Risher v. Adecco Inc. et al

Filing 177


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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 CLARENCE RISHER, Case No. 19-cv-05602-RS Plaintiff, 11 United States District Court Northern District of California v. 12 13 ADECCO INC., et al., Defendants. ORDER GRANTING MOTION TO DISMISS AND OVERRULING OBJECTION TO DISCOVERY RULING 14 15 I. INTRODUCTION 16 17 In this putative class action, plaintiff Clarence Risher alleges defendants Adecco, Inc. and 18 Locutus, Inc. (formerly Mya Systems, Inc.) violated the Telephone Consumer Protection Act, 47 19 U.S.C. § 227 (“TCPA”) by sending text messages to his cell phone, soliciting him for possible 20 employment through Adecco, which operates a job placement service. The operative fourth 21 amended complaint advances three claims for relief. The first claim alleges defendants utilized an 22 automatic telephone dialing system. Risher concedes, however, that in light of the Supreme 23 Court’s decision in Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021), which applied a more 24 restrictive construction of “autodialer,” his first claim for relief is not tenable and may be 25 dismissed. 26 Defendants’ present motion does not challenge the second claim for relief, which asserts 27 defendants sent the text messages notwithstanding the fact that Risher’s telephone number was 28 listed on the National Do Not Call Registry. The only question presented by the motion to dismiss, 1 therefore, is whether text messages fall within the provisions of the TCPA prohibiting unsolicited 2 calls made using an “artificial or prerecorded voice.” 3 Risher also challenges a discovery order entered by the assigned magistrate judge. For the 4 reasons below, the motion to dismiss will be granted, and the objection to the discovery ruling will 5 be overruled. 6 II. BACKGROUND 7 8 United States District Court Northern District of California 9 Risher alleges that in 2008 he submitted information to Adecco’s job placement services seeking employment in either a “data entry” position or as a “desktop support technician.” He was 10 not hired for either of those positions, and had no further contact with Adecco. Nearly 11 years 11 later, however, in 2019, Risher received a text message stating, “Hello Clarence, this is Mya from 12 Adecco. We’re hiring for Refurbisher roles, and I thought you might be interested. Do you have a 13 minute to chat via text? You can also reply ‘no more texts’.” Risher ignored the message. Some 14 hours later he received a further text message asking, “Hi Clarence! It’s Mya again. Are you free 15 to chat for a few minutes?” 16 “Mya,” was not a human being, but a “chatbot”—a computer program utilizing so-called 17 artificial intelligence to recognize a consumer’s responses and lead a conversation with an 18 individual in natural language by mimicking a human. Mya was developed and operated by 19 Locutus, under a contractual relationship with Adecco. 20 21 III. LEGAL STANDARDS 22 A complaint must contain “a short and plain statement of the claim showing that the 23 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While “detailed factual allegations” are not 24 required, a complaint must have sufficient factual allegations to state a claim that is “plausible on 25 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. v. Twombly, 550 U.S. 544, 26 555, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that 27 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 28 CASE NO. 2 19-cv-05602-RS 1 alleged.” Id. (citing Twombly, 550 U.S. at 556). This standard asks for “more than a sheer 2 possibility that a defendant has acted unlawfully.” Id. The determination is a context-specific task 3 requiring the court “to draw on its judicial experience and common sense.” Id. at 679. United States District Court Northern District of California 4 A motion to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil 5 Procedure tests the legal sufficiency of the claims alleged in the complaint. See Conservation 6 Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). Dismissal under Rule 12(b)(6) may be 7 based on either the “lack of a cognizable legal theory” or on “the absence of sufficient facts 8 alleged under a cognizable legal theory.” Id. at 1242 (internal quotation marks and citation 9 omitted). When evaluating such a motion, the court must accept all material allegations in the 10 complaint as true and construe them in the light most favorable to the non-moving party. In re 11 Quality Sys., Inc. Sec. Litig., 865 F.3d 1130, 1140 (9th Cir. 2017). 12 As to Risher’s objection to the discovery order, a district court may modify a magistrate 13 judge’s ruling on a non-dispositive matter only if the order is “clearly erroneous” or “contrary to 14 law.” 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); Bahn v. NME Hospitals, Inc., 929 F.2d 1404, 15 1414 (9th Cir.1991). 16 IV. DISCUSSION 17 18 A. Motion to dismiss 19 In the absence of express consent, section 47 U.S.C. § 227(b)(1)(A)(iii) of the TCPA, and 20 its implementing regulations at 47 CFR § 64.1200(a)(2), prohibit non-emergency calls to cell 21 phones that are made “using any automatic telephone dialing system or an artificial or prerecorded 22 voice.” As noted, Risher agrees that his claim that defendants used an “automatic telephone 23 dialing system” cannot go forward. Risher also acknowledges that the text messages sent to him 24 were not a “voice” in the sense of audible, spoken, words. Risher contends, however, that the 25 messages had a “voice” in a metaphorical sense—indeed that the very intent of the Mya chatbot is 26 to create the impression of an interactive human “voice,” responding conversationally. Risher 27 further argues that the texts, although silent, represent the very type of automated, mass messaging 28 CASE NO. 3 19-cv-05602-RS 1 2 Risher’s position is not frivolous. As one court observed, “the policy of protecting 3 telephone privacy might be advanced by a prohibition on unwanted text messages . . . .” Mina v. 4 Red Robin International, Inc., Case No. 20-cv-00612-RM-KLM (August 18, 2022, D. Col.). As 5 the Mina court went on to hold, however, “that is not what the TCPA currently does.” Rather, “in 6 common parlance, text messages simply are not considered ‘voices,’” and the statute should be 7 understood by the ordinary meaning of its words. Id.; see also, Soliman v. Subway Franchisee 8 Advertising Fund Trust, Ltd., Case No. 3:19-cv-592 (July 18, 2022, D. Conn.) (“To be sure . . . 9 ‘voice’ can also be used metaphorically . . . [b]ut this use is less common and is typically used in 10 poetic or literary settings . . . . In normal English, an advertiser’s text message is not its ‘voice.’”) 11 United States District Court Northern District of California that TCPA was intended to prevent. Soliman further observed that interpreting “voice” metaphorically “is even less plausible 12 given that the Act bans ‘prerecorded voices.’ To ‘record’ is ‘[t]o convert (sound or visual scenes, 13 esp. television pictures) into permanent form.’ Record (def. 9c), Oxford English Dictionary. This 14 definition matches perfectly with the sound sense of ‘voice,’ but not with the metaphorical one.” 15 Risher’s third claim for relief, therefore, fails. Because this dismissal turns on the legal 16 conclusion that the text messages do not fall within the statutory language, it is not a pleading 17 defect that can be cured by amending to state additional or other facts. Risher has not suggested 18 otherwise. Accordingly, no leave to amend will be granted. 19 20 B. Objection to discovery ruling 21 Risher contends that the magistrate judge has erroneously limited his ability to obtain 22 certain documents from defendants—(1) a representative sample of the dialing lists/logs showing 23 text recipients who may be class members, (2) data and records related to any consent defense, and 24 (3) documents showing differences in the text messages. The crux of the dispute appears to be that 25 defendants have produced only information “specific to the text message campaign through which 26 Plaintiff received a text message,” whereas Risher wishes to represent “all individuals who were 27 sent text messages through Mya’s chat bot promoting Adecco’s job placements,” which he insists 28 CASE NO. 4 19-cv-05602-RS 1 2 The magistrate judge, however, has not permanently closed the door on Risher’s ability to 3 obtain further discovery. Rather, in the order Risher challenges, the magistrate judge ruled that 4 defendants had adequately complied with her prior order, Risher’s assertions to the contrary 5 notwithstanding. The judge then expressly ordered the parties to engage in further meet and confer 6 discussions regarding, among other things, Risher’s “request for the total number of text 7 recipients.” 8 9 United States District Court Northern District of California requires discovery into other “campaigns” or candidate lists. The order observed that the parties had failed to “tether their arguments to the Fourth Amended Complaint,” and that those arguments provided “no context that identifies the problem 10 or suggests a solution.” Risher’s objection to the ruling insists the magistrate judge failed to 11 conduct any analysis under Fed. R. Civ. P. 26. The record is clear, however, that the magistrate 12 judge was appropriately focused on the questions of burden and relevance as directed by that rule 13 both at the time of the order Risher challenges, and when issuing the underlying prior order. 14 Indeed, the magistrate judge was careful to avoid deciding issues where the parties had not 15 provided sufficient information and clarity to permit a proper Rule 26 analysis. In directing further 16 meet and confer negotiations, the order noted, “[i]t is not the court’s job to guess at relevance or 17 burden.” 18 19 In short, Risher has failed to show that the magistrate judge’s ruling was clearly erroneous or contrary to law. His objection is overruled. 20 21 22 23 24 25 26 27 28 CASE NO. 5 19-cv-05602-RS V. CONCLUSION 1 2 The motion to dismiss the first and third claims for relief of the fourth amended complaint 3 is granted. Defendants shall file an answer to the remaining claim for relief within 20 days of the 4 date of this order. The objection to the magistrate judge’s discovery order is overruled. 5 6 IT IS SO ORDERED. 7 8 9 10 Dated: November 18, 2022 ______________________________________ RICHARD SEEBORG Chief United States District Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE NO. 6 19-cv-05602-RS

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