Schley v. One Planet Ops Inc ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 REEVE SCHLEY, Case No. 20-cv-00203-EMC 8 Plaintiff, ORDER FINDING MOOT IN PART 9 v. AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS 10 ONE PLANET OPS INC, et al., Docket No. 19 11 Defendants. 12 13 14 Plaintiff Reeve Schley has filed a class action against Defendants One Planet Ops Inc. and 15 Buyerlink LLC dba contractors.com, asserting claims for violation of the Telephone Consumer 16 Protection Act (“TCPA”). Mr. Schley alleges that Defendants both texted him and called him in 17 violation of the statute. Currently pending before the Court is Defendants’ motion to dismiss. 18 Having considered the parties’ briefs, the Court hereby finds the motion moot in part and 19 otherwise DENIES the motion. 20 I. FACTUAL & PROCEDURAL BACKGROUND 21 In his complaint, Mr. Schley alleges as follows. 22 A. Text Messages 23 Mr. Schley is the subscriber and/or sole user of a cell phone with the following number: 24 (310) 435-****. See Compl. ¶ 44. Between August 7 and 21, 2019, Defendant sent Mr. Schley 25 multiple text messages (at least 5) the content of which was as follows (or something similar): 26 Hi Good day! this is Mark Belfort from Contractors.com, We are a real-time Lead Service Company. just checking in if you’re already 27 available to take additional Home Improvement Projects from no subscription fees and no contracts or any long term commitment. 1 Please let me know if you’re interested. 2 Compl. ¶ 37; see also Compl. ¶¶ 39-40.1 The text messages were sent from numbers that are 3 “dedicated number[s] used for mass texts, not hand delivered messages.” Compl. ¶ 38; see also 4 Compl. ¶¶ 39-40. Mr. Schley did not give consent to be contacted via text messages. See Compl. 5 ¶ 42. 6 B. Telephone Calls 7 As noted above, Mr. Schley is the subscriber and/or sole user of a cell phone with the 8 following number: (310) 435-****. See Compl. ¶ 44. Mr. Schley registered his cell phone with 9 the National Do Not Call Registry several years before the events giving rise to this lawsuit. See 10 Compl. ¶ 49. 11 Between August 2019 and December 2019, Mr. Schley received approximately 30 phone 12 calls from Defendants. See Compl. ¶ 57; see also Compl. ¶¶ 51-56. Mr. Schley never gave 13 consent to be contacted by phone. See Compl. ¶ 59. 14 C. Causes of Action 15 Based on, inter alia, the above allegations, Mr. Schley asserted the following TCPA causes 16 of action in his complaint. 17 (1) Violation of 47 U.S.C. § 227(b)(1)(A)(iii). This statute prohibits a person from 18 making “any call (other than a call made for emergency purposes or made with the 19 prior express consent of the called party) using any automatic telephone dialing 20 system or an artificial or prerecorded voice – . . . (iii) to any telephone number 21 assigned to a . . . cellular telephone service . . . or any service for which the called 22 party is charged for the call . . . .” 47 U.S.C. § 227(b)(1)(A)(iii). 23 (2) Violation of 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200(c). The regulation 24 provides, inter alia, that “[n]o person or entity shall initiate any telephone 25 solicitation to . . . (2) A residential telephone subscriber who has registered his or 26 27 1 It appears that Mr. Schley was sent this message because he is affiliated with a company that 1 her telephone number on the national do-not-call registry of persons who do not 2 wish to receive telephone solicitations that is maintained by the Federal 3 Government.” 47 C.F.R. § 64.1200(c)(2). 4 (3) Violation of 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200(d). The regulation 5 provides that “[n]o person or entity shall initiate any call for telemarketing 6 purposes to a residential telephone subscriber unless such person or entity has 7 instituted procedures for maintaining a list of persons who request not to receive 8 telemarketing calls made by or on behalf of that person or entity.” 47 C.F.R. § 9 64.1200(d). The procedures must meet certain specified minimum standards (e.g., 10 a written policy, personnel training, etc.). See id. 11 II. DISCUSSION 12 A. Legal Standard 13 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain 14 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 15 complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil 16 Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss 17 after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic 18 Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must . 19 . . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 F.3d 20 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true and 21 construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. 22 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a 23 complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient 24 allegations of underlying facts to give fair notice and to enable the opposing party to defend itself 25 effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted). “A claim has facial 26 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 27 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The 1 possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). 2 In the pending motion to dismiss, Defendants moved to dismiss all three TCPA causes of 3 action asserted by Mr. Schley. 4 B. Second and Third Causes of Action 5 As indicated above, the second and third TCPA claims involve calls to residential 6 telephone subscribers. Defendants have asked the Court to take judicial notice that the cell phone 7 identified in the complaint is one associated with a business (Seed Furniture, Inc.) such that they 8 cannot be held liable with respect to these causes of action. In his opposition brief, Mr. Schley 9 states that he is voluntarily dismissing these claims for relief – although not for the reasons 10 articulated by Defendants – and asks that the Court dismiss the claims without prejudice. 11 Federal Rule of Civil Procedure 41 provides that a “plaintiff may dismiss an action without 12 a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer 13 or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have 14 appeared.” Fed. R. Civ. P. 41(a)(1)(A). “Unless the notice or stipulation states otherwise, the 15 dismissal is without prejudice.” Fed. R. Civ. P. 41(a)(1)(B). In light of Mr. Schley’s statement in 16 his opposition brief and Rule 41(a)(1), the second and third causes of action shall be dismissed 17 without prejudice. 18 C. First Cause of Action: Text Messages 19 As indicated above, the first cause of action is predicated on a TCPA provision providing 20 that 21 any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any 22 automatic telephone dialing system or an artificial or prerecorded voice – . . . (iii) to any telephone number assigned to a . . . cellular 23 telephone service . . . or any service for which the called party is charged for the call . . . . 24 25 47 U.S.C. § 227(b)(1)(A)(iii). According to Defendants, there are insufficient allegations to 26 support Mr. Schley’s claim that an automatic telephone dialing system (“ATDS”) was used to 27 send out the text messages. 1 assessing the plausibility of the use of an ATDS. For example: 2 • The nature of the message. A generic or impersonal message suggests the use of an 3 ATDS. So too does a promotional message. See, e.g., Flores v. Adir Int’l, LLC, 4 No. CV 15-00076-AB (PLAx), 2015 U.S. Dist. LEXIS 92176, at *13 (C.D. Cal. 5 July 15, 2015) (“[T]he defendants in those cases ‘had no other reason to be in 6 contact with [the] Defendants,’ and the promotional nature of the text messages 7 suggested at least some level of random targeting.”), rev’d on other grounds by 8 Flores v. Adir Int’l, LLC, 685 F. App’x 533 (9th Cir. 2017). 9 • The number or frequency of messages. See Mogadam v. Fast Eviction Serv., No. 10 SACV 14-01912 JVS (RNBx), 2015 U.S. Dist. LEXIS 49045, at *6 (C.D. Cal. 11 Mar. 30, 2015). Repetitive messages sent over a short period of time suggest the 12 use of an ATDS. See, e.g., Cunningham v. Kondaur Capital, No. 3:14-1574, 2014 13 U.S. Dist. LEXIS 183095at *15 (M.D. Tenn. Nov. 19, 2014) (finding plaintiff 14 sufficiently alleged use of ATDS based on allegations that “[text] messages were 15 repeated within a short span of time and consisted of the same content”). 16 • “[T]he ability to respond to or interact with the text messages (i.e., sending 17 ‘Stop’).” Armstrong v. Investor’s Bus. Daily, Inc., No. CV 18-2134-MWF (JPRx), 18 2018 U.S. Dist. LEXIS 216246, at *16 (C.D. Cal. Dec. 21, 2018). 19 • The relationship between the parties. See Mogadam, 2015 U.S. Dist. LEXIS 20 49045, at *6. If the parties had a pre-existing relationship, that would suggest that 21 an ATDS was not used. Also, if the defendant had a specific reason to contact the 22 plaintiff, that might also suggest an ATDS was not used. 23 • Whether “identical messages were sent to many potential customers at the same 24 time.” Izsak, 191 F. Supp. 3d at 904. This, of course, would suggest the use of an 25 ATDS. 26 • Whether a SMS short code or long code was used to send the text. The use of a 27 short code suggests the use of an ATDS. However, the use of a long code does not 1 1041V(F), 2019 U.S. Dist. LEXIS 108038, at *39-40 (W.D.N.Y. June 27, 2019) 2 (“Although autodialed messages are more typically sent using short-code numbers, 3 a long-code telephone line number can also support use of an autodialer.”). In 4 Gerrard, for example, the court held that, “given the nature of Defendant’s 5 business, which seeks to induce the recipient of Defendant’s job-related text 6 messages to contact Defendant, it is plausible that to avoid creating an adverse 7 impression upon a recipient of Defendant’s text message that Defendant’s calls 8 came from an autodialer anonymously seeking out recipients to apply for a specific 9 job, Superior elected to use the long-code, the 844 number, instead of a short-code 10 number that would be more indicative to the recipient of use of autodialer, one 11 nevertheless technically capable of transmitting calls by an autodialer. Therefore, 12 in the context of Defendant’s business of sending recruitment messages, it is a 13 reasonable inference, as Plaintiff alleges, that the long-code number associated with 14 an out-going text messaging only line was used by Defendant to support the use of 15 an autodialer, despite the absence of an alleged use of a short-code number, a factor 16 more typically aligned with use of an ATDS.” Id. at *40-41 17 Taking into account factors such as the above, Mr. Schley has alleged enough to support a 18 plausible claim of use of an ATDS in conjunction with the sending of text messages. For 19 example, he has alleged that he (one person) received multiple text messages from Defendants (at 20 least 5), that the messages had the same basic content (i.e., were repetitive), that the messages 21 were promotional in nature (e.g., there was not a specific reason for Defendants to contact him), 22 and that the messages were sent over a relatively short period of time (i.e., 2 were sent between 23 August 7 and 9, 2019, and 3 were sent on August 21, 2019). 24 The fact that the text messages were sent with a long code, as opposed to a short code, is 25 not dispositive. As noted above, the use of a long code does not preclude the use of an ATDS. 26 Furthermore, the fact that Defendants sent the messages to Mr. Schley because he is affiliated with 27 Seed Furniture, a company that provides contracting services, is immaterial. The fact remains that 1 Furniture had some kind of pre-existing relationship with Defendants. See, e.g., Compl. ¶ 58 2 (alleging that “Plaintiff never had a business relationship with Defendants”). Finally, the fact that 3 the messages refer to roofing job requests in Los Angeles – where Seed Furniture is located – is 4 also immaterial. The geographical limitation alone does not make the messages nongeneric or 5 personal in nature. The bottom line is that it seems plausible that an ATDS could have been used 6 to contact contractors in the Los Angeles area, of which Mr. Schley/Seed Furniture was one. To 7 the extent Defendants argue that it is “‘just as conceivable that the text messages were done by 8 hand, or not using an ATDS,’” Reply at 4, the Ninth Circuit has indicated that equal plausibility 9 means a plaintiff survives a 12(b)(6) challenge. See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 10 2011) (“If there are two alternative explanations, one advanced by defendant and the other 11 advanced by plaintiff, both of which are plausible, plaintiff’s complaint survives a motion to 12 dismiss under Rule 12(b)(6). Plaintiff’s complaint may be dismissed only when defendant’s 13 plausible alternative explanation is so convincing that plaintiff’s explanation is implausible.”). 14 D. First Cause of Action: Telephone Calls 15 Defendants argue next that Mr. Schley has failed to plausibly allege use of an ATDS in 16 conjunction with the phone calls he received. As above, Mr. Schley has alleged enough to 17 overcome the 12(b)(6) challenge. In particular, he has alleged that, in the span of just a few 18 months (between August and December 2019), he received about 30 phone calls from Defendants. 19 In addition, he “received at least two calls in which, after picking up the cell, a voice became 20 audible after a several second delay of silence.” Compl. ¶ 61. See, e.g., O’Connor v. Lyft, Inc., 21 No. 16-cv-00351-JSW, 2016 U.S. Dist. LEXIS 153705, at *12 (N.D. Cal. Apr. 14, 2016) (noting 22 that “an allegation of a ‘telltale pause’ between the time the plaintiff answered a call and the time 23 an agent began speaking has been found sufficient to support an inference that calls were made 24 using an ATDS”). When these allegations are taken together (in their papers, Defendants focus 25 only the “dead air” allegations and not the allegations regarding the number of phone calls over a 26 relatively short period of time, see, e.g., Reply at 1 (noting that there was dead air on only 6.67% 27 of the calls received by Mr. Schley)), it is reasonable to infer than an ATDS was used – 1 U.S., N.A., No. CIV-18-716-R, 2019 U.S. Dist. LEXIS 21379, at *9 (W.D. Okla. Feb. 11, 2019) 2 (holding that plaintiff had made sufficient factual allegations on “capacity” – as that term is used 3 in § 227(a)(1) – “to avoid dismissal [at the 12(b)(6) phase], given that the relevant information to 4 support his contention lies exclusively in the hands of the Defendant”). 5 Defendants rely on Smith v. Aitima Med. Equip., Inc., No. ED CV 16-00339-AB (DTBx), 6 2016 U.S. Dist. LEXIS 113671 (C.D. Cal. July 29, 2016), to argue that an allegation of “‘dead 7 air’” is not enough to support a claim for use of an ATDS. But Smith is distinguishable as the 8 plaintiff in the case received only one phone call from the defendant. The Smith court 9 distinguished the case before it from other cases precisely because of this fact. 10 In Loveless, “dead air” was heard after answering the phone on several occasions and the court found “the allegations regarding the 11 ‘dead air’ plaintiff experience[d] with respect to several calls sufficient to survive a motion to dismiss.” Loveless v. A1 Solar 12 Power, Inc., 2015 U.S. Dist. LEXIS 96429 (C.D. Cal. July 23, 2015). Experiencing dead air on several calls raised a reasonable 13 inference that the caller used an ATDS. Plaintiff also cites the Evans case to support her claim that hearing a pause is sufficient to 14 infer use of an ATDS. But there, the plaintiff alleged that defendant used an ATDS because he alleged multiple phone calls, that the calls 15 continued after he specifically asked the defendant to stop calling, he heard a brief silence after answering many of the calls, and the 16 calls were frequent and persistent. Evans v. National Auto Division, L.L.C., 2016 U.S. Dist. LEXIS 29348 (D.N.J. Mar. 8, 2016). 17 . . . . [In Oliver v. DirecTV, LLC, 2015 U.S. Dist. LEXIS 47964], 18 [the plaintiff] alleged that on at least three of the twenty-five calls he received, he heard a pause before a live representative began 19 speaking, that he was always routed to a different account manager, and that he informed defendant that he did not want to receive the 20 calls, yet they continued. . . . In these cases and the others cited by Plaintiff in her Opposition, the plaintiffs alleged hearing dead air or 21 a pause on several phone calls in addition to other allegations of numerous calls, no voicemails, persistency of calls, and callbacks to 22 a prerecorded voice. Turning to the case before the Court, Plaintiff has alleged hearing only one pause on only one phone call. The 23 pause could be an accidental hang up, a mistake from someone realizing they had the wrong number, a bad connection, or the use of 24 an ATDS. . . . One call and one pause, standing alone, do not take the claim of the use of an ATDS beyond the speculative level. 25 26 Id. at *15-18 (emphasis added). 27 In the instant case, Mr. Schley has alleged more than one phone call from Defendants – 1 instances (not just one), he encountered the dead air issue. To the extent Defendants argue that 2 “Tthe] delay in only 6.67 percent of the calls received is more likely a result of an inattentive caller 3 than an ATDS,” Reply at 1, that argument is speculative and does not negate the opposite 4 || inference. It is plausible that there was an inattentive caller but it is equally plausible that an 5 ATDS was used — when the “dead air” allegations are taken in conjunction with the allegations 6 || that Mr. Schley received about 30 phone calls in just a few months’ time. 7 Il. CONCLUSION 8 For the foregoing reasons, the Court denies the motion to dismiss with respect to the first 9 TCPA cause of action. Because Mr. Schley has voluntarily dismissed the second and third causes 10 || of action (without prejudice), the motion to dismiss on these claims is moot. 11 This order disposes of Docket No. 19. 12 IT IS SO ORDERED. © 15 || Dated: March 18, 2020 16 LL == ED M.C Z 18 United States District Judge 19 20 21 22 23 24 25 26 27 28