Hall v. Smosh Dot Com, Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KRISTEN HALL, individually No. 2:21-cv-01997-JAM-AC and on behalf of all others 12 similarly situated, 13 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 14 v. 15 SMOSH DOT COM, INC., d/b/a SMOSH, and MYTHICAL 16 ENTERTAINMENT, LLC, 17 Defendants. 18 I. BACKGROUND 19 Kristen Hall (“Plaintiff”) brings this putative class action 20 under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. 21 Section 227, et seq. First Am. Compl. (“FAC”), ECF No. 10. 22 Defendants are Smosh Dot Com, Inc. (“Smosh”), an online 23 entertainment and merchandise company, and Mythical 24 Entertainment, LLC. ( collectively “Defendants”), Smosh’s parent 25 company. Id. ¶¶ 12-15. Plaintiff alleges Defendants sent at 26 least five text messages soliciting Smosh merchandise to the 27 phone number used by her minor son. Id. ¶¶ 26, 31-35. In 28 1 response, she filed this lawsuit. Compl., ECF No. 1. She 2 asserts claims against Defendants for violations of the TCPA and 3 Section 302.101 of the Texas Business and Commerce Code. FAC at 4 2. 5 Before the Court is Defendants’ motion to dismiss.1 Mot. to 6 Dismiss (“Mot.”), ECF No. 34. Plaintiff opposed the motion. 7 Opp’n, ECF No. 37. Defendants replied. Reply, ECF No. 38. With 8 the Court’s permission, see ECF No. 40, Plaintiff filed a sur- 9 reply. Sur-Reply, ECF No. 41. After careful consideration of 10 the parties’ briefing and relevant legal authority, the Court 11 grants Defendants’ motion. 12 13 II. OPINION 14 A. Legal Standard 15 A defendant may move to dismiss for lack of subject matter 16 jurisdiction pursuant to Federal Rule of Civil Procedure 17 12(b)(1). Fed. R. Civ. P. 12(b)(1). If the plaintiff lacks 18 standing under Article III of the United States Constitution, 19 then the court lacks subject-matter jurisdiction, and the case 20 must be dismissed. See Maya v. Centex Corp., 658 F.3d 1060, 21 1067 (9th Cir. 2011). To establish standing, a plaintiff must 22 “have (1) suffered an injury in fact, (2) that is fairly 23 traceable to the challenged conduct of the defendant, and 24 (3) that is likely to be redressed by a favorable judicial 25 decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). 26 Once a party has moved to dismiss for lack of subject-matter 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for June 28, 2022. 1 jurisdiction under Rule 12(b)(1), the opposing party bears the 2 burden of establishing the court’s jurisdiction. See Kokkonen 3 v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). 4 B. Analysis 5 “The TCPA establishes the substantive right to be free from 6 certain types of phone calls and texts absent consumer consent.” 7 Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 8 (9th Cir. 2017) (internal citations omitted). Because 9 “unsolicited telemarketing phone calls or text messages, by 10 their nature, invade the privacy and disturb the solitude of 11 their recipients,” receipt of such messages constitutes a 12 “concrete injury in fact sufficient to confer Article III 13 standing.” Id. 14 Defendants move to dismiss for lack of standing. Mot. at 15 4-5. Specifically, Defendants argue Plaintiff does not have 16 standing because she did not plead she was the actual user of 17 the phone number to which Defendants sent the text messages nor 18 the actual recipient of those messages. Id.; Reply at 2-3. Her 19 son was. Id. 20 Plaintiff insists she does have standing because “(1) she 21 received text messages to her cell phone number which was 22 registered on the Do-Not-Call list; and (2) the messages invaded 23 her right to be left alone.” Opp’n at 14 (citing to FAC ¶¶ 28, 24 34, 37). She downplays her son’s use of the number by citing to 25 the allegations that her minor son only used the phone “at times” 26 and that she registered the number on the Do-Not-Call list to 27 protect her son from advertisers. Id. at 15 (citing to FAC 28 ¶¶ 26, 29). But as Defendants argue, Plaintiff’s attempts to 1 rewrite the FAC in her opposition brief are improper. Reply at 2 2-3. The FAC clearly indicates Plaintiff’s son was the phone 3 user and the recipient of the messages. See FAC ¶¶ 26, 31-34. 4 Plaintiff’s new contention – that actually she received the text 5 messages - fails because a complaint cannot be amended through an 6 opposition to a motion to dismiss. See Schneider v. Cal. Dep’t 7 of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). Plaintiff did 8 not plead she received any of Defendants’ text messages. She 9 pled only that she was “the subscriber and owner of the phone.” 10 FAC ¶ 37. 11 Plaintiff also does not bring forward any binding authority 12 supporting the proposition that she has standing merely as the 13 subscriber/owner of the phone. See Opp’n at 14-15. First, 14 Plaintiff cites to a FCC Decision, In the Matter of Rules and 15 Regulations Implementing the TCPA of 1991, 30 F.C.C.R. 7961 16 (2015). Id. at 15. Then she cites to Miholich v. Senior Life 17 Ins. Co., Case No. 21-cv-1123-WQH-AGS, 2022 WL 410945 (S.D. Cal. 18 Feb. 10, 2022), which is readily distinguishable. Id. at 14. 19 The first standing issue in Miholich was whether Plaintiff’s 20 telephone was used for business and thus fell outside the 21 protection of the do-not-call provisions of the TCPA, which only 22 protect residential telephone subscribers not businesses. 2022 23 WL 410945, at *3. Here, that issue is not present because it is 24 undisputed the phone number was residential. See FAC ¶ 27. The 25 other standing issue in Miholich was whether plaintiff 26 sufficiently pled that defendant sent the TCPA-violative messages 27 or that defendant had a relationship with a third-party sender of 28 the messages, such that plaintiff’s injury was fairly traceable 1 to defendant's conduct or redressable by defendant. 2022 WL 2 410945, at *4. Again, that issue is not present here. In sum, 3 Miholich does not support Plaintiff’s argument that she has 4 standing merely by owning the phone. 5 Further, Plaintiff does not address Agne v. Papa John's 6 Int'l, Inc., 286 F.R.D. 559, 565 (W.D. Wash. 2012), the case 7 Defendants cite in their motion in support of their argument “it 8 is the actual user of the number that the TCPA is intended to 9 protect.” See Mot. at 5; see also Opp’n. Nor does Plaintiff 10 address Breslow v. Wells Fargo Bank, N.A., 857 F.Supp.2d 1316, 11 1321 (S.D. Fla. 2012), relied on by Defendants to support their 12 position that the “‘called party’ language of the TCPA means the 13 actual recipient of the calls or texts and not the owner.” See 14 Mot. at 4; see also Opp’n. “Failure to oppose an argument raised 15 in a motion to dismiss constitutes waiver of that argument.” 16 Resnick v. Hyundai Motor America, Inc., Case No. CV 16-00593-BRO 17 (PJWx), 2017 WL 1531192, at *22, (C.D. Cal. Apr. 13, 2017). 18 For all of these reasons, the Court finds that Plaintiff has 19 not carried her burden to show she has standing. See Kokkonen, 20 511 U.S. at 377. Defendants’ motion to dismiss is therefore 21 granted. Because the Court dismisses for lack of standing, the 22 Court does not reach the parties’ additional 12(b)(6) arguments. 23 See Mot. at 7-11; see also Opp’n at 6-13. 24 C. Sanctions 25 A violation of the Court’s standing order requires the 26 offending counsel, not the client, to pay $50.00 per page over 27 the page limit to the Clerk of Court. Order re Filing 28 Requirements at 1, ECF No. 5-2. Moreover, the Court did not nen een nnn een nn nn nn OO ID EO 1 consider arguments made past the page limit. Id. 2 Plaintiff's opposition exceeds the Court’s page limit by 8 3 pages. See Opp’n. Plaintiff’s counsel must therefore send a 4 check payable to the Clerk for the Eastern District of California 5 for $400.00 no later than seven days from the date of this Order. 6 Defendants’ reply exceeds the Court’s page limit by 3.5 7 pages. See Reply. Defendants’ counsel must therefore send a 8 check payable to the Clerk for the Eastern District of 9 California for $175.00 no later than seven days from the date of 10 this Order. 11 12 Til. ORDER 13 For the reasons set forth above, the Court GRANTS 14 Defendants’ motion to dismiss. 15 IT IS SO ORDERED. 16 Dated: July 11, 2022 17 kA 18 teiren staves odermacr 7008 19 20 21 22 23 24 25 26 27 28