Robbins et al v. Coca-Cola Company

Filing 18

ORDER denying Defendant's 7 Motion to Dismiss, or in the alternative, for a More Definite Statement. Court denies Dft's motion in its entirety. Signed by Judge Irma E. Gonzalez on 5/22/2013. (jah)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 BRYAN ROBBINS and MARVIN FEIGES, individually and on behalf of all other similarly situated, 11 12 Plaintiffs, vs. 15 ORDER DENYING DEFENDANT’S MOTION TO DISMISS AND ALTERNATIVE MOTION FOR A MORE DEFINITE STATEMENT [Doc. No. 7] 13 14 CASE NO. 13-CV-132 - IEG (NLS) THE COCA-COLA-COMPANY, Defendant. 16 17 Before the Court is Defendant The Coca-Cola Company (“Coke”)’s motion to 18 dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, 19 for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). 20 [Doc. No. 7.] For the reasons below, Defendant’s motion is DENIED in its entirety. 21 BACKGROUND 22 During 2012, Plaintiffs received numerous short message service (“SMS”) 23 text messages promoting Coke products. [See Doc. No. 1.] This putative class 24 action alleges Defendant sent those text messages in violation of the Telephone 25 Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii), and seeks 26 statutory damages of $500 per negligent violation and up to $1500 per knowing or 27 willful violation. [Id.] With the present motion, Defendant argues that by failing to 28 allege the exact dates, time, SMS codes, cellular phone numbers, contents, and other -1- 13cv132 1 details in regard to the alleged text messages, Plaintiffs fail to state a plausible claim 2 under the TCPA. [See Doc. No. 7.] In the alternative, Defendant moves for a more 3 definite statement that includes these details. [Id.] 4 DISCUSSION 5 6 I. Motion to Dismiss Under Federal Rule of Civil Procedure 8(a)(2), “a complaint must contain 7 sufficient factual matter, accepted as true, to state a claim to relief that is plausible 8 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). “A claim has facial 9 plausibility when the plaintiff pleads factual content that allows the court to draw the 10 reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 11 678. Motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) test 12 the sufficiency of this required showing. New Mexico State Investment Council v. 13 Ernst & Young LLP, 641 F.3d 1089, 1094 (9th Cir. 2011). 14 “Determining whether a complaint states a plausible claim for relief . . . [is] a 15 context-specific task that requires the reviewing court to draw on its judicial 16 experience and common sense.” Id. at 679. But the plausibility standard “does not 17 require [courts] to flyspeck complaints looking for any gap in the facts.” Lacey v. 18 Maricopa County, 693 F.3d 896, 924 (9th Cir. 2012) (en banc) (citing Iqbal, 556 19 U.S. at 677-78). “‘Specific facts are not necessary.’” Moss v. U.S. Secret Service, 20 572 F.3d 962, 968 (9th Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89, 93 21 (2007)); see also Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc., 637 22 F.3d 1047, 1055 (9th Cir. 2011) (plausibility standard does not require “the who, 23 what, when, where, and how of the misconduct alleged.”). Nor is “[t]he standard at 24 this stage . . . that plaintiff’s explanation must be true or even probable.” Starr v. 25 Baca, 652 F.3d 1202, 1216-17 (9th Cir. 2011). “The factual allegations of the 26 complaint need only ‘plausibly suggest an entitlement to relief.’” Id. at 1217 27 (quoting Iqbal, 556 U.S. at 681). If “the complaint’s factual allegations, together 28 with all reasonable inferences, state a plausible claim for relief,” dismissal must be -2- 13cv132 1 2 3 4 5 6 7 8 9 denied. Cafasso, 637 F.3d at 1054 (citing Iqbal, 556 U.S. at 677). In this case, Plaintiffs base their claims on the TCPA, which in pertinent part provides: It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States— (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system [(“ATDS”)] or an artificial or prerecorded voice— ... (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call. 10 47 U.S.C. § 227(b)(1)(A)(iii). Inter alia, this statutory language “make[s] it 11 unlawful to use an automatic telephone dialing system [(“ATDS”)]. . ., without the 12 prior express consent of the called party, to call any . . . cellular telephone.” Mims v. 13 Arrow Financial Services, LLC, _ U.S. _, 132 S.Ct. 740, 745 (2012); see also 14 Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009). “Whether 15 Plaintiffs gave the required prior express consent is an affirmative defense to be 16 raised and proved by a TCPA defendant, however, and is not an element of 17 Plaintiffs’ TCPA claim.” Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 18 2129364, at *3 (S.D. Cal. June 11, 2012). Thus, to plead a TCPA claim, Plaintiffs 19 need only allege two elements: (1) a call to a cellular telephone; (2) via an ATDS. 20 See id. (“The TCPA prohibits persons from making calls using an automatic 21 telephone dialing system.”) (internal quotation omitted). 22 A. A Call to a Cellular Phone 23 A “text message is a ‘call’ within the TCPA.” Satterfield, 569 F.3d at 954. 24 Plaintiffs allege numerous text messages to their cellular phones. [Doc. No. 1 at 12- 25 17.] Defendant contends these allegations fail to allege a call under the TCPA 26 because they fail to specify the precise time, content, and context of the subject text 27 messages. [See Doc. No. 7 at 3-5.] But the language of the TCPA makes no 28 reference to the time, content, sequence, or volume of calls or messages as a -3- 13cv132 1 prerequisite to liability; rather, the wording of the statute is expansive and content 2 neutral. See Satterfield, 569 F.3d at 955 (finding a single text message actionable); 3 see also Melingonis v. Network Communs. Int’l Corp., 2010 WL 4918979, at *1 4 (S.D. Cal. Nov. 29, 2010) (“We note that [the TCPA] applies regardless of the 5 content of the call.”) (internal quotation omitted); Robinson v. Midland Funding, 6 LLC, 2011 WL 1434919, at *3 (S.D. Cal. April 13, 2011) (“the federal notice 7 pleading standards do not require a plaintiff to allege details . . . about the [call’s] 8 time and context.”). To allege a call under the TCPA, Plaintiffs need only allege text 9 messages to their cellular phones by Defendant. See Satterfield, 569 F.3d at 954. 10 Plaintiffs here have done so and thus sufficiently allege calls under the TCPA. 11 B. Via an ATDS 12 “An ATDS is defined as ‘equipment which has the capacity - (A) to store or 13 produce telephone numbers to be called, using a random or sequential number 14 generator; and (B) to dial such numbers.’” Gragg v. Orange Cab Co., Inc., 2013 15 WL 195466, at *2 (W.D. Wash. Jan. 17, 2013) (quoting 47 U.S.C. § 227(a)(1)). 16 “Plaintiffs alleging the use of a particular type of equipment under the TCPA are 17 generally required to rely on indirect allegations, such as the content of the message, 18 the context in which it was received, and the existence of similar messages, to raise 19 an inference that an automated dialer was utilized. Prior to the initiation of 20 discovery, courts cannot expect more.” Id. at *2 n.3; see also Hickey v. Voxernet 21 LLC, 887 F.Supp.2d 1125, 1130 (W.D. Wash. Aug. 13, 2012) (“allegation[s] 22 regarding the generic content and automatic generation of the message [are] 23 sufficient to infer the use of an ATDS.”). “The issue is whether the allegations of 24 the complaint, taken as a whole and including the nature of the communication, give 25 rise to a plausible belief that the message was sent using an ATDS.” Gragg, 2013 26 WL 195466, at *2 n.3 27 28 Here, Plaintiffs allege numerous text messages received without prior consent, sent nationwide and en masse via SMS, promoting Coke Zero and other Coke -4- 13cv132 1 products. [See Doc. No. 1 at ¶¶12-17.] These allegations, though indirect, suffice to 2 plead the use of an ATDS in connection with Plaintiffs’ TCPA claims. See, e.g., In 3 re Jiffy Lube Intern., Inc., Text Spam Litig., 847 F.Supp.2d 1253, 1260 (S.D. Cal. 4 2012) (“Plaintiffs have stated that they received a text message from an SMS short 5 code and that the message was sent by a machine with the capacity to store or 6 produce random telephone numbers. While additional factual details about the 7 machines might be helpful, further facts are not required to move beyond the 8 pleading stage.”). 9 Because Plaintiffs allege sufficient factual content to support each element of 10 the TCPA claims alleged, Defendant’s motion to dismiss for failure to state claim is 11 DENIED. 12 II. 13 Motion for a More Definite Statement Defendant also moves in the alternative for a more definite statement. [Doc. 14 No. 7 at 7-8.] Federal Rule of Civil Procedure 12(e) provides for a more definite 15 statement only where a pleading “is so vague or ambiguous that a party cannot 16 reasonably be required to frame a responsive pleading.” Fed. R. Civ. P. 12(e). Given 17 the liberal pleading standards applicable under the federal rules, see Fed. R. Civ. P. 18 8, “Rule 12(e) motions are viewed with disfavor and are rarely granted,” Valasquez 19 v. HSBC Finance Corp., 2009 WL 112929, at *1 (N.D. Cal. Jan. 16, 2009). Even 20 when properly asserted, “[a] motion for more definite statement attacks 21 intelligibility, not simply lack of detail,” Gregory Village Partners v. Chevron, 22 USA., 805 F.Supp.2d 888 (N.D. Cal. 2011), and will be granted “only if the 23 [challenged pleading] is so indefinite that the defendant cannot ascertain the nature 24 of the claim being asserted, meaning the [pleading] is so vague that the defendant 25 cannot begin to frame a response.” Craigslist, Inc. v. Autoposterpro, Inc., 2009 WL 26 890896, at *4 (N.D. Cal. March 31, 2009). Reciprocally, where a pleading “is 27 specific enough to apprise the responding party of the substance of the claim or 28 defense being asserted or where the detail sought is otherwise obtainable through -5- 13cv132 1 discovery, a motion for a more definite statement should be denied.” Fernandez v. 2 Centric, 2013 WL 310373, at *2 (D. Nev. Jan. 24, 2013) (internal quotation 3 omitted). 4 Here, Defendant does not challenge the intelligibility of the complaint, but 5 rather requests further detail plainly obtainable through discovery, such as the time 6 and content of the alleged text messages. [See Doc. No. 7 at 7-8.] Moreover, 7 Defendant’s present, cogent motion to dismiss belies any suggestion that the 8 complaint is too vague for Defendant to frame a response. [Id.] Accordingly, 9 Defendant’s motion for a more definite statement is DENIED. CONCLUSION 10 11 12 13 14 15 For the reasons above, the Court hereby DENIES Defendant’s motion in its entirety. IT IS SO ORDERED. DATED: May 22, 2013 ______________________________ IRMA E. GONZALEZ United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- 13cv132

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