Reardon v. Uber Technologies, Inc.

115 F. Supp. 3d 1090, 2015 U.S. Dist. LEXIS 94183, 2015 WL 4451209
CourtDistrict Court, N.D. California
DecidedJuly 19, 2015
DocketCase No. 14-cv-05678-JST
StatusPublished
Cited by9 cases

This text of 115 F. Supp. 3d 1090 (Reardon v. Uber Technologies, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reardon v. Uber Technologies, Inc., 115 F. Supp. 3d 1090, 2015 U.S. Dist. LEXIS 94183, 2015 WL 4451209 (N.D. Cal. 2015).

Opinion

ORDER GRANTING MOTION TO DISMISS IN PART

Re: ECF No. 25

JON Si TIGAR, United States District Judge

Before the Court is Uber Technologies, Inc.’s (“Uber”) Motion to Dismiss. ECF No. 25. For the reasons set forth below, the Court will grant the motion in part and deny it in part..

I. BACKGROUND1

On December 31, 2014, Plaintiffs filed this class action, alleging that Uber’s practice of sending text messages to recruit .drivers violates the Telephone Consumer [1092]*1092Protection Act (“TCPA”). First Am. Compl., ECF No. 10, ¶1. Specifically, Plaintiffs allege that they received texts from Uber without having expressly consented to receive them. Id., ¶¶ 33, 50, 67, 81, 96,110, 121. Plaintiffs Jonathan Grin-dell, Jennifer Reilly, and Justin Bartolet further allege that they continued to receive texts after they asked Uber to stop sending them texts. Id,, ¶¶73, 104, 105, 116.

Uber, a Delaware corporation with its principal place of business in San Francisco, “is a nationwide passenger transportation service that connects riders and drivers through a cellular telephone application.” Id., Iff 5, 23. Uber riders use the application to “request and pay for on-demand car services,” while Uber drivers “receive requests from Uber users via the” application and “use their own cars to provide the car services____” Id., ¶¶ 6, 7. According to Plaintiffs, “Uber’s recruiting tactics include sending prolific text messages to prospective Uber drivers.” Id., ¶ 10. As evidence of the same, Plaintiffs cite an article that “discusses complaints filed with the Federal Trade Commission that describe the high volume of text messages people have received from Uber and their inability to make them stop.” Id., ¶¶ 11, 12,

The complaint is filed on behalf of seven named plaintiffs. ' Id., ¶¶ 24, 36, 53, 70, 84, 99,113. Two of the named plaintiffs, Julie McKinney and Sandeep Pal, have never been Uber members, drivers, or users, and have never applied to be Uber- drivers or given Uber their cellular telephone numbers. Id., ¶¶ 24, 84. These plaintiffs have been dubbed the “Class A” Plaintiffs. Id., ¶ 124. The other five named plaintiffs— the “Class B” Plaintiffs, Kerry Reardon, James Lathrop, Jonathan Grindell, Jennifer Reilly, and Justin Bartolet — began the driver-application process through Uber’s website, but only Reardon completed the application process. None of the Plaintiffs became drivers. Id., ¶¶ 36, 53, 54, 55, 70, 99, 113, 125. During the application process, the Class B Plaintiffs provided Uber with their cellular telephone numbers. Id. All of the named plaintiffs allege that they received text messages from Uber recruiting them as drivers. Id., ¶¶ 33, 50, 67, 81, 96,110,121.

On February 27, 2015, Uber filed its Motion to Dismiss the claims of all of the Class B Plaintiffs, contending primarily that each provided his or her cellular telephone number to Uber during the driver-application process and therefore provided prior express consent to receive the complained-of text messages. ECF No. 25 at I. Uber contends that this prior express consent, an affirmative defense under the TCPA, appears on the face of the complaint, and therefore the complaint can be challenged at this stage of the proceedings. Id. at 1, 2-3. Plaintiffs filed their opposition, and Uber replied. ECF-Nos. 28, 33.

The Court requested supplemental briefing asking whether members of Class B who did not complete the application process “provided” their cell phone numbers to Uber within the meaning of a Federal Communications Commission order issued in 1992. ECF No. 44. Uber and Plaintiffs submitted supplemental briefs. See ECF Nos. 45, 46, and 47.

II. JURISDICTION

This Court has jurisdiction over this action pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d). Plaintiffs have alleged more than $5 million in controversy and the parties are minimally diverse. This Court also has federal question jurisdiction over the action, which was brought under the federal TCPA, 47 U.S.C. § 227 et seq., pursuant to 28 U.S.C. § 1331.

[1093]*1093III. LEGAL STANDARD

A court may dismiss a complaint or claims asserted therein pursuant tp .Federal Rule of Civil Procedure 12(b)(6). The court should grant a motion to dismiss for failure to state a claim under Rule 12(b)(6) if the complaint does not proffer “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In considering a motion to dismiss, the court accepts the material facts alleged in the complaint, together with all reasonable inferences 'to be drawn from those facts, as true. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). But “the tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere con-clusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court will dismiss a claim when it is not based on a cognizable legal theory or the plaintiff has not pleaded sufficient facts to support that theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1990).

A court may consider and dismiss a complaint based on an affirmative defense where the defense is apparent from the face of the complaint. Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir.2013) (citations omitted). If a court dismisses the complaint or a claim alleged therein, it must grant leave to amend unless amendment would be futile. Lucas v. Dep’t of Corrections, 66 F.3d 245, 248 (9th Cir.1995).

IV. DISCUSSION

Uber makes three arguments in support of its motion. First, Uber asserts that because the texts at issue were not advertisements or telemarketing, Plaintiffs need only have provided “prior express consent,” rather than “prior express written consent,” for Uber to have lawfully sent the texts. ECF No. 25 at 3-7.

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Bluebook (online)
115 F. Supp. 3d 1090, 2015 U.S. Dist. LEXIS 94183, 2015 WL 4451209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reardon-v-uber-technologies-inc-cand-2015.