Snyder v. Landcar Management LTD

• Court: District Court, D. Arizona
• Decided: March 23, 2023
• Docket: 2:22-cv-00705
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ronald Snyder, No. CV-22-00705-PHX-DLR

10 Plaintiff, ORDER

11 v.

12 Landcar Management LTD,

13 Defendant. 14 15 16 Pending before the Court is Defendant Landcar Management LTD’s motion to 17 dismiss Plaintiff Ronald Snyder’s first amended complaint. (Doc. 15.) The motion is fully 18 briefed and is denied for the reasons below.1 (Docs. 20, 21.) 19 I. Background2 20 Plaintiff registered his residential landline phone number with the national do-not- 21 call list in 2006. In March 2022, he received a call to his landline from phone number 858- 22 705-4277. He did not answer that call and received a pre-recorded voicemail promoting 23 the products and services offered by Larry H Miller Jeep Chrysler, the business name of 24 Defendant. The phone number is associated with Joe Jaehnig, at that time an employee of 25 1 Oral argument is denied because the issues are adequately briefed and oral 26 argument will not help the Court resolve the motion. See Fed. R. Civ. P. 78(b); LRCiv. 7.2(f); Lake at Las Vegas Investors Grp., Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th 27 Cir. 1991). 2 The background comes entirely from the first amended complaint, (Doc. 12), and 28 Plaintiff’s “well-pled factual allegations are taken as true and construed in the light most favorable to [him].” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). 1 Defendant’s. 2 Later in March 2022, he received another call from the same number. He answered 3 this call, and the same or similar pre-recorded message began playing. Plaintiff never 4 consented to these calls. Plaintiff alleges that the calls were made using a dialing platform 5 providing ringless voicemail (“RVM”) services. Plaintiff also alleges that RVM 6 technology isn’t foolproof: sometimes an RVM can belie its moniker and ring a telephone, 7 especially on calls made to landlines. Plaintiff sued Defendant under the Telephone 8 Consumer Protection Act, alleging that Defendant violated 47 U.S.C. § 227(c) by soliciting 9 him at a phone number he had placed on the do-not-call list over a decade ago. 10 II. Subject-Matter Jurisdiction: Standing 11 Defendant challenges Plaintiff’s standing to bring a TCPA claim, a component of 12 subject-matter jurisdiction. Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 13 1121 (9th Cir. 2010). This challenge is properly raised under Federal Rule of Civil 14 Procedure 12(b)(1), and it may take two forms: facial or factual. Safe Air for Everyone v. 15 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). This attack is a factual one because Defendant 16 challenges the factual possibility that Plaintiff received a call that rang his phone. (Doc. 15 17 at 2.) 18 To resolve a “factual attack on jurisdiction, the district court may review evidence 19 beyond the complaint without converting the motion to dismiss into a motion for summary 20 judgment.” Safe Air, 373 F.3d at 1039. The Court need not presume the truthfulness of a 21 plaintiff’s allegations. Id. Instead, once a defendant has presented affidavits or other 22 evidence properly brought before the Court, the plaintiff bears the burden to “prov[e] by a 23 preponderance of the evidence that each of the requirements for subject-matter jurisdiction 24 has been met.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). 25 Three elements must be present for a plaintiff to have standing: (1) the plaintiff must 26 have “suffered an injury in fact;” (2) there must be a “causal connection between the injury 27 and the conduct complained of;” and (3) it must be “likely, as opposed to merely 28 speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders 1 of Wildlife, 504 U.S. 555, 560-561 (1992). Defendant attacks only the first element. An 2 injury in fact must be concrete and particularized. Spokeo, Inc. v. Robins, 578 U.S. 330, 3 334 (2016). 4 The Ninth Circuit is clear: a bare procedural “violation of the TCPA is a concrete, 5 de facto injury.”3 Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 6 2017). In other words, properly stating a violation of the TCPA, without more, establishes 7 the injury in fact requirement. For this reason, the Court is unpersuaded by Defendant’s 8 reliance on out-of-circuit cases to establish that standing under the TCPA requires a 9 showing beyond a mere procedural violation—like shouldering the costs of printing 10 unwanted faxes, or missing calls when a telemarketer ties a line up, or significant time 11 spent reviewing voicemails. (Doc. 15 at 8 (citing Grigorian v. FCA US LLC, 838 F. App’x 12 390, 394 (11th Cir. 2020) and Dickson v. Direct Energy, LP, No. 5:18CV182, 2022 WL 13 889207, at *3 (N.D. Ohio Mar. 25, 2022)).) 14 Plaintiff’s TCPA claims arise under 47 U.S.C. § 227(c). To establish a procedural 15 violation, Plaintiff need merely allege that he (1) placed his phone number on the do-not- 16 call list and yet (2) received an unsolicited telemarketing call to that number. 47 C.F.R. § 17 64.1200(c)(2) (implementing 47 U.S.C. § 227(c)); see also Chennette v. Porch.com, Inc., 18 50 F.4th 1217, 1223 (9th Cir. 2022). Plaintiff alleges he received two unsolicited phone 19 calls from Defendant regarding Defendant’s products and services. He has thus alleged, at 20 minimum, a procedural violation of the TCPA, which establishes standing. Were 21 Defendant’s challenge a facial challenge, the inquiry would end here. 22 But Defendant contends it is a factual impossibility that Plaintiff answered a call or 23 that Defendant caused Plaintiff’s landline to ring because it “only would have reached out 24 [to Plaintiff] via ringless voicemail.” (Docs. 15 at 7, 15-1 at 2.) And receiving an RVM, 25 according to Defendant, is not a concrete or particularized injury because it is not a “call” 26 that triggers liability under the TCPA. 27 3 Because of this statement of law, the standing analysis will resemble the analysis 28 under Rule 12(b)(6), but they are separate. For standing under the TCPA, a Plaintiff may establish that he has suffered an injury merely by properly alleging a violation of the TCPA. 1 The Ninth Circuit defines a call under the TCPA as “to communicate with or try to 2 get into communication with a person by telephone.” Satterfield v. Simon & Schuster, Inc., 3 569 F.3d 946, 954 (9th Cir. 2009). Satterfield reached this conclusion by reviewing In Re 4 Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014 5 (2003) (hereinafter “2003 Report & Order”) and adopting the Federal Communications 6 Commission’s (“FCC”) definition. Id. at 955. That same FCC order also addresses pre- 7 recorded calls that are delivered to answering machines: 8 Congress found that “residential telephone subscribers consider automated or prerecorded telephone calls . . . to be a 9 nuisance and an invasion of privacy.” It also found that “[b]anning such automated or prerecorded telephone calls to 10 the home, except when the receiving party consents to receiving the call or when such calls are necessary in an 11 emergency situation affecting the health and safety of the consumer, is the only effective means of protecting telephone 12 consumers from this nuisance and privacy invasion.” Congress determined that such prerecorded messages cause greater harm 13 to consumers privacy than telephone solicitations by live telemarketers. The record reveals that consumers feel 14 powerless to stop prerecorded messages largely because they are often delivered to answering machines and because they 15 do not always provide a means to request placement on a do- not-call list. 16 17 2003 Report & Order, 18 F.C.C. Rcd. at 14097 (footnotes omitted) (emphasis added). The 18 Ninth Circuit recognizes not only traditional phone calls as “calls” under the TCPA but 19 also text messages. Van Patten, 847 F.3d at 1043 (“Unsolicited telemarketing phone calls 20 or text messages, by their nature, invade the privacy and disturb the solitude of their 21 recipients”). 22 Defendant’s RVM argument adds a wrinkle not contemplated by the 2003 Report 23 & Order: a RVM can cause a pre-recorded messages to end up on answering machines 24 without first ringing the telephone associated with that answering machine. But whether a 25 phone rings or not, a RMV enables a telemarketer to “get in touch” with a consumer via 26 telephone by communicating a message to the consumer’s voicemail for the consumer to 27 hear. And it’s not clear why leaving a voicemail using “ringless” technology would be any 28 less of a nuisance or invasion of privacy or ameliorate the “powerless[ness]” consumers 1 feel when they confront an answering machine with unsolicited, prerecorded telemarketing 2 calls. 3 The Court concludes that RVMs fall within the scope of the TCPA’s definition of a 4 call: “to communicate or try to get into communication with a person by telephone.” 5 Satterfield, 569 F.3d 954; see Caplan v. Budget Van Lines, Inc., No. 220CV130JCMVCF, 6 2020 WL 4430966, at *4 (D. Nev. July 31, 2020). Thus, even crediting Defendant’s 7 argument that Plaintiff would have only ever received RVMs from Defendant, receipt of 8 RVMs are calls under the TCPA, which establishes injury in fact. Plaintiff has standing. 9 III. Prudential Standing 10 Defendant further contends that Plaintiff does not fall into the “zone of interests” 11 that the TCPA was designed to protect and therefore lacks prudential standing. Not so. 12 Congress enacted the TCPA to safeguard consumer privacy by protecting consumers from 13 unwanted marketing calls. Van Patten, 847 F.3d at 1043. Further, the Congressional record 14 “reveals that consumer feel powerless” when confronted with prerecorded telemarketing 15 messages, even those messages “delivered to answering machines.” 2003 Report & Order, 16 18 F.C.C. Rcd. at 14097 (2003). Even assuming that Plaintiff received RVMs, the end 17 result was the same: a prerecorded telemarketing message would have been delivered to 18 his answering machine, triggering the privacy and nuisance concerns Congress had when 19 it enacted the TCPA. Plaintiff’s allegations fall into the TCPA’s zone of interests. 20 IV. Failure to State a Claim 21 To survive motion to dismiss under Rule 12(b)(6), a complaint must contain factual 22 allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. 23 v. Twombly, 550 U.S. 544, 555 (2007). The task when ruling on a motion to dismiss “is to 24 evaluate whether the claims alleged [plausibly] can be asserted as a matter of law.” Adams 25 v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); accord Ashcroft v. Iqbal, 556 U.S. 662, 26 678 (2009). When analyzing the sufficiency of a complaint, the well-pled factual 27 allegations are taken as true and construed in the light most favorable to the plaintiff. 28 Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions 1 || couched as factual allegations are not entitled to the assumption of truth, Jgbal, 556 U.S. || at 680, and therefore are insufficient to defeat a motion to dismiss for failure to state a claim, Jn re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2008). 4 Defendant’s sole argument under Rule 12(b)(6) dovetails with its standing 5 || argument, that Plaintiff has not alleged he received a call under the TCPA because RVMs 6 || are not calls under the TCPA. For the reasons set out above, the Court rejects this argument. 7\| RVMs are calls under the TCPA. See, e.g., Caplan, 2020 WL 4430966, at *4. 8 || V. The Remedies 9 Defendant argues that Plaintiff has not pled sufficient facts to allege the proper state 10 || of mind for treble damages. But Rule 9(b) allows a plaintiff to plead state of mind generally, and Plaintiff has done so here. The Court will not preclude this remedy at the pleading 12|| stage. 13 Defendant also argues that Plaintiff has not pled sufficient facts to show a threat that Defendant would call him again. But Plaintiff has alleged that he received two calls from 15 || Defendant, so it is plausible that he might receive another call from Defendant. There is no || reason to foreclose this potential remedy on a motion to dismiss. 17 IT IS ORDERED that Defendant’s motion to dismiss (Doc. 15) is DENIED. 18 Dated this 23rd day of March, 2023. 19 20 21 {Z, 22 _- {UO 23 Ueited States Dictric Judge 24 25 26 27 28

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