Mackinnon v. Hof's Hut Restaurants, Inc.

Filing 20

ORDER granting 15 Motion to Dismiss signed by District Judge John A. Mendez on 11/28/17. (Kaminski, H)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 STEVE MACKINNON, 10 2:17-cv-01456-JAM-DB Plaintiff, 11 12 No. v. HOF’S HUT RESTAURANTS, INC., a California corporation, ORDER GRANTING HOF’S HUT RESTAURANTS, INC.’S MOTION TO DISMISS 13 Defendant. 14 Plaintiff Steve MacKinnon (“Plaintiff”) made a dinner 15 16 reservation at a Hof’s Hut Restaurants, Inc.’s (“Defendant”) 17 restaurant and provided his phone number to receive confirmation 18 of that reservation. 19 message confirming the reservation and providing a link to “View 20 specials”. 21 lawsuit. Compl., ECF No. 1. 22 lawsuit. Mem., ECF No. 11. 23 13. 24 to dismiss with prejudice. 1 Defendant then sent Plaintiff a text Three months later Plaintiff filed this class action Defendant moves to dismiss the Plaintiff opposes. Opp’n, ECF No. For the reasons below, the Court grants Defendant’s motion 25 1 26 27 28 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for November 7, 2017. In deciding this motion, the Court takes as true all well-pleaded facts in the operative complaint. 1 1 2 I. FACTUAL AND PROCEDURAL BACKGROUND In April 2017, Plaintiff made a dinner reservation at 3 Lucille’s Smokehouse Bar-B-Que in Rocklin, California, a 4 restaurant owned by Defendant. 5 reservation, Plaintiff was asked for and provided his cellphone 6 number to the restaurant. 7 Plaintiff a text message reading: 8 9 Compl. ¶¶ 4, 18. See id. When making the The restaurant later sent Welcome to Lucilles Rocklin! Your reservation for 2 is set for 6:00 pm on 4/20/2017. View specials at 10 Id. ¶ 22. 11 on July 13, 2017, alleging that Defendant violated the Telephone 12 Consumer Protection Act (the “TCPA”), 47 U.S.C. §§ 227, et seq., 13 by sending the text message. 14 failure to state a claim. In response, Plaintiff filed this class-action lawsuit Defendant moves to dismiss for See Mem. 15 16 II. OPINION 17 Plaintiff concedes that he “likely provided express consent 18 to Defendant to alert him when his dinner reservation was ready” 19 but contends that this is insufficient to “absolve Defendant of 20 liability [under the TCPA] because Defendant’s message included 21 or introduced advertising” which Plaintiff did not consent to 22 receive in writing. 23 otherwise. 24 See Opp’n at 2-3. The Court finds Under the TCPA, the three elements of a claim are: (1) the 25 defendant called a cellular phone number; (2) using an automatic 26 telephone dialing system; (3) without the recipient’s prior 27 express consent. 28 F.3d 1036, 1043 (9th Cir. 2012) (internal citation and quotation Meyer v. Portfolio Recovery Assocs., LLC, 707 2 1 marks omitted). 2 qualifies as a “call” within the TCPA. 3 Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009). 4 As for the first element, a text message Satterfield v. Simon & For the third element, any call or text message that 5 includes or introduces an advertisement or constitutes 6 telemarketing cannot be made without the prior express written 7 consent of the called or texted party. 8 Mgmt. Corp., No. 1:16-CV-00219-DAD-SKO, 2016 WL 6298528, at *3 9 (E.D. Cal. Oct. 27, 2016) (citing 47 C.F.R. § 64.1200(a)(2)). See Larson v. Harman 10 And a message qualifies as “telemarketing” or “advertising” if 11 it is issued for the purpose of encouraging the purchase or 12 rental of, or investment in, property, goods, or services. 13 C.F.R. § 64.1200(f)(12). 14 whether a message constitutes advertising or telemarketing with 15 “a measure of common sense.” 16 L.P., 705 F.3d 913, 918 (9th Cir. 2012). 17 47 Courts approach the question of See Chesbro v. Best Buy Stores, All non-advertising or non-telemarketing calls or texts 18 made with an automatic telephone dialing system require only the 19 prior express consent of the called party—without having to be 20 in writing. 21 § 64.1200(a)(1)). See Larson, 2016 WL 6298528 at *3 (citing 47 C.F.R. 22 A. 23 The Court finds that Defendant’s text message confirming Allegations of Telemarketing or Advertising 24 Plaintiff’s dinner reservation does not constitute telemarketing 25 or advertising because it is informative and non-telemarketing 26 in nature. 27 03456-WHO, 2015 WL 7454260 (N. D. Cal. Nov. 24, 2015) (finding 28 that text message regarding “free pts” to be redeemed on See Daniel v. Five Stars Loyalty, Inc., No. 15-CV- 3 1 Defendant’s website did not constitute advertising or 2 telemarketing since it just informed plaintiff that joining a 3 rewards program would result in free rewards points). 4 messages “whose purpose is to facilitate, complete, or confirm a 5 commercial transaction that the recipient has previously agreed 6 to enter into with the sender are not advertisements[.]” 7 re Rules & Regs. Implementing the Tel. Consum. Prot. Act of 8 1991, 21 FCC Rcd. 3787, 3812 ¶ 49 (F.C.C., Apr. 6, 2006); see 9 also Wick v. Twilio Inc., No. C16-00914RSL, 2017 WL 2964855 Also, See In 10 (W.D. Wash. July 12, 2017) (text message notifying the plaintiff 11 that his order was incomplete and included a link to complete 12 the order was not telemarketing because the message related to 13 an order the plaintiff initiated). 14 message to Plaintiff confirming his dinner reservation only 15 served to confirm an expected commercial transaction (eating at 16 Defendant’s restaurant) that Plaintiff had initiated. 17 not an advertisement. 18 Similarly, Defendant’s text It was In addition, the phrase “View specials” does not somehow 19 convert the text message into an advertisement. 20 initiated the dining transaction by making a reservation at 21 Defendant’s restaurant. 22 specials (even if it worked, which is apparently debated by the 23 parties) would have facilitated Plaintiff’s dining transaction 24 by allowing him to view specials on his cellphone before sitting 25 down for dinner. 26 49. 27 28 See Compl. ¶ 18. Plaintiff The link to view See In re Rules & Regs., 21 FCC Rcd. at 3812 ¶ Finally, Plaintiff cites Pedro-Salcedo v. Haagen-Dazs Shoppe Co., No. 5:17-CV-03504-EJD, 2017 WL 4536422 (N.D. Cal. 4 1 Oct. 11, 2017) in support of his argument that Defendant’s text 2 message was an advertisement or telemarketing, however, 3 case is from the Northern District of California and is not 4 binding authority. 5 this case. 6 California found that the text message in that case arguably 7 constituted an advertisement because the words “Thank you for 8 joining Haagen-Dazs Rewards! 9 that the transaction (registration for the rewards program) was 10 11 the Also, the facts are distinguishable from In Pedro-Salcedo, the Northern District of Download our app here:.” meant complete without the text message. Id. at *1-2. Here, in contrast, Plaintiff received a text message that 12 confirmed a reservation for an upcoming dinner that Plaintiff 13 initiated. 14 have facilitated the transaction that Plaintiff initiated 15 (eating dinner at Defendant’s restaurant). 16 on Pedro-Salcedo as persuasive or binding authority is, 17 therefore, misplaced. 18 receive an advertisement or telemarketing text message from 19 Defendant. See Compl. ¶ 18. And the “View specials” link would Plaintiff’s reliance The Court finds that Plaintiff did not 20 B. 21 Because the Court finds that Defendant’s text message to Allegations Regarding Consent 22 Plaintiff was not an advertisement, Plaintiff’s written consent 23 was not required before he received the text message. 24 Larson, 2016 WL 6298528, at *4. 25 express consent was required (whether written or not). 26 Larson, 2016 WL 6298528, at *3. 27 with express consent to receive a text message regarding his 28 dinner reservation by providing his phone number to Defendant. See Instead, only Plaintiff’s See Plaintiff provided Defendant 5 1 See Compl. ¶¶ 18, 20; see also Roberts v. PayPal, Inc., No. C 2 12-0622 PJH, 2013 WL 2384242, at *3-5 (N.D. Cal. May 20, 2013) 3 (finding that prior express consent to receive a call is given 4 when the called party voluntarily proffers his telephone number 5 to the calling party); see also Baird v. Sabre Inc., 995 F. 6 Supp. 2d 1100, 1102-03, 1106-07 (C.D. Cal. 2014) (finding that 7 Baird’s act of providing her cellphone number was a voluntary 8 act and that, as a result, she consented to be contacted on her 9 cellphone about flight-related matters). 10 Since the Court has found that Plaintiff’s allegations 11 establish that he provided the requisite consent to receive 12 Defendant’s text message, the inquiry ends. 13 and does not, reach the issue of (1) whether Defendant used an 14 Automatic Telephone Dialing System (“ATDS”) in sending the text 15 message giving rise to this lawsuit and (2) whether Plaintiff is 16 within the zone of interest that Congress intended to be 17 protected by the TCPA. 18 The Court need not, Finally, Plaintiff seeks leave to amend should the Court 19 grant the motion to dismiss. 20 not grant leave to amend where amendment would be futile. 21 Deveraturda v. Globe Aviation Sec. Servs., 454 F.3d 1043, 1049- 22 1050 (9th Cir. 2006). 23 no facts that legally support his TCPA claim. 24 not pointed to any additional facts showing that amendment could 25 save his claim. 26 /// 27 /// 28 /// Opp’n at 11. But the Court need As explained above, Plaintiff has pleaded And Plaintiff has The Court denies Plaintiff’s request. 6 1 2 3 4 5 III. ORDER For the reasons above, the Court GRANTS Defendants’ motion to dismiss WITH PREJUDICE. IT IS SO ORDERED. Dated: November 28, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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