Aussieker v. Goldwater Bank, National Assoc. ( 2024 )

1 Sean C. Wagner (Pro Hac Vice) 2 Sean.Wagner@wagnerhicks.law 3 Meagan L. Allen (Pro Hac Vice) Meagan.Allen@wagnerhicks.law 4 Adam L. Wilson, (Pro Hac Vice) 5 Adam.Wilson@wagnerhicks.law WAGNER HICKS PLLC 6 831 East Morehead Street, Suite 860 7 Charlotte NC 28202 Telephone: (704) 705-7538 8 Facsimile: (704) 705-7787 9 John Forest Hilbert, Esq. (SBN 105827) 10 jhilbert@hscallaw.com 11 Joseph A. LeVota, Esq. (SBN 226760) jlavota@hscallaw.com 12 HILBERT & SATTERLY LLP 13 409 Camino del Rio S. #104 San Diego, California 92108 14 Telephone: (619) 795-0300 15 Facsimile: (619) 501-6855 16 Attorneys for Defendant 17 Goldwater Bank, N.A. 18 IN THE UNITED STATES DISTRICT COURT 19 FOR THE EASTERN DISTRICT OF CALIFORNIA 20 21 MARK AUSSIEKER, individually and on Case No. 2:22-CV-00851-MCE-DB behalf of all others similarly situated, 22 Plaintiffs, ORDER GRANTING DEFENDANT 23 GOLDWATER BANK, N.A.’S vs. RENEWED MOTION TO DISMISS 24 PLAINTIFF’S AMENDED GOLDWATER BANK, N.A., Does 1-10 25 COMPLAINT [ECF No 36] inclusive 26 Defendant. 27 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF CALIFORNIA 3 MARK AUSSIEKER, individually and on 4 behalf of all others similarly situated, Case No. 2:22-CV-00851-MCE-DB 5 Plaintiffs, ORDER GRANTING DEFENDANT 6 vs. GOLDWATER BANK, N.A.’S RENEWED MOTION TO DISMISS 7 GOLDWATER BANK, N.A., Does 1-10 PLAINTIFF’S AMENDED COMPLAINT [ECF No. 36] 8 inclusive 9 Defendant. 10 11 The Court having reviewed the submissions of the parties regarding Defendant 12 Goldwater Bank, N.A.’s (“Goldwater”) Renewed Motion to Dismiss Plaintiff’s 13 Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 36) finds that 14 Plaintiff’s Amended Complaint (ECF No. 4) fails to state a claim upon which relief 15 may be granted. For the reasons set forth below, Plaintiff’s Amended Complaint is 16 DISMISSED WITH PREJUDICE and without leave to amend.1 17 Plaintiff’s Amended Complaint seeks relief under the Telephone Consumer 18 Protection Act (“TCPA”), specifically 47 U.S.C. § 227(b)(1)(A) and § 227(b)(1)(B). 19 In his Opposition, Plaintiff admits that his Amended Complaint does not plausibly 20 allege that the single, text message alleged was sent using an automatic telephone 21 dialing system (“ATDS”) as that term has been interpreted by the Ninth Circuit 22 following the United States Supreme Court’s decision in Facebook, Inc. v. Duguid, 23 141 S. Ct. 1163, 1167 (2021). That is, Plaintiff concedes (and his allegations 24 demonstrate) that Goldwater’s dialing equipment did not generate telephone numbers 25 using a random or sequential number generator, as is required to state a claim under 26 47 U.S.C. § 227(b)(1)(A). See Borden v. eFinancial, LLC, 53 F.4th 1230, 1234 (9th 27 1 Plaintiff’s Request for Judicial Notice (“RJN”) is DENIED. ECF No. 40 (RJN). 1 | Cir. 2022); Trim v. Reward Zone USA LLC, No. 22-55517, 2023 WL 5043724, at *1 2 | (Oth Cir. Aug. 8, 2023). 3 Further, Plaintiffs contention that the alleged text message utilized “an 4 | artificial or prerecorded voice” under 47 U.S.C. § 227(b)(1)(A) or § 227(b)(1)(B) is 5 || unsupported by law or any reasonable reading of the TCPA. See, e.g., Trim v. Reward 6 || Zone USA LLC, 76 F.4th 1157 (9th Cir. 2023). As both causes of action alleged in 7 | Plaintiff's Amended Complaint are legally insufficient, Plaintiff's Amended 8 || Complaint must be dismissed for failure to assert a plausible claim for relief pursuant 9 | to Fed. R. Civ. P. 12(b)(6). Plaintiff concedes he cannot amend in order to state a 10 | valid claim. Accordingly, Defendants’ Motion to Dismiss (ECF No. 36) is 11 | GRANTED without leave to amend. The Clerk of the Court is directed to close this 12 | case. 13 IT IS SO ORDERED. 14 | Dated: May 13, 2024 15 J ate IES NK SENIOR UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3.