1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 23cv0748 DMS (DEB) THANE CHARMAN, individual and on
11 behalf of all others similarly situated, ORDER DENYING DEFENDANT’S 12 Plaintiff, MOTION TO DISMISS v. 13 CLOUD BASED PERSONAL LOAN 14 LOCATOR, INC. d/b/a PERSONAL 15 LOANS NOW, and DOES 1-10 INCLUSIVE, 16 Defendants. 17 18 19 This case comes before the Court on Defendant’s motion to dismiss. Plaintiff filed 20 an opposition to the motion, and Defendant filed a reply. For the reasons discussed below, 21 the motion is denied. 22 I. 23 BACKGROUND 24 Plaintiff Thane Charman alleges that starting on May 4, 2020, Defendant Cloud 25 Based Personal Loan Locator, Inc. began sending unsolicited text messages to his phone 26 even though Plaintiff’s phone number was on the Do-Not-Call Registry. (Am. Compl. ¶¶ 27 38-39.) As a result of those messages, Plaintiff, on behalf of himself and all others 28 1 similarly situated, filed the present case alleging Defendant violated the Telephone 2 Consumer Protection Act (“TCPA”). 3 After a telephonic status conference with the Court, Plaintiff filed an Amended 4 Complaint. In response, Defendant filed the present motion. 5 II. 6 DISCUSSION 7 Defendant moves to dismiss Plaintiff’s Complaint for lack of standing under 8 Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim under Federal 9 Rule of Civil Procedure 12(b)(6). 10 A. Standing 11 Supreme Court “cases have established that the ‘irreducible constitutional 12 minimum’ of standing consists of three elements.” Spokeo v. Robins, 578 U.S. 330, 338 13 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “The plaintiff 14 must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct 15 of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. 16 (citing Lujan, 504 U.S. at 560-61). “The plaintiff, as the party invoking federal jurisdiction, 17 bears the burden of establishing these elements.” Id. (citing FW/PBS, Inc. v. Dallas, 493 18 U.S. 215, 231 (1990)). When a case is at the pleading stage, “the plaintiff must ‘clearly … 19 allege facts demonstrating’ each element.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 20 (1975)). 21 To satisfy the first element, the plaintiff must establish that they “suffered ‘an 22 invasion of a legally protected interest that is concrete and particularized and actual or 23 imminent, not conjectural or hypothetical.’” Van Patten v. Vertical Fitness Group, LLC, 24 847 F.3d 1037, 1042 (9th Cir. 2017) (quoting Spokeo, 578 U.S. at 339) (quotation marks 25 omitted). Under the TCPA, this element is met if the plaintiff can show they were subjected 26 to unsolicited telemarketing phone calls or text messages, which “by their nature, invade 27 the privacy and disturb the solitude of their recipients.” Id. at 1043. Plaintiff has satisfied 28 this element here. (See Am. Compl. ¶ 39 (“Plaintiff received at least one (1) unauthorized 1 automated text messages [sic] (‘the text messages’) to his personal cell phone ending in 2 619 3X0-X1X9 from Defendant soliciting their goods and services starting on May 4, 3 2020.”) 4 Turning to the second element, Defendant argues Plaintiff cannot meet it because 5 Defendant did not send the offending text message to Plaintiff’s phone. In support of this 6 argument, Defendant relies on the Declaration of its President and CEO, who states 7 Defendant “never contacted Plaintiff, by text or by any other method of communication.” 8 (Decl. of Joe Delfgauw in Supp. of Mot. (“Delfgauw Decl.”) ¶¶ 4-11.) The Court cannot 9 consider this argument here, however, because it is inextricable from the merits of 10 Plaintiff’s claim. See Kingman Reef Atoll Investments, L.L.C. v. United States, 541 F.3d 11 1189, 1195 (9th Cir. 2008) (stating court may not determine jurisdiction on motion to 12 dismiss under Rule 12(b)(1) if “the jurisdictional issue is inextricable from the merits of 13 a case”); see also Rosales v. United States, 824 F.2d 799, 803 (9th Cir. 1987) (“A district 14 court may hear evidence and make findings of fact necessary to rule on the subject matter 15 jurisdiction question prior to trial, if the jurisdictional facts are not intertwined with the 16 merits.”) (emphasis added). Specifically, whether Defendant sent the text message to 17 Plaintiff’s phone is the first element of Plaintiff’s claim under the TCPA. See Meyer v. 18 Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (citing 47 19 U.S.C. § 227(b)(1)) (stating first element of TCPA claim is whether “the defendant called 20 a cellular telephone number”). In light of this overlap, Defendant is not entitled to 21 dismissal of Plaintiff’s case based on a lack of standing.1 22 / / / 23 / / / 24 25 26 1 Defendant relies on the causation prong of the standing analysis to argue Plaintiff has also 27 failed to meet the redressability prong. Because the Court declines to consider the merits of Defendant’s causation argument here, the Court likewise declines to address 28 1 B. Federal Rule of Civil Procedure 12(b)(6) 2 Turning to Rule 12(b)(6), Defendant argues Plaintiff’s case should be dismissed 3 because Plaintiff has failed to provide “any” factual basis for his claim. (Mem. of P. & A. 4 in Supp. of Mot. at 12.) To survive a motion to dismiss under Rule 12(b)(6), “a complaint 5 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 6 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic 7 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the 8 plaintiff pleads factual content that allows the court to draw the reasonable inference that 9 the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). 10 “Determining whether a complaint states a plausible claim for relief will ... be a 11 context-specific task that requires the reviewing court to draw on its judicial experience 12 and common sense.” Id. at 679 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)). 13 In Iqbal, the Court began this task “by identifying the allegations in the complaint that are 14 not entitled to the assumption of truth.” Id. at 680. It then considered “the factual 15 allegations in respondent’s complaint to determine if they plausibly suggest an entitlement 16 to relief.” Id. at 681. 17 Here, Plaintiff alleges one claim under the TCPA. “The three elements of a TCPA 18 claim are: (1) the defendant called a cellular telephone number; (2) using an automatic 19 telephone dialing system; (3) without the recipient’s prior express consent.” Meyer, 707 20 F.3d at 1043 (citing 47 U.S.C. § 227(b)(1)).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 23cv0748 DMS (DEB) THANE CHARMAN, individual and on
11 behalf of all others similarly situated, ORDER DENYING DEFENDANT’S 12 Plaintiff, MOTION TO DISMISS v. 13 CLOUD BASED PERSONAL LOAN 14 LOCATOR, INC. d/b/a PERSONAL 15 LOANS NOW, and DOES 1-10 INCLUSIVE, 16 Defendants. 17 18 19 This case comes before the Court on Defendant’s motion to dismiss. Plaintiff filed 20 an opposition to the motion, and Defendant filed a reply. For the reasons discussed below, 21 the motion is denied. 22 I. 23 BACKGROUND 24 Plaintiff Thane Charman alleges that starting on May 4, 2020, Defendant Cloud 25 Based Personal Loan Locator, Inc. began sending unsolicited text messages to his phone 26 even though Plaintiff’s phone number was on the Do-Not-Call Registry. (Am. Compl. ¶¶ 27 38-39.) As a result of those messages, Plaintiff, on behalf of himself and all others 28 1 similarly situated, filed the present case alleging Defendant violated the Telephone 2 Consumer Protection Act (“TCPA”). 3 After a telephonic status conference with the Court, Plaintiff filed an Amended 4 Complaint. In response, Defendant filed the present motion. 5 II. 6 DISCUSSION 7 Defendant moves to dismiss Plaintiff’s Complaint for lack of standing under 8 Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim under Federal 9 Rule of Civil Procedure 12(b)(6). 10 A. Standing 11 Supreme Court “cases have established that the ‘irreducible constitutional 12 minimum’ of standing consists of three elements.” Spokeo v. Robins, 578 U.S. 330, 338 13 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “The plaintiff 14 must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct 15 of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. 16 (citing Lujan, 504 U.S. at 560-61). “The plaintiff, as the party invoking federal jurisdiction, 17 bears the burden of establishing these elements.” Id. (citing FW/PBS, Inc. v. Dallas, 493 18 U.S. 215, 231 (1990)). When a case is at the pleading stage, “the plaintiff must ‘clearly … 19 allege facts demonstrating’ each element.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 20 (1975)). 21 To satisfy the first element, the plaintiff must establish that they “suffered ‘an 22 invasion of a legally protected interest that is concrete and particularized and actual or 23 imminent, not conjectural or hypothetical.’” Van Patten v. Vertical Fitness Group, LLC, 24 847 F.3d 1037, 1042 (9th Cir. 2017) (quoting Spokeo, 578 U.S. at 339) (quotation marks 25 omitted). Under the TCPA, this element is met if the plaintiff can show they were subjected 26 to unsolicited telemarketing phone calls or text messages, which “by their nature, invade 27 the privacy and disturb the solitude of their recipients.” Id. at 1043. Plaintiff has satisfied 28 this element here. (See Am. Compl. ¶ 39 (“Plaintiff received at least one (1) unauthorized 1 automated text messages [sic] (‘the text messages’) to his personal cell phone ending in 2 619 3X0-X1X9 from Defendant soliciting their goods and services starting on May 4, 3 2020.”) 4 Turning to the second element, Defendant argues Plaintiff cannot meet it because 5 Defendant did not send the offending text message to Plaintiff’s phone. In support of this 6 argument, Defendant relies on the Declaration of its President and CEO, who states 7 Defendant “never contacted Plaintiff, by text or by any other method of communication.” 8 (Decl. of Joe Delfgauw in Supp. of Mot. (“Delfgauw Decl.”) ¶¶ 4-11.) The Court cannot 9 consider this argument here, however, because it is inextricable from the merits of 10 Plaintiff’s claim. See Kingman Reef Atoll Investments, L.L.C. v. United States, 541 F.3d 11 1189, 1195 (9th Cir. 2008) (stating court may not determine jurisdiction on motion to 12 dismiss under Rule 12(b)(1) if “the jurisdictional issue is inextricable from the merits of 13 a case”); see also Rosales v. United States, 824 F.2d 799, 803 (9th Cir. 1987) (“A district 14 court may hear evidence and make findings of fact necessary to rule on the subject matter 15 jurisdiction question prior to trial, if the jurisdictional facts are not intertwined with the 16 merits.”) (emphasis added). Specifically, whether Defendant sent the text message to 17 Plaintiff’s phone is the first element of Plaintiff’s claim under the TCPA. See Meyer v. 18 Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (citing 47 19 U.S.C. § 227(b)(1)) (stating first element of TCPA claim is whether “the defendant called 20 a cellular telephone number”). In light of this overlap, Defendant is not entitled to 21 dismissal of Plaintiff’s case based on a lack of standing.1 22 / / / 23 / / / 24 25 26 1 Defendant relies on the causation prong of the standing analysis to argue Plaintiff has also 27 failed to meet the redressability prong. Because the Court declines to consider the merits of Defendant’s causation argument here, the Court likewise declines to address 28 1 B. Federal Rule of Civil Procedure 12(b)(6) 2 Turning to Rule 12(b)(6), Defendant argues Plaintiff’s case should be dismissed 3 because Plaintiff has failed to provide “any” factual basis for his claim. (Mem. of P. & A. 4 in Supp. of Mot. at 12.) To survive a motion to dismiss under Rule 12(b)(6), “a complaint 5 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 6 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic 7 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the 8 plaintiff pleads factual content that allows the court to draw the reasonable inference that 9 the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). 10 “Determining whether a complaint states a plausible claim for relief will ... be a 11 context-specific task that requires the reviewing court to draw on its judicial experience 12 and common sense.” Id. at 679 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)). 13 In Iqbal, the Court began this task “by identifying the allegations in the complaint that are 14 not entitled to the assumption of truth.” Id. at 680. It then considered “the factual 15 allegations in respondent’s complaint to determine if they plausibly suggest an entitlement 16 to relief.” Id. at 681. 17 Here, Plaintiff alleges one claim under the TCPA. “The three elements of a TCPA 18 claim are: (1) the defendant called a cellular telephone number; (2) using an automatic 19 telephone dialing system; (3) without the recipient’s prior express consent.” Meyer, 707 20 F.3d at 1043 (citing 47 U.S.C. § 227(b)(1)). In the Amended Complaint, Plaintiff alleges 21 he “received at least one (1) unauthorized automated text messages [sic] (‘the text 22 messages’) to his personal cell phone ending in 619 3X0-X1X9 from Defendant soliciting 23 their goods and services starting on May 4, 2020.” (Am. Compl. ¶ 39.) He also alleges 24 Defendant’s text message(s) were “generated and sent using an ATDS[,]” (id. ¶ 47), based 25 on the style and format of the text message, (see id. ¶ 49) (describing features of the text 26 message), and that he “did not give Defendant his prior express written consent to receive 27 the text messages.” (Id. ¶ 46.) 28 1 Defendant argues these allegations are simply “labels and conclusions,” (Mem. of 2 ||P. & A. in Supp. of Mot. at 12), but the Court disagrees. They are factual allegations, 3 || which the Court must accept as true on the present motion. Schwake v. Arizona Bd. of 4 || Regents, 967 F.3d 940, 946 (9® Cir. 2020) (citing Metzler Inv. GMBH Corinthian Colls., 5 || Inc., 540 F.3d 1049, 1061 (9% Cir. 2008)) (stating court must “accept as true all well- 6 || pleaded factual allegations and construe them in the light most favorable to the non-moving 7 ||party.”) Defendant also fails to address any of the factual details about the text message 8 || Plaintiff received, which raise a reasonable inference that an ATDS was used, and support 9 || the facial plausibility of Plaintiffs claim. Construing the allegations in Plaintiffs favor, 10 has alleged sufficient facts to support his claim against Defendant. 11 Il. 12 CONCLUSION AND ORDER 13 For the reasons set out above, the Court denies Defendant’s motion to dismiss. 14 IT IS SO ORDERED. 15 ||Dated: January 22, 2024 □ gf, p 16 4 Yn: 7 Hon. Dana M. Sabraw, Chief Judge United States District Court 18 19 20 21 22 23 24 25 26 27 28