Thomas v. Dun & Bradstreet Credibility Corp.

100 F. Supp. 3d 937, 2015 U.S. Dist. LEXIS 103322, 2015 WL 4698398
CourtDistrict Court, C.D. California
DecidedAugust 5, 2015
DocketCase No. CV 15-03194 BRO (GJSx)
StatusPublished
Cited by7 cases

This text of 100 F. Supp. 3d 937 (Thomas v. Dun & Bradstreet Credibility Corp.) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas v. Dun & Bradstreet Credibility Corp., 100 F. Supp. 3d 937, 2015 U.S. Dist. LEXIS 103322, 2015 WL 4698398 (C.D. Cal. 2015).

Opinion

Proceedings: (IN CHAMBERS) ORDER DENYING MOTION TO DISMISS [16]

BEVERLY REID O’CONNELL, United States District Judge

I. INTRODUCTION

Pending before the Court is Defendant Dun & Bradstreet Credibility Corp.’s (“Defendant”) Motion to Dismiss Plaintiff Jeffrey A. Thomas’s Complaint pursuant [940]*940to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 16.) After considering the papers filed in support of and in opposition to the instant motion, the Court deems this matter appropriate for decision without oral argument of counsel. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the following reasons, the Court DENIES Defendant’s motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is a resident and citizen of the State of Oregon and Executive Vice President of a company called J and J Thomas, Inc. (Compl., ¶¶ 7, Ex. A.) Defendant sells credit building and credibility solutions for businesses. (Compl. ¶ 8.) Plaintiff initiated this putative class action on April 28, 2015, alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §§ 227 et seq., and California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq. Plaintiff seeks to represent a nationwide class of individuals who have received non-emergency telemarketing calls from or on behalf of Defendant to their cellular telephones without prior express consent. (Compl. ¶ 40.)

According to the Complaint, Plaintiff received numerous calls from Defendant to his cellular telephone throughout 2013. (Compl. ¶ 23.) Plaintiff alleges these calls were unlawful under the TCPA because he never granted Defendant permission to contact him about any of Defendant’s business credit services. (Compl. ¶ 22.) Plaintiff further alleges he requested Defendant cease calling him and even asked Defendant to place him on the company’s “do-not-call” list on several occasions; Defendant nevertheless continued to call Plaintiffs cellular telephone. (Compl. ¶ 24.)

On October 7, 2013, Defendant again called Plaintiffs cellular telephone. (Compl. ¶ 25.) Frustrated by the continued calls, Plaintiff sent a cease-and-desist letter on October 8, 2013 detailing his efforts over the past year to be placed on Defendant’s “do-not-call” list. (Compl. ¶ 26, Ex. A.) The letter stated the following, in pertinent part:

[T]he purpose of this letter is to demand that you CEASE AND DESIST contact of any kind with me or any member of J and J Thomas, Inc.[,] to include the following subsidiaries: Concierge Home and Business Watch, J and J Thomas International, Grants Pass Security, and F Wombat and Co. This demand includes but is not limited to, phone calls, texts, emails, faxes and letters/mailers.

(Compl. Ex. A.) Plaintiff provided a copy of the letter to the Federal Communications Commission (“FCC”), Oregon Department of Justice, and State of California Department of Justice. (Compl. ¶ 26.)

Plaintiff contends Defendant’s actions violate the TCPA and constitute unlawful and unfair business practices under the UCL. (Compl. ¶¶ 62-78.) Plaintiff alleges Defendant acted knowingly and willfully by continuing to call Plaintiffs cellular telephone despite his requests to be placed on the company’s “do-not-call” list. (Compl. ¶ 64.) Plaintiff seeks statutory damages under the TCPA, injunctive relief, and an award of attorney’s fees and costs. (Compl. Prayer for Relief.) Defendant now seeks to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 16.) Plaintiff timely opposed the motion, (Dkt. No. 13), and Defendant timely replied, (Dkt. No. 19).

III. LEGAL STANDARD

Under Rule 8(a), a complaint must contain a “short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). If a [941]*941complaint fails to do this, the defendant may move to dismiss it under Rule 12(b)(6). Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” ’ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible on its face “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. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Thus, there must be “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility’ ” that the plaintiff is entitled to relief. Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

Where a district court grants a motion to dismiss, it should provide leave to amend unless it is clear that the complaint could not be saved by any amendment. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.2008) (“Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint' could not be saved by any amendment.”). Leave to amend, however, “is properly denied ... if amendment would be futile.” Carrico v. City & Cty. of S.F., 656 F.3d 1002, 1008 (9th Cir.2011).

IV. DISCUSSION

Defendant challenges Plaintiffs claims under the TCPA on three primary bases. First, Defendant argues Plaintiff lacks statutory standing because he was not a “called party” within the meaning of § 227(b)(1)(A)(iii). Second, Defendant contends the October 7, 2013 call was a business-to-business call and argues § 227(b) (1) (A) (iii) only applies to telemarketing activities directed at consumers. Third, Defendant asserts Plaintiff has failed to plausibly allege Defendant called him using an automatic telephone dialing system (“ATDS”), which is required for liability under § 227(b)(1) (A) (iii).

Defendant also seeks to dismiss Plaintiffs UCL claim. Defendant argues this claim is derivative of Plaintiffs claims under the TCPA and fails for the same reasons stated above.

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100 F. Supp. 3d 937, 2015 U.S. Dist. LEXIS 103322, 2015 WL 4698398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-dun-bradstreet-credibility-corp-cacd-2015.