Mendez v. C-Two Group, Inc.

Filing 36

ORDER by Judge Edward M. Chen Granting 23 Defendant Mobilestorm, Inc.'s Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 4/21/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMIE MENDEZ,

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Plaintiff,
v.

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For the Northern District of California

United States District Court

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No. C-13-5914 EMC

C-TWO GROUP, INC., et al.,

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ORDER GRANTING DEFENDANT
MOBILESTORM, INC.’S MOTION TO
DISMISS

Defendants.
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(Docket No. 23)
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Plaintiff Jamie Mendez has filed a class action against Defendants C-Two Group, Inc. and

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mobileStorm, Inc. (“mS”), alleging that Defendants violated the Telephone Consumer Protection

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Act (“TCPA”). See 47 U.S.C. § 227. The Court held a hearing on mS’s motion to dismiss on April

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18, 2014. This order memorializes the Court’s oral rulings.

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More specifically, the Court GRANTS mS’s motion to dismiss for failure to state a claim for

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relief, but this does not bar Ms. Mendez from seeking leave to add mS back to the lawsuit should she

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uncover facts supporting a viable claim against mS during discovery.

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As to what kind of role mS would have to have in order to be held liable, the parties largely

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agreed at the hearing that mS could be held liable if, e.g., it was the originator or controller of the

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content of the text message. See 102 S. Rpt. 178 (1991) (stating that “[t]he regulations concerning

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the use of these machines apply to the persons initiating the telephone call or sending the message

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and do not apply to the common carrier or other entity that transmits the call or message and that is

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not the originator or controller of the content of the call or message”). Also, mS could be held liable

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if it demonstrated a high degree of involvement in, or actual notice of the unlawful activity and

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failed to take steps to prevent the text transmissions. Cf. 47 C.F.R. § 64.1200(a)(3)(vii) (providing

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that a facsimile broadcaster can be liable under such high degree of involvement).

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Because the Court is granting the motion to dismiss, mS’s alternative request for a dismissal

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or stay based on the primary jurisdiction doctrine is technically moot. However, the Court notes

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that, should mS re-enter this litigation, the Court would not be inclined to stay based on the primary

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jurisdiction doctrine without some indication that the FCC would soon be ruling on the issue of

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whether a software provider could be liable under the TCPA in circumstances similar to those

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presented herein.

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This order disposes of Docket No. 23.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: April 21, 2014

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_________________________
EDWARD M. CHEN
United States District Judge

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