Declements v. Americana Holdings LLC

Opinion

1 WO 2 3 4 5

9 Daniel Declements, No. CV-20-00166-PHX-DLR

10 Plaintiff, ORDER

11 v.

12 Americana Holdings LLC, et al.,

13 Defendants. 14 15 16 Before the Court is Americana Arizona LLC’s (“Americana”) partial motion to 17 dismiss Plaintiff’s first amended complaint, which is fully briefed. (Docs. 16, 21, 25.) For 18 the following reasons, the Court will deny Americana’s motion.1 19 On January 21, 2020, Plaintiff filed a complaint bringing a claim based on alleged 20 violations of the Telephone Consumer Protection Act (“TCPA”) on behalf of himself and 21 those similarly situated. (Doc. 1.) In the original complaint, Plaintiff asserted that he had 22 received both a violative telephone call and a violative text message. (Id.) After learning 23 that he had not, in fact, received an autodialed telephone call, Plaintiff amended his 24 complaint to remove factual allegations concerning the telephone call. (Doc. 12.) On April 25 23, 2020, Americana filed a motion to dismiss, seeking to dismiss pursuant to Rule 12(b)(1) 26 all allegations that pertain to “autodialed calls” and to strike and dismiss all class action

27 1 Americana’s request for oral argument is denied because the issues are adequately briefed and oral argument will not help the Court resolve the motion. See Fed. R. Civ. P. 28 78(b); LRCiv. 7.2(f); Lake at Las Vegas Investors Grp., Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th Cir. 1991). 1 allegations contained in the amended complaint. (Doc. 16.) 2 In its motion, Americana requests that the Court “dismiss all allegations in 3 [Plaintiff’s amended complaint] that pertain to ‘autodialed calls’ for lack of subject matter 4 jurisdiction,” noting that Plaintiff has not alleged that he received any traditional voice calls 5 from Americana by means of an automatic telephone dialing system (“ATDS”) and 6 arguing pursuant to Rule 12(b)(1) that he therefore lacks standing to bring claims regarding 7 “autodialed calls.” (Doc. 16 at 1) (emphasis added.) The TCPA makes it unlawful “to 8 make any call” using (“ATDS”). 47 U.S.C. § 227(b)(1)(A). The term “call” refers not 9 solely to traditional voice calls; it is an umbrella term that encapsulates all efforts “to 10 communicate with or to try to get into communication with a person by telephone.” 11 Satterfield v. Simon & Schuster, 569 F.3d 946, 954 (9th Cir. 2009). Although the TCPA 12 does not explicitly refer to texts, as texting did not exist at the TCPA’s enactment, the Ninth 13 Circuit has concluded that text messages are a form of “call.” Id. The Ninth Circuit has 14 even suggested that “a voice message or a text message are not distinguishable,” at least 15 insofar as being an invasion of privacy. Id. The Court is loath to find that Plaintiff lacks 16 standing to bring claims concerning autodialed calls when he alleges that he did receive a 17 type of violative autodialed call, specifically a text. 18 In the same vein, Americana’s motion also operates as a motion to strike pursuant 19 to Rule 12(f). Particularly, Americana requests that the Court (1) strike portions of 20 Plaintiff’s complaint that relate to autodialed calls and (2) strike the class action allegations. 21 Under Rule 12(f), a district court “may strike from a pleading an insufficient defense or 22 any redundant, immaterial, impertinent, or scandalous matter.” However, the Court 23 generally disfavors Rule 12(f) motions. Barnes v. AT&T Pension Ben. Plan-Nonbargained 24 Program, 718 F. Supp. 2d 1167, 1170 (N.D. Cal. 2010); XY Skin Care & Cosmetics, LLC 25 v. Hugo Boss USA, Inc., No. CV-08-1467-PHX-ROS, 2009 WL 2382998, at *1 (D. Ariz. 26 Aug. 4, 2009); Wailua Associates v. Aetna Cas. And Sur. Co., 183 F.R.D. 550, 553-54 (D. 27 Haw. 1998) (“Matter will not be stricken from a pleading unless it is clear that it can have 28 no possible bearing upon the subject matter of the litigation.”). 1 Turning to the amended complaint, the Court is unpersuaded that the portions 2|| referring to “autodialed calls,” such as sections explaining the capacity of different || platforms to make “autodialed calls,” “have no possible bearing upon the subject matter of 4|| the litigation.” Americana has cited the Court to no authority conclusively demonstrating 5 || that the receipt of traditional phone calls is so distinct from the receipt of text messages 6 || under the TCPA that striking any language referring to calls, generally, in the amended || complaint is warranted at this early stage. Americana has similarly failed to demonstrate 8 || how it would be prejudiced by a failure to so strike. 9 Next, turning to the class action issue, this case is not yet at the class certification 10 || stage. Comprehensive briefing of the issues surrounding the proposed class are not before 11 || the Court and it is premature to address the appropriateness of its scope. Although || Americana may assert its objections to the proposed class in response to □□□□□□□□□□□ 13} forthcoming motion for class certification, Plaintiff has not filed the motion and Americana || cannot circumvent that procedure. Consequently, the Court denies Americana’s request 15 || that the Court strike all class action allegations or narrow the putative class’ scope. 16 IT IS ORDERED that Americana’s motion to dismiss (Doc. 16) is DENIED. 17 Dated this 29th day of June, 2020. 18 19 20 {Z, 21 {UO 22 Ugited States Dictric Judge 23 24 25 26 27 28

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