Heinrichs v. Wells Fargo Bank N.A.

Filing 41

ORDER DENYING 22 MOTION TO DISMISS; AND DENYING 29 MOTION FOR JUDICIAL NOTICE AS MOOT. (whalc2, COURT STAFF) (Filed on 3/7/2014).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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MARK HEINRICHS, individually and on
behalf of all others similarly situated,
No. C 13-05434 WHA
Plaintiff,

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v.
ORDER DENYING
MOTION TO DISMISS; AND
DENYING MOTION FOR
JUDICIAL NOTICE AS MOOT

WELLS FARGO BANK, N.A.,
Defendant.
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INTRODUCTION
This is a putative class action brought under the Telephone Consumer Protection Act.

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Defendant moves to dismiss the amended complaint under Rule 12(b)(6), and requests judicial

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notice of two petitions. For the reasons stated below, the motion to dismiss is DENIED.

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The motion for judicial notice is DENIED AS MOOT.

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STATEMENT
The following well-pled facts are assumed to be true for purposes of this order. In March

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2013, defendant Wells Fargo Bank, N.A. began calling plaintiff Mark Heinrichs, using an

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automatic telephone dialing system that placed prerecorded calls to Heinrichs’ cell phone. This

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was reportedly done so that Wells Fargo could collect debt owed by another party, “Scott.”

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Heinrichs does not owe this debt. Nor does he know who “Scott” is. Heinrichs also has
not provided any personal information — including his cell phone number — to Wells Fargo.
Nevertheless, Wells Fargo “has initiated approximately 20 telephone calls to [Heinrichs’]

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cellular telephone” in an attempt to collect the debt owed by “Scott”. Because Wells Fargo’s

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calls were prerecorded, Heinrichs “had no ability to request that the calls end [or] voice [his]

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complaints regarding the calls to a real person” (Amd. Compl. ¶¶ 11–13, 18).

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On November 22, 2013, Heinrichs initiated this putative class action. He later filed an

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amended complaint on January 15, 2014, alleging two claims — one for violations of the

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Telephone Consumer Protection Act, and the other for knowing and willful violations of that

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Act. Wells Fargo now moves to dismiss the amended complaint under Rule 12(b)(6), and

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requests judicial notice of two petitions. Following full briefing and oral argument, the order

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decides both motions below.
ANALYSIS
MOTION TO DISMISS.

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For the Northern District of California

United States District Court

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1.

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Under Section 227(b)(1)(A) of Title 47 of the United States Code, the TCPA states

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(emphasis added):
It shall be unlawful for any person within the United States, or
any person outside the United States if the recipient is within
the United States —
(A) to make any call (other than a call . . . made with
the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or
prerecorded voice . . .

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*

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(iii) to any telephone number assigned to a
paging service, cellular telephone service,
specialized mobile radio service, or other radio
common carrier service, or any service for which
the called party is charged for the call . . . .

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In their briefs, the parties dispute only one issue: whether or not the “called party” gave
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prior express consent to Wells Fargo’s calls. If the answer is yes, Wells Fargo is exempt from
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liability under Section 227(b)(1)(A). As such, Wells Fargo contends that the amended complaint
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fails to state a claim because there is no allegation that the calls were made without “Scott’s”
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consent. This, of course, assumes that “Scott” was the “called party” for purposes of the consent
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exemption. Heinrichs disagrees, arguing that the he was the “called party” because he actually
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received the calls, though it is uncontested that Wells Fargo was trying to reach “Scott.” To that

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end, Heinrichs did not give consent for those calls (Amd. Compl. ¶ 18).

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While the undersigned judge is inclined to agree with the analysis set forth in Soppet v.

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Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012) — the only appellate decision so far

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to define “called party” for purposes of the consent exemption, as provided under Section

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227(b)(1)(A) — the order need not determine who “the called party” was to decide the present

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Rule 12(b)(6) motion. This is because the consent exemption is not an element of Heinrichs’

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TCPA claims. Our court of appeals has stated (emphasis added):

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Calls otherwise in violation of the TCPA are not unlawful if
made “for emergency purposes or made with the prior express
consent of the called party,” 47 U.S.C. § 227(b)(1)(A);
however, “express consent” is not an element of a TCPA
plaintiff's prima facie case, but rather is an affirmative defense
for which the defendant bears the burden of proof.

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For the Northern District of California

United States District Court

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Grant v. Capital Mgmt. Servs., L.P., 449 F. App’x 598, 600 n.1 (9th Cir. 2011). This is in line
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with the Federal Communications Commission’s regulations, which state that a creditor, such as
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Wells Fargo, “should be responsible for demonstrating that the consumer provided prior express
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consent.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of
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1991, Request of A CA Int’l for Clarification and Declaratory Ruling, 23 F.C.C.R. 559, 565 (Jan.
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4, 2008).
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District courts in this circuit have also recognized the consent exemption as an
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affirmative defense — and not an element of a TCPA claim — at the pleading stage. See, e.g.,
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Sepehry-Fard v. Dep’t Stores Nat’l Bank, 13-CV-03131-WHO, 2013 WL 6574774 (N.D. Cal.
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Dec. 13, 2013) (Judge William H. Orrick); Connelly v. Hilton Grant Vacations Co., LLC,
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12CV599 JLS KSC, 2012 WL 2129364, *3 (S.D. Cal. June 11, 2012) (Judge Janis L.
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Sammartino). Indeed, the defendants in Sepehry-Fard moved to dismiss a TCPA claim under
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Rule 12(b)(6) because the plaintiff had not alleged that the phone calls there were made without
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consent. Nonetheless, Sepehry-Fard held that the plaintiff did not need to affirmatively allege
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such a lack of consent, because “express consent is not an element of a TCPA plaintiff’s prima
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facie case . . . .” 2013 WL 6574774 at *3 (internal quotations omitted). So too here.
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Wells Fargo, however, argues that lack of consent is an element of a TCPA claim

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(Br. 8–9). For support, Wells Fargo points to Meyer v. Portfolio Recovery Associates, LLC, 707

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F.3d 1036, 1043 (9th Cir. 2012), as well as a decision from the undersigned judge, Fields v.

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Mobile Messengers Am., Inc., C 12-05160 WHA, 2013 WL 6073426, *3 (N.D. Cal. Nov. 18,

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2013). Wells Fargo also cites to a string of decisions from outside this jurisdiction to bolster its

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argument. See, e.g., Pugliese v. Prof’l Recovery Serv., Inc., 09-12262, 2010 WL 2632562 (E.D.

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Mich. June 29, 2010).

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None of these decisions are persuasive here. It is true that Meyer listed “the three

an automatic telephone dialing system; (3) without the recipient’s prior express consent,” but

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For the Northern District of California

elements of a TCPA claim” as “(1) the defendant called a cellular telephone number; (2) using

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United States District Court

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this was in the context of a preliminary injunction request, and specifically, the plaintiff’s

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likelihood of success on the merits in that case. 707 F.3d at 1043.

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Fields is likewise distinguishable. There, the undersigned judge only addressed consent

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in connection with a motion for class certification. In fact, the specific issue was “whether

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consent in TCPA putative class actions is a common issue that can be resolved with common

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proof,” with the undersigned judge placing “the burden on plaintiffs to prove a lack of prior

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express consent” in seeking class certification. 2013 WL 6073426 at *3.

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In short, because Meyer and Fields did not decide whether lack of consent must be

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affirmatively pled to survive a Rule 12(b)(6) motion, neither these decisions nor the out-of-

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circuit decisions cited by Wells Fargo override the ones discussed above, at least at this pleading

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stage. The order thus finds that the amended complaint need not allege lack of consent to plead

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a TCPA claim. As Wells Fargo challenges the amended complaint only on consent grounds, its

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motion to dismiss is accordingly DENIED.
MOTION FOR JUDICIAL NOTICE.

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2.

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As part of its reply, Wells Fargo requests judicial notice of two petitions to the FCC for

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expedited declaratory rulings. According to Wells Fargo, these petitions may result in a decision

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on the consent exemption issue, as they would require the FCC to clarify the meaning of “called

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party” under that exemption. In that connection, Wells Fargo has filed a separate motion to stay

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this action, which is set for hearing on April 10, 2014.

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For purposes of the present motion to dismiss, however, it is unnecessary to consider
these two petitions. As such, the motion for judicial notice is DENIED AS MOOT.

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CONCLUSION
For the reasons stated above, the motion to dismiss is DENIED. The motion for judicial

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notice is DENIED AS MOOT. Wells Fargo must file its answer to the amended complaint by 5

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PM ON MARCH 20, 2014.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: March 7, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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