San Pedro-Salcedo v. The Haagen-Dazs Shoppe Company, Inc., et al

Filing 30

ORDER denying 14 Motion to Dismiss or in the alternative to stay. Signed by Judge Edward J. Davila on 10/11/2017. (ejdlc3S, COURT STAFF) (Filed on 10/11/2017)

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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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MELANIE G. SAN PEDRO-SALCEDO,

Case No. 5:17-cv-03504-EJD

Plaintiff,
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ORDER DENYING DEFENDANTS'
MOTION TO DISMISS OR IN THE
ALTERNATIVE TO STAY ACTION

v.
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United States District Court
Northern District of California

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THE HAAGEN-DAZS SHOPPE
COMPANY, INC., et al.,

Re: Dkt. No. 14

Defendants.

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I. INTRODUCTION
This is a purported class action suit for violation of the Telephone Consumer Protection

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Act, 47 U.S.C. §227 (“TCPA”) predicated upon Plaintiff Melanie G. San Pedro Salcedo’s receipt

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of a text message for which she did not give prior written consent which stated: “Thank you for

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joining Häagen-Dazs Rewards! Download our app here:.” See Complaint, ¶14. Defendants

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Häagen-Dazs Shoppe Company, Inc., Nestlé Dreyer’s Ice Cream Company, and Nestlé USA, Inc.

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(collectively “Defendants”) move to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(6),

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Fed.R.Civ.P., or in the alternative, to stay the action pending the decision of the D.C. Circuit Court

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of Appeals in ACA International v. FCC, et al., No. 15-1211. For the reasons set forth below,

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Defendants’ motion to dismiss or in the alternative to stay action is DENIED.

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II. BACKGROUND
In April of 2017, Plaintiff visited a Häagen-Dazs store in San Jose, California. See
CASE NO.: 5:17-CV-03504-EJD
ORDER DENYING DEFENDANTS' MOTION TO DISMISS OR IN THE ALTERNATIVE
TO STAY ACTION

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Complaint, ¶13. The Häagen-Dazs cashier orally asked Plaintiff if she would like to enroll in a

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rewards program for discounts on future purchases. Id. The cashier asked for Plaintiff’s

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telephone number, which Plaintiff provided orally. Id. The same day, Plaintiff received a text

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message from Defendants on her cellular telephone stating: “Thank you for joining Häagen-Dazs

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Rewards! Download our app here:.” Id. at ¶14. The “app” can be used to locate Häagen-Dazs

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stores, to place orders online, and to get offers and coupons. Id. at ¶15. Plaintiff alleges on

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information and belief that her cellular-telephone number was entered into a database and that

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Defendants used equipment capable of storing and/or producing telephone numbers and capable of

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dialing such numbers to send the text to her. Id. at ¶20.
Plaintiff alleges that the text constitutes a telemarketing or advertising message sent

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United States District Court
Northern District of California

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without prior express written consent, and therefore it violates the TCPA. Plaintiff seeks to

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represent a class comprised of “[a]ll persons throughout the United States who, since October 16,

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2013, received at least one text message from Defendants on their cellular telephones.” Plaintiff

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seeks $500 in statutory damages for each text message the class received, treble damages for

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Defendants’ alleged willful and knowing violation of the TCPA, injunctive relief, and interest,

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attorney’s fees and costs of suit, to the extent allowable by law.

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III. STANDARDS

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A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of claims

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alleged in the complaint. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.

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1995). When deciding whether to grant a motion to dismiss, the court must generally accept as

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true all “well-pleaded factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). The court

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must also construe the alleged facts in the light most favorable to the plaintiff. See Retail Prop.

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Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014)

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(providing the court must “draw all reasonable inferences in favor of the nonmoving party” for

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a Rule 12(b)(6) motion). Dismissal “is proper only where there is no cognizable legal theory or an

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CASE NO.: 5:17-CV-03504-EJD
ORDER DENYING DEFENDANTS' MOTION TO DISMISS OR IN THE ALTERNATIVE
TO STAY ACTION

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absence of sufficient facts alleged to support a cognizable legal theory.” Navarro v. Block, 250

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F.3d 729, 732 (9th Cir. 2001).
IV. DISCUSSION

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Section 227(b)(1)(A)(iii) of the TCPA makes it unlawful to “make any call (other than a

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call made for emergency purposes or made with the prior express consent of the called party)

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using any automatic telephone dialing system or an artificial or prerecorded voice . . . (iii) to any

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telephone number assigned to a . . . cellular telephone . . . .” 47 U.S.C. §227(b)(1)(A)(iii). The

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level of consent required to remove a call from the scope of Section 227(b)(1)(A)(iii) depends on

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the character of the call. Daniel v. Five Stars Loyalty, Inc., No. 15-cv-3546-WHO, 2015 WL
7454260, at *3 (N.D. Cal. Nov. 24, 2015). A text or call that “includes or introduces an

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Northern District of California

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advertisement or constitutes telemarketing” may be sent with the recipients “prior express written

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consent.” 47 C.F.R. §64.1200(a)(2) (2013). In contrast, a text or call that does not include or

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introduce an advertisement or constitute telemarketing may be sent with “prior express consent.”

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47 C.F.R. §64.1200(a)(1) (2013).

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The central issue in this case is whether the text “includes or introduces an advertisement

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or constitutes telemarketing.” If the text “includes or introduces an advertisement or constitutes

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telemarketing,” and was sent using any automatic telephone dialing system (“ATDS”), Plaintiff

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has adequately alleged a violation of the TCPA.

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A. Allegations re Advertising or Telemarketing

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The TCPA regulations define “advertisement” as “any material advertising the commercial

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availability or quality of any product, goods, or services” and “telemarketing” as “the initiation of

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a . . . message for the purpose of encouraging the purchase or rental of, or investment in, property,

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goods or services . . . .” 47 C.F.R. §64.1200(f)(1) and (12). Defendants contend that the text is

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not advertising or telemarketing because it does not encourage Plaintiff to purchase property,

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goods or services. Plaintiff argues that the text advertises the commercial availability of a service,

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CASE NO.: 5:17-CV-03504-EJD
ORDER DENYING DEFENDANTS' MOTION TO DISMISS OR IN THE ALTERNATIVE
TO STAY ACTION

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namely Defendants’ app, and therefore the text constitutes advertising within the meaning of the

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TCPA. Plaintiff reasons that the app itself is one of Defendants’ products, and that by explicitly

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including a link to download that app, they are advertising the app’s commercial availability.

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In Five Stars, the plaintiff received a similar text after speaking to a cashier about

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defendant’s rewards program and providing his telephone number: “Welcome to Five Stars, the

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rewards program of Flame Broiler. Reply with your email to finish registering and get free pts!

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Txt STOP to unsubscribe.” Id. at *1. The Five Stars court held that the text did not include or

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introduce an advertisement and did not constitute telemarketing. Id. at *5. Similarly, in Aderhold

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v. Car2go N.S., LLC, No. 13-cv-00489, 2014 WL 794802, at *1 (W.D. Wash. Feb. 27, 2014), the
plaintiff received a text from Car2go, a car-sharing service stating: “Please enter your car2go

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activation code 145858 into the emailed link. We look forward to welcoming you to car2go.”

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The Car2go court found that the text was sent for the limited purpose of permitting plaintiff to

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complete his registration, and therefore did not violate the TCPA.

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Unlike Five Stars, the text at issue does not instruct Plaintiff to take any action to “finish

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registering.” Instead, the text reads, “[t]hank you for joining Häagen-Dazs Rewards!,” which

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suggests that Plaintiff had already joined Häagen-Dazs Rewards before Defendants sent the text.

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The text in Car2go instructed the recipient to use the link to complete registration, and is therefore

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also distinguishable from the text Plaintiff received from Defendants. If the registration for

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Häagen-Dazs Rewards was completed before the receipt of the text and without the need to

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download Defendants’ app, then Defendants’ message to “Download our app here,” arguably

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constitutes an advertisement for the commercial availability of Defendants’ app. Construing the

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alleged facts in the light most favorable to Plaintiff, the Court finds Plaintiff’s allegations

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sufficient at the pleading stage.

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B. Allegations re ATDS

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Plaintiff alleges on information and belief that her cellular-telephone number was entered
CASE NO.: 5:17-CV-03504-EJD
ORDER DENYING DEFENDANTS' MOTION TO DISMISS OR IN THE ALTERNATIVE
TO STAY ACTION

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into a database and that Defendants used equipment capable of storing and/or producing telephone

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numbers and capable of dialing such numbers to send the text to her. Id. at ¶20. These allegations

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are sufficient at the pleading stage given the content of the message and the context in which it

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was received. But c.f. Priester v. eDegreeAdvisor, LLC, No. 15-cv-04218, 2017 WL 4237008

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(N.D. Cal. Sept. 25, 2017) (generically alleging use of ATDS by defendant in a manner that

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parrots statutory language insufficient to support TCPA claim because telephone calls at issue

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could have just as easily been placed manually).

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C. Motion to Stay

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“A District Court has ‘broad discretion to stay proceedings as an incident to its power to
control its own docket.’” Brickman v. Facebook, Inc., No. 16-cv-00751, 2017 WL 1508719, at *4

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Northern District of California

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(N.D. Cal. Apr. 27, 2017) (citing Clinton v. Jones, 520 U.S. 681, 706-07 (1997)). When

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considering whether to grant a stay of proceedings, courts must consider three factors: (1) “the

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orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and

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questions of law which could be expected to result from a stay”; (2) the hardship or inequity which

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a party may suffer in being required to go forward; and (3) the possible damage which may result

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from granting a stay. Id.

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Defendants seek a stay pending the D.C. Circuit’s ruling in ACA International where the

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definition of an ATDS is at issue. Defendants urge this court to follow the lead of numerous

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district courts, including courts in the Northern District of California, that have entered stays

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pending disposition of ACA International. This Court, however, disagrees that a stay is justified.

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Without knowing what type of technology Defendants used to send Plaintiff the text, it is unclear

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whether the decision in ACA International will be dispositive of this case or even narrow the

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issues. Furthermore, regardless of the outcome of ACA International, it is likely that Defendants

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will be required to produce discovery to settle any factual disputes regarding their technology. See

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Glick v. Performant Financial Corp., No. 16-cv-5461, 2017 WL 786293, at *2 (N.D. Cal. Feb. 27,

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CASE NO.: 5:17-CV-03504-EJD
ORDER DENYING DEFENDANTS' MOTION TO DISMISS OR IN THE ALTERNATIVE
TO STAY ACTION

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2017) (citing Lathrop v. Uber Techs., Inc., No. 14-cv-5678, 2016 WL 97511, at *4 (N.D. Cal. Jan.

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8, 2016) (“[A]lthough the decision in ACA International may vacate portions of the 2015 FCC

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Order, discovery in this case will be required regardless of the outcome in that one.”). In addition,

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although a decision from the D.C. Circuit may be issued shortly, there may be further appeals. It

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is impossible to forecast when a final, binding decision in ACA International will be rendered. In

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the meantime, delaying this case would prejudice Plaintiff. The passage of time will make it more

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difficult to reach class members and will increase the likelihood that evidence will dissipate. In

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contrast, Defendants have not established that they will suffer hardship or inequity if required to

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proceed with this litigation. “[B]eing required to defend a suit, without more, does not constitute a

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‘clear case of hardship or inequity’. . . .” Glick, at *2 (quoting Lockyer v. Mirant Corp., 398 F.3d

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1098, 1112 (9th Cir. 2005)).
V. CONCLUSION

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For the reasons set forth above, Defendants’ motion to dismiss or in the alternative to stay
the action is DENIED.

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IT IS SO ORDERED.
Dated: October 11, 2017
______________________________________
EDWARD J. DAVILA
United States District Judge

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CASE NO.: 5:17-CV-03504-EJD
ORDER DENYING DEFENDANTS' MOTION TO DISMISS OR IN THE ALTERNATIVE
TO STAY ACTION

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