Aussieker v. Goldwater Bank, National Association et al

Filing 44

ORDER signed by Senior District Judge Morrison C. England, Jr., on 5/13/24 GRANTING 36 defendants' Motion to Dismiss without leave to amend. CASE CLOSED (Kastilahn, A)

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Sean C. Wagner (Pro Hac Vice)
[e-mail]
Meagan L. Allen (Pro Hac Vice)
[e-mail]
Adam L. Wilson, (Pro Hac Vice)
[e-mail]
WAGNER HICKS PLLC
831 East Morehead Street, Suite 860
Charlotte NC 28202
Telephone: [phone]
Facsimile: [phone]

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John Forest Hilbert, Esq. (SBN 105827)
[e-mail]
Joseph A. LeVota, Esq. (SBN 226760)
[e-mail]
HILBERT & SATTERLY LLP
409 Camino del Rio S. #104
San Diego, California 92108
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
Goldwater Bank, N.A.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARK AUSSIEKER, individually and on
behalf of all others similarly situated,
Plaintiffs,

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vs.
GOLDWATER BANK, N.A., Does 1-10
inclusive

Case No. 2:22-CV-00851-MCE-DB
ORDER GRANTING DEFENDANT
GOLDWATER BANK, N.A.’S
RENEWED MOTION TO DISMISS
PLAINTIFF’S AMENDED
COMPLAINT [ECF No 36]

Defendant.

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ORDER ON MOTION TO DISMISS

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARK AUSSIEKER, individually and on
behalf of all others similarly situated,

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Case No. 2:22-CV-00851-MCE-DB
ORDER GRANTING DEFENDANT
GOLDWATER BANK, N.A.’S
RENEWED MOTION TO DISMISS
PLAINTIFF’S AMENDED
COMPLAINT [ECF No. 36]

Plaintiffs,

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vs.

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GOLDWATER BANK, N.A., Does 1-10
inclusive

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Defendant.

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The Court having reviewed the submissions of the parties regarding Defendant

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Goldwater Bank, N.A.’s (“Goldwater”) Renewed Motion to Dismiss Plaintiff’s

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Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) (ECF No. 36) finds that

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Plaintiff’s Amended Complaint (ECF No. 4) fails to state a claim upon which relief

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may be granted. For the reasons set forth below, Plaintiff’s Amended Complaint is

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DISMISSED WITH PREJUDICE and without leave to amend.1

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Plaintiff’s Amended Complaint seeks relief under the Telephone Consumer

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Protection Act (“TCPA”), specifically 47 U.S.C. § 227(b)(1)(A) and § 227(b)(1)(B).

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In his Opposition, Plaintiff admits that his Amended Complaint does not plausibly

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allege that the single, text message alleged was sent using an automatic telephone

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dialing system (“ATDS”) as that term has been interpreted by the Ninth Circuit

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following the United States Supreme Court’s decision in Facebook, Inc. v. Duguid,

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141 S. Ct. 1163, 1167 (2021). That is, Plaintiff concedes (and his allegations

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demonstrate) that Goldwater’s dialing equipment did not generate telephone numbers

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using a random or sequential number generator, as is required to state a claim under

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47 U.S.C. § 227(b)(1)(A). See Borden v. eFinancial, LLC, 53 F.4th 1230, 1234 (9th

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Plaintiff’s Request for Judicial Notice (“RJN”) is DENIED. ECF No. 40 (RJN).
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Cir. 2022); Trim v. Reward Zone USA LLC, No. 22-55517, 2023 WL 5043724, at *1

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(9th Cir. Aug. 8, 2023).

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Further, Plaintiff’s contention that the alleged text message utilized “an

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artificial or prerecorded voice” under 47 U.S.C. § 227(b)(1)(A) or § 227(b)(1)(B) is

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unsupported by law or any reasonable reading of the TCPA. See, e.g., Trim v. Reward

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Zone USA LLC, 76 F.4th 1157 (9th Cir. 2023). As both causes of action alleged in

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Plaintiff’s Amended Complaint are legally insufficient, Plaintiff’s Amended

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Complaint must be dismissed for failure to assert a plausible claim for relief pursuant

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to Fed. R. Civ. P. 12(b)(6). Plaintiff concedes he cannot amend in order to state a
Accordingly, Defendants’ Motion to Dismiss (ECF No. 36) is

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valid claim.

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GRANTED without leave to amend. The Clerk of the Court is directed to close this

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case.

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IT IS SO ORDERED.
Dated: May 13, 2024

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