9th Cir. 2004). 17 When taking the Duguid footnote into account, both Plaintiff’s FAC and proposed 18 SAC state a valid claim for relief under the TCPA. The SAC alleges that the Mojo Dialer 19 includes a “Power Dialer” that can automatically call an entire list of leads. (Doc. 75-2 ¶ 20 14.) The SAC also alleges that the Mojo Dialer “can import lists of leads, with associated 21 phone numbers” and “can then generate sequential numbers and store these sequential 22 numbers in a database, to indicate the automatic dialing order for leads.” (Id. ¶ 16.) 23 Additionally, the SAC alleges the system can automatically call through a list of leads in 24 sequential order. (Id. ¶ 18.) Bolstering these allegations, Plaintiff notes that when he 25 answered the call, he noticed that it began with a pause, “which typically indicates the use 26 of an autodialer.”1 (Id. ¶ 36.) These allegations are sufficient to state a cause of action 27 1 Courts in this district recognize that a “telltale” pause after a plaintiff picks up a call 28 makes it plausible for pleading purposes that an autodialer, as defined by the TCPA, was used. See Winters v. Quicken Loans Inc., No. CV-20-00112-PHX-MTL, 2020 WL under the TCPA, even after Duguid. 2 B. Leave to Amend 3 Allowing Plaintiff to amend his FAC will not prejudice Defendants at this early 4|| stage in litigation, and amendment would not be futile because the Court has determined || that the SAC will plausibly state a claim for relief under the TCPA. Eminence Cap., LLC || v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (noting that—absent prejudice or a □□ strong showing of any of the factors outlined in Forman v. Davis, 371 U.S. 178, 182 8 || (1962)—there is a strong presumption under Rule 15(a) in favor of granting leave to 9|| amend). Thus, the Court will grant Plaintiff's Cross-Motion to Amend. 10 Within fourteen (14) days from the date of entry of this Order, Plaintiff may submit 11 || his proposed SAC. Plaintiff must clearly designate on the face of his amended complaint that it is the “Second Amended Complaint.” He is reminded that it supersedes the original 13 || complaint, see Lacey v. Maricopa Cty., 693 F.3d 896 (9th Cir. 2012), and it must be || complete in itself and “must not incorporate by reference any part of the preceding 15} pleading, including exhibits,” LRCiv 15.1. 16] I. CONCLUSION 17 Accordingly, 18 IT IS ORDERED granting Plaintiff's Cross-Motion to Amend. (Doc. 75.) 19 IT IS FURTHER ORDERED denying as moot Defendants’ Motion to Dismiss. 20}} (Doc. 70.) 21 IT IS FURTHER ORDERED that Plaintiff shall file its proposed SAC within 22 || fourteen (14) days of the entry of this order. 23 Dated this 8th day of November, 2021. 24 — > 2 26 Aonorable Susan M; Brnovich 37 United States District Judge 28 || 5292002, at *3 (D. Ariz. Sept. 4, 2020); see also McCullough v. Maximum Title Loans LLC, No. CV-19-00717-PHX-JJT, 2019 WL 3933754, at *3 (D. Ariz. Aug. 20, 2019). -4-