Abante Rooter and Plumbing, Inc. v. Pivotal Payments, Inc.

Filing 27

ORDER by Judge Joseph C. Spero denying 15 Motion to Dismiss, vacating motion hearing set for March 3, 2017 at 9:30 am and moving Case Management Conference set for the same date from 9:30 am to 2:00 pm. (jcslc1S, COURT STAFF) (Filed on 2/24/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ABANTE ROOTER AND PLUMBING,
INC.,

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Case No. 16-cv-05486-JCS

Plaintiff,

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ORDER DENYING MOTION TO
DISMISS PURSUANT TO

v.

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PIVOTAL PAYMENTS, INC.,
Defendant.

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FEDERAL RULES OF CIVIL
PROCEDURE 12(B)(1) AND
12(B)(6)

United States District Court
Northern District of California

Re: Dkt. No. 15
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I.

INTRODUCTION
Plaintiff Abante Rooter and Plumbing, Inc. (―Abante‖) brings this putative class action

under the Telephone Consumer Protection Act (―TCPA‖), 47 U.S.C. §§ 227, et seq., alleging that
Defendant Pivotal Payments, Inc. (―Pivotal‖) was responsible for ―robocalls‖ placed to several
cellular telephone numbers used by Abante to communicate with its customers. Pivotal brings a
Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (―Motion‖)
asserting, inter alia, that Abante‘s complaint is subject to dismissal for lack of subject matter
jurisdiction because Abante has not demonstrated the existence of Article III standing under
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). The Court finds that the Motion is suitable for

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determination without oral argument pursuant to Civil Local Rule 7-1(b) and therefore vacates the
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motion hearing set for Friday, March 3, 2017 at 9:30 a.m. The Initial Case Management
Conference that was set for the same time is rescheduled to occur at 2:00 p.m. rather than at
9:30 a.m. on March 3, 2017. For the reasons stated below, the Motion is DENIED.1

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The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28
U.S.C. § 636(c).

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II.

BACKGROUND

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A.

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Abante is a corporation based in California, with its principal place of business in Alameda

The Complaint

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County, California. Complaint ¶ 2. It is a ―small plumbing company that provides an array of

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commercial and residential draining and plumbing services, including emergency draining and

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plumbing services‖ in the San Francisco Bay area. Id. ¶ 23. Abante uses several cellular

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telephone numbers that are assigned to different cities around the San Francisco Bay Area,

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including (209) 383-XXXX, (925) 253-XXXX, and (510) 351-XXXX, to conduct its business. Id.

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¶ 24. Abante ―receives important, and often urgent, calls from current and potential customers on
each of the above-listed cellular telephone numbers.‖ Id. ¶ 26. According to Abante, ―because

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Plaintiff‘s business provides emergency services, every call made to its telephone number could be

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[a] new customer with a crisis situation.‖ Id. ¶ 28.

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Abante alleges that Pivotal ―is a leading provider of technology-driven global payment

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processing solutions for small to large enterprises.‘‖ Id. ¶ 14 (quotation omitted). One of its

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divisions is Capital Processing Network or CPN (―CPN‖), which Pivotal acquired in 2014. Id. ¶

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16. According to Abante, CPN ―provides complete merchant services and credit card processing

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to point-of-sale businesses across the U.S.‖ Id. (internal quotation omitted). Abante further

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alleges that ―[o]ne of [Pivotal‘s] strategies for marketing its credit card processing services

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involves the use of an automatic telephone dialing system (‗ATDS‘) to solicit business.‖ Id. ¶ 18.

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Abante alleges that Pivotal uses this ATDS to make unsolicited calls that play recorded messages

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to cellular telephone numbers. Id. ¶¶ 20-21. The recipients of these calls – including Abante –

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have not consented to receive such calls. Id.

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Abante alleges the following specific facts regarding the ―robocalls‖ that are the subject of

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this action, which the Court repeats verbatim because Pivotal asserts they are not sufficient to

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support an inference that the calls were made by or on behalf of Pivotal:

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29. On or around July 15, 2016, Plaintiff received a telemarketing call on its
cellular telephone number, (925) 253-XXXX, from, or on behalf of, Pivotal
Payments.

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30. The caller ID showed the telephone call was from [phone].
31. When the call was answered, there was a lengthy pause and a click
followed by silence before any voice came on the line, which indicated to
him that the call was made using an ATDS.
32. Following the lengthy pause and extended silence, a prerecorded
message played, stating words to the effect that the call was marketing
credit card processing services. The called party was instructed to press a
button on their telephone for further information.
33. In an attempt to determine the identity of the caller, Plaintiff pressed the
button for further information and was instructed to leave a voice message
with a telephone number by another prerecorded voice.
34. In a further attempt to determine the identity of the caller, Plaintiff left a
voice message requesting a call back at telephone number (510) 534XXXX.
35. Shortly after leaving the voice message, Plaintiff received a call on
Plaintiff‘s cellular telephone number, (925) 253-XXXX, from a person who
identified himself as Leif Gates.
36. Shortly after Mr. Gates identified himself, the call unintentionally
disconnected.
37. Later on July 15, 2016, Plaintiff received a telemarketing call on its
cellular telephone number, (209) 383-XXXX, from, or on behalf of, Pivotal
Payments.
38. The caller ID showed the telephone call was from [phone].
39. When the call was answered, there was again a lengthy pause and a
click followed by silence before any voice came on the line, which
indicated to him that the call was made using an ATDS.
40. Following the lengthy pause and extended silence, a prerecorded
message played stating words to the effect that the call was marketing credit
card processing services. The called party was instructed to press a button
on their phone for further information.
41. Again, in an attempt to determine the identity of the caller, Plaintiff
pressed the button for further information and was instructed to leave a
voice message with a telephone number by another prerecorded voice.
42. In a further attempt to determine the identity of the caller, Plaintiff left a
voice message requesting a call back at telephone number (510) 459XXXX.
43. After leaving the voice message, Plaintiff received a call on Plaintiff‘s
cellular telephone number, (510) 459-XXXX, on July 18, 2016 from a
person who identified herself as ―Amanda of CPN USA.‖
44. Amanda informed Plaintiff that the purpose of the call was to offer
Plaintiff credit card processing services provided by CPN.
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45. On July 18, 2016, after speaking with Amanda, Plaintiff received a
follow up email from Amanda Hanf at [e-mail], which identified
Ms. Hanf as a senior account executive at CPN.
46. The email further encouraged Plaintiff to ―check out our website at
www.cpnusa.com‖ and detailed the cost saving credit card processing
services CPN could provide.
47. On August 19, 2016, Amanda called Plaintiff twice to market CPN‘s
credit card processing services.
48. In response to these two telephone calls from Amanda, Plaintiff
requested that CPN cease calling.
49. On or around July 19, 2016, Plaintiff received another telemarketing
call on its cellular telephone number, (510) 351-XXXX, from, or on behalf
of, Pivotal Payments.
50. The caller ID showed the telephone call was from [phone].
51. When Plaintiff answered the telephone call, there was again a lengthy
pause and a click followed by silence before any voice came on the line,
which indicated to him that the call was made using an ATDS.
52. Following the lengthy pause and extended silence, a prerecorded
message played stating words to the effect that the call was marketing credit
card processing services. The called party was instructed to press a button
on their telephone for further information.
53. Again, in an attempt to determine the identity of the caller, Plaintiff
pressed the button for further information and was instructed to leave a
voice message with a telephone number by another prerecorded voice.

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54. On or around July 28, 2016, Plaintiff received another telemarketing
call on its cellular telephone number, (925) 253-XXXX, from, or on behalf
of, Pivotal Payments.

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55. The caller ID showed the telephone call was from [phone].

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56. When Plaintiff answered the telephone call, there was again a lengthy
pause and a click followed by silence before any voice came on the line,
which indicated to him that the call was made using an ATDS.

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57. Following the lengthy pause and extended silence, a prerecorded
message played stating words to the effect that the call was marketing credit
card processing services. The called party was instructed to press a button
on their telephone for further information.
58. Again, in an attempt to determine the identity of the caller, Plaintiff
pressed the button for further information and was instructed to leave a
voice message with a telephone number by another prerecorded voice.
59. In a further attempt to determine the identity of the caller, Plaintiff left a
voice message requesting a call back at telephone number (209) 383XXXX.
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60. On July 28, 2016, shortly after leaving the voice message, Plaintiff
received a call on Plaintiff‘s cellular telephone number, (209) 383-XXXX,
from Leif Gates at CPN USA.
61. Mr. Gates informed Plaintiff that the purpose of the call was to offer
Plaintiff credit card processing services provided by CPN.
62. On July 28, 2016, after speaking with Mr. Gates, Plaintiff received a
follow up email from Leif Gates-Suppah at [e-mail], which
identified Mr. Gates as a senior account executive at CPN.
63. Immediately after sending his email, Mr. Gates called Plaintiff again to
confirm that he had received the email.
64. Plaintiff promptly responded to Mr. Gates‘ email on July 28, 2016 with
simply the words ―not interested.‖
65. Not to be deterred, Mr. Gates then sent Plaintiff another email
marketing CPN‘s credit card processing services.
66. On or around July 28, 2016, Plaintiff received another telemarketing
call on its Oakland cellular telephone number, (510) 351-XXXX, from, or
on behalf of, Pivotal Payments.
67. The caller ID showed the telephone call was from [phone].
68. When Plaintiff answered the telephone call, there was again a lengthy
pause and a click followed by silence before any voice came on the line,
which indicated to him that the call was made using an ATDS.
69. Following the lengthy pause and extended silence, a prerecorded
message played stating words to the effect that the call was marketing credit
card processing services. The called party was instructed to press a button
on their telephone for further information.
70. Again, in an attempt to determine the identity of the caller, Plaintiff
pressed the button for further information and was instructed to leave a
voice message with a telephone number by another prerecorded voice.
71. In a further attempt to determine the identity of the caller, Plaintiff left a
voice message requesting a call back at telephone number (510) 385XXXX.
72. Only July 28, 2016, shortly after leaving the voice message, Plaintiff
received a call on Plaintiff‘s Oakland cellular telephone number, (510) 385XXXX, from Amanda at CPN USA.
Id. ¶¶ 29-72.
Abante alleges that it has ―never been a customer of Pivotal Payments, nor has it ever been

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interested in being a customer of Pivotal Payments.‖ Id. ¶ 73. It further alleges that it ―did not

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provide prior express written consent to receive ATDS generated or prerecorded calls on any of its

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cellular telephone numbers from, or on behalf of, Pivotal Payments.‖ Id. ¶ 74. Finally, it alleges
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that its ―privacy has been violated by the above-described calls from, or on behalf of, Pivotal

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Payments, and they constitute a nuisance as they are annoying and harassing.‖ Id. ¶¶ 75-76.

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Based on these factual allegations, Abante asserts two claims under the TCPA: 1) a claim

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under 47 U.S.C. § 227(b)(3)(B) seeking $500 for each call that violates 47 U.S.C. § 227(b)(1)(A)

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and an injunction prohibiting further violations of the TCPA; and 2) a claim under 47 U.S.C. §

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227(b)(3) for treble damages of up to $1,500 for each call that constitutes a knowing and/or willful

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violation of 47 U.S.C. § 227(b)(1)(A).

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B.

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In the Motion, Pivotal contends Abante has not alleged a concrete injury to demonstrate

The Motion

that it has standing under Article III of the U.S. Constitution and therefore, that the complaint

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Northern District of California

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should be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of

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subject matter jurisdiction. Motion at 2-15. Pivotal relies primarily upon two out-of-district cases

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in support of this argument, Romero v. Dep’t Stores Nat’l Bank, No. 15-CV-193-CABMDD, 2016

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WL 4184099, at *4 (S.D. Cal. Aug. 5, 2016) and Ewing v. SQM US, Inc., No. 3:16-CV-1609-

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CAB-JLB, 2016 WL 5846494, at *2 (S.D. Cal. Sept. 29, 2016). In these cases, Pivotal contends,

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the courts found that there was no concrete injury that was actually caused by alleged TCPA

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violations because any annoyance caused by the calls or charges incurred by the recipients would

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have been experienced even if the calls had been made manually instead by use of an ATDS. Id.

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at 3-4. Similarly here, Pivotal asserts, Abante cannot show that any concrete injury resulted from

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the fact that the calls it allegedly received were placed using an ATDS rather than by making those

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same calls by dialing manually. Id. at 4. Pivotal further contends that to the extent Abante alleges

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an invasion of privacy to demonstrate concrete injury, that allegation fails because a corporation

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has no right to privacy. Id. at 4-5. Finally, Pivotal argues that any harm Abante alleges is de

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minimis and insufficient to establish standing because Abante only identified three telephone calls

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it contends violated the TCPA. Id. at 5.

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Pivotal also argues that Abante fails to state a claim under Rule 12(b)(6) because it has not

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alleged sufficient facts to support a plausible inference that Pivotal ―made‖ the robocalls that

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Abante allegedly received. Id. at 6-7. In addition, Pivotal contends, Abante‘s claims fail because
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under ―47 U.S.C. § 227(b)(5),‖2 it must allege that it received more than one robocall from

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Defendant to state a claim. Id. at 7. According to Pivotal, because Abante alleged that only one

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call was made to its 209-383-XXXX number, the claims fail as to that number. Id.
Finally, Pivotal argues that the Court should strike certain allegations in the Complaint

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under Rule 12(f) of the Federal Rules of Civil Procedure on the basis that they are irrelevant. Id.

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at 7-8. In particular, it argues that the Court should strike allegations in the Complaint relating to

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calls that were made to Abante‘s 209-383-XXXX number and alleging its right to privacy was

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invaded for the reasons stated above. Id.

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III.

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A.

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ANALYSIS
Subject Matter Jurisdiction
1. Legal Standard Under Rule 12(b)(1)
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a district court must

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dismiss an action if it lacks jurisdiction over the subject matter of the suit. See Fed. R. Civ. P.

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12(b)(1). ―Subject matter jurisdiction can never be forfeited or waived and federal courts have a

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continuing independent obligation to determine whether subject-matter jurisdiction exists.‖ Leeson

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v. Transamerica Disability Income Plan, 671 F.3d 969, 975 n.12 (9th Cir. 2012) (internal

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quotation marks and citations omitted). On a motion to dismiss for lack of subject matter

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jurisdiction under Rule 12(b)(1), it is the plaintiff‘s burden to establish the existence of subject

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matter jurisdiction. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1197 (9th

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Cir. 2008). A party challenging the court‘s subject matter jurisdiction under Rule 12(b)(1) may

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bring a facial challenge or a factual challenge. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.

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2000). In evaluating a facial challenge to subject matter jurisdiction, the court accepts the factual

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allegations in the complaint as true. See Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir.

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2001). Where a defendant brings a factual challenge, on the other hand, ―a court may look beyond

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the complaint to matters of public record without having to convert the motion into one for

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summary judgment.‖ White, 227 F.3d at 1242 (citation omitted).

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As noted below, this subsection does not exist.
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Here, Pivotal brings a facial challenge to subject matter jurisdiction and therefore, the
Court accepts the factual allegations in the complaint as true.
2. Legal Standards Governing Article III Standing
―[T]he irreducible constitutional minimum of [Article III] standing‖ contains three

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elements, namely, ―[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly

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traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a

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favorable judicial decision.‖ Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v.

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Defs. of Wildlife, 504 U.S. 555, 560 (1992)). The dispute here relates to the ―injury in fact‖

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requirement, which the Court has described as the ―‗[f]irst and foremost‘ of standing‘s three
elements.‖ Id. (quoting Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 103 (1998)).

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―To establish injury in fact, a plaintiff must show that he or she suffered ‗an invasion of a legally

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protected interest‘ that is ‗concrete and particularized‘ and ‗actual or imminent, not conjectural or

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hypothetical.‘‖ Id. at 1548 (quoting Lujan, 504 U.S. at 560).

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In Spokeo, the Court emphasized that concreteness and particularization are separate

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requirements. ―For an injury to be ‗particularized,‘ it ‗must affect the plaintiff in a personal and

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individual way.‘‖ Id. at 1548 (quoting Lujan, 504 U.S. at 560 n. 1). Even where this requirement

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is met, however, the injury-in-fact requirement will not be satisfied unless the injury is also

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concrete. Id. ―A ‗concrete‘ injury must be ‗de facto‘; that is, it must actually exist.‖ Id. (citing

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Black‘s Law Dictionary 479 (9th ed. 2009)). An injury may be ―concrete‖ even if it is intangible,

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the Spokeo Court explained, and ―in determining whether an intangible harm constitutes injury in

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fact, both history and the judgment of Congress play important roles.‖ Id. at 1549. With respect

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to history, the Court said, ―it is instructive to consider whether an alleged intangible harm has a

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close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit

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in English or American courts.‖ Id. (citing Vermont Agency of Natural Resources v. United States

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ex rel. Stevens, 529 U.S. 765, 775-777 (2000)). The judgment of Congress is also ―instructive and

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important‖ because ―Congress is well positioned to identify intangible harms that meet minimum

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Article III requirements.‖ Id. Thus, ―Congress has the power to define injuries and articulate

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chains of causation that will give rise to a case or controversy where none existed before.‖ Id.
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(quoting Lujan, 504 U.S. at 580 (Kennedy, J., concurring)).
Nonetheless, ―Congress‘ role in identifying and elevating intangible harms does not mean

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that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a

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person a statutory right and purports to authorize that person to sue to vindicate that right.‖ Id. at

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1549. Thus, while a procedural violation ―can be sufficient in some circumstances to constitute

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injury in fact,‖ for example, where there is a ―risk of real harm,‖ a ―bare procedural violation,

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divorced from any concrete harm‖ does not ―satisfy the injury-in-fact requirement of Article III.‖

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Id. (emphasis added).

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3. Discussion
In the wake of the Supreme Court‘s decision in Spokeo, numerous courts have addressed

United States District Court
Northern District of California

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whether a plaintiff‘s allegations that it received ATDS telephone calls in violation of the TCPA is

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sufficient to establish Article III standing. Juarez v. Citibank, N.A., No. 16-cv-1984 WHO, 2016

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WL 4547914, at *2 (N.D. Cal. Sept. 1, 2016). The vast majority of courts that have addressed this

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question have concluded that the invasion of privacy, annoyance and wasted time associated with

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robocalls is sufficient to demonstrate concrete injury. See id. at *3; Hewlett v. Consol. World

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Travel, Inc., No. CV 2:16-713 WBS AC, 2016 WL 4466536, at *2 (E.D. Cal. Aug. 23, 2016)

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(―Courts have consistently held that allegations of nuisance and invasion of privacy in TCPA

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actions are sufficient to state a concrete injury under Article III‖); LaVigne v. First Cmty.

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Bancshares, Inc., No. 1:15-CV-00934-WJ-LF, 2016 WL 6305992, at *6 (D.N.M. Oct. 19, 2016)

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(―The list [of cases in which Courts have found that TCPA violations gave rise to standing] goes

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on, with each [court] finding that the bare statutory violation of the TCPA constitutes sufficient

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―concrete‖ injury for Article III standing‖); Booth v. Appstack, Inc., No. C13-1533JLR, 2016 WL

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3030256, at *5 (W.D. Wash. May 25, 2016), order clarified, No. C13-1533JLR, 2016 WL

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3620798 (W.D. Wash. June 28, 2016)(―In Spokeo, the ‗injury‘ Plaintiffs incurred was arguably

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merely procedural and thus non-concrete. . . . In contrast, the TCPA and WADAD violations

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alleged here, if proven, required Plaintiffs to waste time answering or otherwise addressing

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widespread robocalls‖); Mey v. Got Warranty, Inc., 193 F. Supp. 3d 641, 644 (N.D.W. Va. 2016)

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(―This Court finds that unwanted phone calls cause concrete harm‖); Cour v. Life360, Inc., Civ.
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No. 16-805 TEH, 2016 WL 4039279, at *2 (N.D. Cal. July 28, 2016) (finding that plaintiff

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―allege[d] a concrete injury sufficient to confer Article III standing‖ because he alleged that ―[the

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defendant] invaded his privacy‖); Rogers v. Capital One Bank (USA), N.A., No. 15-cv-4016, 2016

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WL 3162592, *2 (N.D. Ga. Jun. 03, 2016) (―a violation of the TCPA is a concrete injury. Because

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the Plaintiffs allege that the calls were made to their personal cell phone numbers, they have

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suffered particularized injuries because their cell phone lines were unavailable for legitimate use

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during the unwanted calls.‖).
The undersigned agrees with the reasoning of the cases that have found that a violation of

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the TCPA is sufficient to satisfy the concrete injury requirement where intangible harms are
alleged, as they are here. As the court in Mey explained, ―[o]ne of the ways that Spokeo identifies

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to establish that an intangible injury is concrete is to show that it ‗has a close relationship to a

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harm that has traditionally been regarded as providing a basis for a lawsuit in English or American

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courts.‘‖ 193 F. Supp. 3d at 645 (quoting Spokeo, 136 S. Ct. at 1549). One such intangible harm

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is ―intrusion upon and occupation of the capacity of the plaintiff‘s cell phone.‖ Id. The Mey court

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reasoned that ―[t]he harm recognized by the ancient common law claim of trespass to chattels—

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the intentional dispossession of chattel, or the use of or interference with a chattel that is in the

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possession of another, is a close analog for a TCPA violation.‖ Id. (citing Restatement (Second) of

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Torts § 217 (1965)); see also LaVigne, 2016 WL 6305992, at *6 (agreeing with the reasoning of

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Mey that intrusion upon and occupation of the capacity of the consumer‘s cell phone is a concrete

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injury that results from TCPA violations). Courts have also recognized that the time that is wasted

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as a result of TCPA violations constitutes concrete injury. See Mey, 193 F. Supp. 3d at 648

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(citing Booth v. Appstack, Inc., 2016 WL 3030256, *5 (W.D.Wash. May 25, 2016) in support of

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conclusion that under Spokeo,―wasting the recipient‘s time is a concrete injury that satisfies

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Article III‖). Because Abante alleges facts showing an intrusion on the occupation and capacity of

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its cells phones and waste of time, it has alleged a concrete injury for the purposes of Article III

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standing.3

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Because the Court finds that Abante has demonstrated concrete injury even apart from the
alleged invasion of its privacy rights, the Court need not reach Pivotal‘s argument that Abante
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The Court rejects Pivotal‘s reliance on Romero v. Dep’t Stores Nat’l Bank, No. 15-CV193-CABMDD, 2016 WL 4184099, at *4 (S.D. Cal. Aug. 5, 2016) and Ewing v. SQM US, Inc.,

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No. 3:16-CV-1609-CAB-JLB, 2016 WL 5846494, at *2 (S.D. Cal. Sept. 29, 2016). In Romero,

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the court found that a debtor did not have standing to assert claims against a debt collector who

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had used an ATSD to dial her number without her consent, in violation of the TCPA, because she

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―would have been no better off had Defendants dialed her telephone number manually‖ and

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therefore, any harm she suffered was ―unconnected to the alleged TCPA violations.‖ 2016 WL

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4184099, at *6. The court in Ewing adopted the same reasoning. See 2016 WL 5846494, at *2

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(S.D. Cal. Sept. 29, 2016) (―Plaintiff does not, and cannot, allege that Defendants‘ use of an

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ATDS to dial his number caused him to incur a charge that he would not have incurred had

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Defendants manually dialed his number, which would not have violated the TCPA. Therefore,

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Plaintiff did not suffer an injury in fact traceable to Defendants‘ violation of the TCPA and lacks

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standing to make a claim for the TCPA violation here.‖).

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The undersigned agrees with the analysis in LaVigne, in which the court found that the

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reasoning of the Romero court was not consistent with Spokeo. In particular, the court in LaVigne

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explained:

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Under [Romero‘s] rather draconian analysis, a plaintiff would find it
almost impossible to allege a harm as a result of these robocalls.
Worse, the case ignores the existence of intangible harms that have
been recognized in the legislative history and in the case law. The
Court agrees with Plaintiff that Romero is an outlier in holding that a
violation of the TCPA is a bare procedural violation and that some
additional harm must be shown to establish standing. Romero also
had an inexplicable twist. In its injury-in-fact requirement, the court
required that the injury alleged as a result of a pre-recorded call must
be shown to be different and distinct from any injury that would
have resulted from a manually dialed call. Defendants have taken up
this line of argument as well in their brief, arguing that Plaintiff
lacks standing because she does not offer evidence of injury caused
specifically by the use of an ATDS as opposed to a manually dialed
call. Doc. 48 at 7-8.
Plaintiff sizes up Defendant‘s position by describing it as an
argument which conflates the means through which it (allegedly)
violated the TCPA with the harm resulting from that alleged
violation. . . . The Court agrees.

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cannot assert a violation of privacy in support of standing because it is a corporation.
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LaVigne, 2016 WL 6305992, at *7 (emphasis in original) (internal quotation and citation omitted).
Finally, the Court rejects Pivotal‘s argument that the concrete injury requirement is not

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satisfied because the harm alleged is de minimis. As the court explained in LaVigne, ―Article III

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requirements for an injury-in-fact do not contain a ‗minimum‘ cost or harm threshold. Regardless

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of how small the harm is, it is actual and it is real.‖ 2016 WL 6305992, at *6.

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For these reasons, the Court concludes that Abante has sufficiently alleged concrete injury
for the purposes of demonstrating the existence of Article III standing.
B.

Sufficiency of Allegations
1. Legal Standard Under Rule 12(b)(6)

A complaint may be dismissed for failure to state a claim on which relief can be granted

United States District Court
Northern District of California

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under Rule 12(b)(6) of the Federal Rules of Civil Procedure. ―The purpose of a motion to dismiss

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under Rule 12(b)(6) is to test the legal sufficiency of the complaint.‖ N. Star Int’l v. Ariz. Corp.

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Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a claimant‘s burden at the pleading stage

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is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that ―[a] pleading

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which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim

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showing that the pleader is entitled to relief.‖ Fed. R. Civ. P. 8(a).

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In ruling on a motion to dismiss under Rule 12(b)(6), the court takes ―all allegations of

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material fact as true and construe[s] them in the light most favorable to the non-moving party.‖

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Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal may be based on a

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lack of a cognizable legal theory or on the absence of facts that would support a valid theory.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A pleading must ―contain

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either direct or inferential allegations respecting all the material elements necessary to sustain

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recovery under some viable legal theory.‖ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007)

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(citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). ―A pleading

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that offers ‗labels and conclusions‘ or ‗a formulaic recitation of the elements of a cause of action

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will not do.‘‖ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

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―[C]ourts ‗are not bound to accept as true a legal conclusion couched as a factual allegation.‘‖

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Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). ―Nor does a
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[pleading] suffice if it tenders ‗naked assertion[s]‘ devoid of ‗further factual enhancement.‘‖ Iqbal,

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556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Rather, the claim must be ―‗plausible on its

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face,‘‖ meaning that the claimant must plead sufficient factual allegations to ―allow[] the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.‖ Id. (quoting

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Twombly, 550 U.S. at 570).

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2. Whether Abante Has Alleged Facts Sufficient to Support a Reasonable
Inference that Pivotal “Made” the Calls that Allegedly Violated the TCPA
―The three elements of a TCPA claim are: (1) the defendant called a cellular telephone

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number; (2) using an automatic telephone dialing system; (3) without the recipient‘s prior express
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consent.‖ Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1043 (9th Cir. 2012). ―A
plaintiff need not somehow have inside knowledge of a defendant‘s operations and equipment to

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United States District Court
Northern District of California

survive dismissal under Rule 12(b)(6), rather, he or she merely must proffer factual allegations
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that support a reasonable inference that an ATDS was used.‖ Brown v. Collections Bureau of Am.,
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Ltd, 183 F. Supp. 3d 1004, 1005 (N.D. Cal. 2016). Similarly, at the pleading stage of the case, a
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plaintiff need only allege facts supporting a plausible inference that the defendant is responsible
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for the robocalls that the plaintiff allegedly received on its cellular telephones. See Morris v.
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SolarCity Corp., No. 15-CV-05107-RS, 2016 WL 1359378, at *2 (N.D. Cal. Apr. 6, 2016)
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(―While it certainly is plausible that the calls could have been made by some such third party, it is

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not Morris's burden at this juncture to come forward with allegations or evidence conclusively
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negating the possibility that Solar City neither made the calls itself nor can be held indirectly
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liable. He has alleged facts from which SolarCity‘s direct or indirect liability may plausibly be
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inferred.‖). Abante has alleged detailed facts from which a plausible inference can be drawn that

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Pivotal was responsible for the robocalls made to Abante. That is all that is required at this stage
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of the case.
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3. Whether Abante Fails to State a Claim Because it Alleges Only One Call
Was Made to One of its Cellular Telephone Numbers
Pivotal also contends Abante cannot state a claim because as to one of the cellur telephone

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numbers, only one robocall is alleged to have been received. Apparently, this argument is based

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on 47 U.S.C. § 227(c)(5), which applies to TCPA violations based on calls made to residential
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telephone subscribers, not cellular telephones. As Pivotal implicitly concedes, Abante does not

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assert any such claims here and therefore, that argument fails. See Reply at 11 n. 4.

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C.

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Pivotal asks the Court to strike certain allegations on the basis that they are irrelevant.

Request to Strike

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The Court declines that request. Motions to strike under Rule 12(f) are disfavored. The Court has

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rejected Pivotal‘s argument under § 227(c)(5). Moreover, the Court has not yet addressed the

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question of whether Abante can assert a right to privacy. Therefore, the remedy Pivotal requests is

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unwarranted.

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IV.

CONCLUSION
For the reasons stated above, the Motion is DENIED in its entirety.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: February 24, 2017
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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