Reichman v. Poshmark, Inc.

267 F. Supp. 3d 1278
CourtDistrict Court, S.D. California
DecidedJanuary 3, 2017
DocketCase No. 16-cv-2359 DMS (JLB)
StatusPublished
Cited by3 cases

This text of 267 F. Supp. 3d 1278 (Reichman v. Poshmark, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reichman v. Poshmark, Inc., 267 F. Supp. 3d 1278 (S.D. Cal. 2017).

Opinion

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS COMPLAINT

Honorable Dana M. Sabraw, United States District Judge

Pending before the Court is Defendant Poshmark, Inc.’s motion to dismiss Plaintiff Christopher J. Reichman’s Complaint pursuant to Rule 12(b)(1) and (6) of the Federal Rules, of Civil Procedure. Plaintiff filed an opposition to the motion, and Defendant filéd a reply. For the following reasons, the Court grants in part and denies in part the motion,

I.

BACKGROUND

Defendant operates a mobile application (“app”) that provides users with a platform to sell and purchase used clothing and accessories. (Compl. ¶¶ 7-9.) Users can use the app to list their goods for sale by creating an online “closet” and uploading pictures of the items from their mobile devices. (Compl. ¶¶ 7, 10-11.) Users, can also purchase goods from other users’ closets on their mobile devices by using the app. (Compl. ¶¶ 7,10-11.)

When new users set up their closets, they are asked whether they would like to share their closets with their friends. (Compl. ¶¶ 11-12.) When users select the “yes” option, Defendant allegedly sends a text message to every contact in the users’ contact list stored on their mobile devices. (Compl. ¶ 13.) The text message contains an invitation “to view and buy the wares now being sold through POSHMARK and gives a link to the POSHMARK closet of the person whose Contacts list was used.” (Compl. ¶ 14.) Plaintiff alleges Defendant “does not clearly and conspicuously inform users that it will send a text message to everyone on the Contacts list in their mobile phone.” (Compl. ¶ 17.)

Plaintiffs former client Trida Tolentino downloaded Defendant’s app to sell some of her old clothing. (Compl. ¶ 24.) Ms. To-lentino created a closet and uploaded photos of the clothes she wanted to sell. (Compl. ¶ 25.) After she set up her closet, Ms. Tolentino was asked whether she wanted to share her closet with her friends. (Compl. ¶¶ 25-26.) Ms. Tolentino selected the “yes” option. (Compl. ¶ 26.) Consequently, Defendant sent a text message to every contact in Ms. Tolentino’s contact list, including Plaintiff. (Compl. ¶¶ 13, 27.) On January 25, 2015, Plaintiff received the text message, which contained an invitation to view Ms. Tolentino’s closet.1 .(Compl. ¶¶ 14, 20.)

Based on this single text message, Plaintiff filed the present action against Defendant, alleging a violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii), and a violation of California’s unfair ' competition law (“UCL”)1, Cal. Bus. & Prof. Code §§ 17200 et seq. Plaintiff seeks to represent a class of “[a]ll persons and entities located within the United States of America to whose mobile phones POSHMARK and/or its agents transmitted a text message without' prior express' Written consent anytime from September 15, 2012, to the present.” (Compl. ¶¶ 6, 36.) Defendant now moves to dismiss, challenging Plaintiffs standing to [1282]*1282bring this action and arguing Plaintiff has failed to state a claim under the TCPA and UCL.

II.

LEGAL STANDARD

Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may move to dismiss based on the court’s lack of subject matter jurisdiction. See Fed, R. Civ. P. 12(b)(1). “A federal court is presumed to lack jurisdiction in a particu; lar case unless the contrary affirmatively appears.” Stevedoring Servs. of Am., Inc. v. Eggert, 953 F.2d 552, 554 (9th Cir. 1992) (quoting Stock W., Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989)). “Article III of the Constitution confines the federal courts to adjudication of actual ‘Cases’ and ‘Controversies.’ ” Lujan v. Defs. of Wildlife, 504 U.S. 555, 590, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “The Article III case or controversy requirement limits federal courts’ subject matter jurisdiction by requirihg, inter 'alia, thát plaintiffs have standing and that claims be' ‘ripe’ for adjudication.” Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121-22 (9th Cir. 2010) (citing Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). Consequently, a “lack of Article III standing requires dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).” Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (emphasis omitted),

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. See Fed. R. Civ, P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). In deciding a motion to dismiss, all material factual allegations of the complaint are accepted as true, as well as all reasonable inferences to be drawn from them. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996). A court, however, need not accept all conclusory allegations as true. Rather, it must “examine whether conclusory allegations follow from the description of facts as alleged by the plaintiff.” Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation omitted); see Benson v. Ariz. State Bd. of Dental Exam’rs, 673 F.2d 272, 275-76 (9th Cir. 1982) (court need not accept conclusory legal assertions). A motion to dismiss should be granted if a plaintiffs complaint fails to contain “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

III.

DISCUSSION

A. TCPA Claim

1. Article III Standing

Defendant initially contends Plaintiff lacks standing to bring a claim under the TCPA because he has not adequately alleged a “concrete and particularized” injury caused by Defendant’s alleged TCPA violation.

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Cite This Page — Counsel Stack

Bluebook (online)
267 F. Supp. 3d 1278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reichman-v-poshmark-inc-casd-2017.