Brinker v. Normandin's

Filing 155

ORDER GRANTING 145 MOTION FOR RECONSIDERATION. Signed by Judge Edward J. Davila on 4/21/2017. The Clerk shall reopen this file. The hearing scheduled for April 27, 2017, is VACATED. (ejdlc2S, COURT STAFF) (Filed on 4/21/2017)

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ALAN BRINKER, et al.,

Case No. 5:14-cv-03007-EJD

Plaintiffs,
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ORDER GRANTING MOTION FOR
RECONSIDERATION

v.
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NORMANDIN'S, et al.,

Re: Dkt. No. 145

Defendants.
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Plaintiffs move for reconsideration of this Court’s order granting Defendants’ motion to

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dismiss for lack of subject-matter jurisdiction. Plaintiffs’ motion will be GRANTED.
I.

BACKGROUND

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Plaintiffs allege that Defendants Normandin’s and OneCommand, Inc. violated the

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Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A), by placing automated

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Case No.: 5:14-cv-03007-EJD
ORDER GRANTING MOTION FOR RECONSIDERATION

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calls to Plaintiffs’ phones.1 Second Am. Class Action Compl. (“SAC”) ¶¶ 69–76, Dkt. No. 127.

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Brinker received one call, which went to voicemail; he listened to the message, called to confirm

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that Normandin’s left the message, and hung up. Id. ¶¶ 27–28; Dkt. No 130 at 3. Rugg and

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Sanders each received “approximately five or six” calls; it is unclear whether they answered the

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calls or listened to voicemail messages. Id. ¶¶ 38–40, 51–53; Dkt. No. 132 at 2.
OneCommand moved to dismiss Plaintiffs’ complaint for lack of subject-matter

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jurisdiction Fed. R. Civ. P. 12(b)(1). Dkt. No. 130. This Court granted OneCommand’s motion on

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the basis that Plaintiffs lacked standing because they failed to allege a concrete injury. Dkt. No.

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141. Now, Plaintiffs argue that a recent Ninth Circuit decision requires a different result.

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II.

LEGAL STANDARD

United States District Court
Northern District of California

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A.

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Fed. R. Civ. P. 59(e) is the “proper vehicle” for filing a motion for reconsideration of a

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motion to dismiss without leave to amend. Mir v. Fosburg, 646 F.2d 342, 344 (9th Cir. 1980).

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“Under Rule 59(e), a motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence, committed

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clear error, or if there is an intervening change in the controlling law.” Orange Street Partners v.

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Arnold, 179 F.3d 656, 665 (9th Cir. 1999).

Motion for Reconsideration

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B.

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Dismissal under Fed. R. Civ. P. 12(b)(1) is appropriate if the complaint fails to allege facts

Rule 12(b)(1)

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sufficient to establish subject-matter jurisdiction. Savage v. Glendale Union High Sch., 343 F.3d

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1036, 1039 n.2 (9th Cir. 2003). The Court “is not restricted to the face of the pleadings, but may

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review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the

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existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). The

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nonmoving party bears the burden of establishing jurisdiction. Chandler v. State Farm Mut. Auto.

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Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).

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For a more detailed summary of the factual background, see this Court’s order granting
OneCommand’s motion to dismiss, Dkt. No. 141 at 1–3.
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Case No.: 5:14-cv-03007-EJD
ORDER GRANTING MOTION FOR RECONSIDERATION

C.

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Article III Standing

To have standing, a 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). The plaintiff

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bears the burden of proving these elements. Id.
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The plaintiff’s injury must be “particularized” and “concrete.” Id. at 1548. To be
particularized, it “must affect the plaintiff in a personal and individual way.” Id. To be concrete, it

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must be real, not abstract. Id. at 1548–49. A concrete injury can be tangible or intangible. Id. A
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statutory violation alone is not enough; the plaintiff must also allege a concrete harm. Id. at 1549
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(a plaintiff cannot “allege a bare procedural violation, divorced from any concrete harm, and
satisfy the injury-in-fact requirements of Article III”).

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United States District Court
Northern District of California

If the plaintiff lacks Article III standing, then the case must be dismissed for lack of
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subject-matter jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101–02 (1998).

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III.

DISCUSSION
A.

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TCPA Standing after Van Patten
After OneCommand’s motion to dismiss was fully briefed, the Ninth Circuit issued an

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opinion in Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017). According to
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Plaintiffs, Van Patten requires a finding that Plaintiffs’ injuries are sufficiently concrete to confer
standing. Pls.’ Mot. for Reconsideration (“Mot.”), Dkt. No. 145; see also Orange Street Partners,
179 F.3d at 665 (holding that reconsideration is appropriate when there has been “an intervening
change in the controlling law”).

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The plaintiff in Van Patten received two automated text messages2 from a gym where he

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had been a member. 847 F.3d at 1041. He claimed that the messages violated the TCPA. Id. The
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defendants responded with the same argument that OneCommand made here in its motion to
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dismiss: “Van Patten did not establish a concrete injury-in-fact necessary to pursue his TCPA

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Text messages are “calls” under the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946,
954 (9th Cir. 2009).
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Case No.: 5:14-cv-03007-EJD
ORDER GRANTING MOTION FOR RECONSIDERATION

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claim” in light of Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). 847 F.3d at 1042.
The Ninth Circuit acknowledged that “Article III standing requires a concrete injury even

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in the context of a statutory violation” and that a plaintiff cannot “allege a bare procedural

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violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article

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III.” Id. (quoting Spokeo, 136 S. Ct. at 1543, 1549).
Nonetheless, it decided that “a violation”—any violation—“of the TCPA is a concrete, de

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facto injury.” Id. at 1043. “Congress identified unsolicited contact as a concrete harm, and gave

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consumers a means to redress this harm. We recognize that Congress has some permissible role in

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elevating concrete, de facto injuries previously inadequate in law ‘to the status of legally
cognizable injuries.’ ” Id. (quoting Spokeo, 136 S. Ct. at 1549). “A plaintiff alleging a violation

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United States District Court
Northern District of California

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under the TCPA ‘need not allege any additional harm beyond the one Congress has identified.’ ”

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Id. (quoting Spokeo, 136 S. Ct. at 1549) (emphasis in original).
Under Van Patten, the Plaintiffs in this case have standing. They claim that Normandin’s

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and OneCommand place unsolicited, automated calls to their phones in violation of the TCPA.

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After Van Patten, these allegations are sufficient to show that the Plaintiffs suffered a concrete

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injury.

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B.

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OneCommand argues that Plaintiffs “lack standing to represent a class of individuals who

Class Certification

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received eight other types of calls that none of [the Plaintiffs] received.” Def.’s Opp’n to Pl.’s

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Mot. for Reconsideration 9, Dkt. No. 148. OneCommand raises the same point in its opposition to

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Plaintiffs’ motion for class certification, where it argues that Plaintiffs cannot meet the typicality

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requirement. Dkt. No. 110 at 16–17.

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The Court will address OneCommand’s argument in its forthcoming order on Plaintiffs’

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motion for class certification. See Melendres v. Arpaio, 784 F.3d 1254, 1262 (9th Cir. 2015)

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(“ ‘[A]ny issues regarding the relationship between the class representative and the passive class

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members—such as dissimilarity in injuries suffered—are relevant only to class certification, not to

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standing.’ . . . . Stated differently, ‘[r]epresentative parties who have a direct and substantial

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Case No.: 5:14-cv-03007-EJD
ORDER GRANTING MOTION FOR RECONSIDERATION

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interest have standing; the question whether they may be allowed to present claims on behalf of

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others who have similar, but not identical, interests depends not on standing, but on an assessment

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of typicality and adequacy of representation.’ ”) (citations omitted).

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IV.

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CONCLUSION
Plaintiffs’ motion for reconsideration is GRANTED. The Clerk shall reopen this file. The

hearing scheduled for April 27, 2017, is VACATED.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: April 21, 2017
______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:14-cv-03007-EJD
ORDER GRANTING MOTION FOR RECONSIDERATION