Kalmbach v. National Rifle Association of America et al

Filing 33

ORDER granting in part and denying in part defendants' #28 Motion to Dismiss; plaintiff granted leave to amend their complaint within 30 days signed by Judge Ricardo S Martinez.(RS)

Download PDF
  1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 Case No. C17-399-RSM 10 11 12 KATHARYN KALMBACH, individually and on behalf of all others similarly situated, Plaintiff, 13 14 15 16 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS v. NATIONAL RIFLE ASSOCIATION OF AMERICA, a New York corporation, and INFOCISION, INC., a Delaware corporation, 17 18 19 20 21 Defendants. I. INTRODUCTION This matter comes before the Court on Defendants InfoCision, Inc. and National Rifle 22 Association of America (the “NRA”)’s Motion to Dismiss, brought under Rule 12(b)(6). Dkt. 23 #28. Defendants argue Plaintiff fails to state a claim that Defendants: violated the Washington 24 25 26 Automatic Dialing and Announcing Device Statute (“WADAD”), R.C.W. § 80.36.400; violated the Washington Do Not Call Statute (“WDNC”), R.C.W. § 80.36.390; violated the Washington 27 Consumer Protection Act (“WCPA”), R.C.W. § 19.86, et seq.; or invaded Kalmbach’s (and the 28 class members’) privacy under Washington common law. In Response, Plaintiffs argue that the ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS - 1   1 Complaint adequately satisfies the Rule 12(b)(6) standard. The Court has determined oral 2 argument is unnecessary. For the reasons stated below, the Court GRANTS IN PART AND 3 DENIES IN PART Defendants’ Motion. 4 II. 5 Defendant NRA is an organization focused on firearms, including education, training, 6 7 BACKGROUND1 and advocacy. Pl.’s Compl., Dkt. #1-1 at ¶ 1. Defendant InfoCision is a teleservices company 8 that places unsolicited telemarketing calls on the NRA’s behalf and for the NRA’s benefit. Id. 9 at ¶¶ 2, 28. 10 11 12 Plaintiff Kalmbach is a Washington citizen and resident of King County. Id. at ¶ 11. She is not and has never been a member of the NRA. Id. at ¶ 47. On November 9, 2007, Ms. 13 Kalmbach registered her landline telephone with the National Do Not Call Registry. Id. at ¶ 41. 14 Beginning in July 2016, Plaintiff Kalmbach began to receive daily, unsolicited and prerecorded 15 calls on her landline telephone placed by Defendant InfoCision on behalf of Defendant NRA 16 using phone number 425-405-6193. Id. at ¶ 42. The pre-recorded message would state that the 17 18 call was intended for a woman that is not known by Plaintiff Kalmbach. Id. The calls to Ms. 19 Kalmbach were explicitly made to solicit the purchase of an NRA membership. Id. at ¶ 46. 20 When the calls continued to be received each day, Plaintiff Kalmbach grew frustrated and 21 eventually pressed the button indicated by the pre-recorded message to proceed with the call as 22 23 24 if she was the intended potential customer. Id. at ¶ 43. This then brought on another prerecorded message encouraging membership sales and general support for Defendant NRA. 25 Id. Plaintiff Kalmbach was prompted to press a button to get a membership, or another button 26 to get additional information. She pressed both, but she was unable to get a live agent on the 27 28 1 The following background facts are taken from Plaintiff’s Complaint, Dkt. #1, and accepted as true for purposes of ruling on Defendants’ Rule 12(b)(6) Motion to Dismiss. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS - 2   1 telephone in order to ask them to stop calling. Id. at ¶ 43. After this unsuccessful attempt, Ms. 2 Kalmbach called the NRA to indicate her desire that the calls stop. Id. at ¶ 44. Despite all of 3 this, Kalmbach continued to receive unsolicited pre-recorded calls placed by Defendant 4 InfoCision on behalf of the NRA for three weeks. Id. at ¶ 45. 5 6 7 The NRA hired InfoCision to make the calls. Id. at ¶ 25. These calls were made on behalf of the NRA membership organization rather than its charitable companion, the NRA 8 Foundation. Id. at ¶¶ 24, 31. In addition to soliciting paid memberships, the NRA markets 9 goods and services to members and potential members, including a magazine subscription, 10 11 12 various insurance policies, and a “FREE” duffel bag. Id. at ¶¶ 32-33. Further, the NRA disclaims on its membership page that “[c]ontributions, gifts or membership dues made or paid 13 to the National Rifle Association of America . . . are not deductible as charitable contributions 14 for Federal income tax purposes.” Id. at ¶¶ 29, 37. 15 16 On February 10, 2017, Ms. Kalmbach filed a putative class action complaint in state court, and Defendants removed to this Court on March 13, 2017. Dkt. #1. The Complaint 17 18 contains causes of action brought under the Washington Automatic Dialing and Announcing 19 Device Statute (“WADAD”), R.C.W. § 80.36.400; the Washington Do Not Call Statute 20 (“WDNC”), R.C.W. § 80.36.390; the Washington Consumer Protection Act (“WCPA”), R.C.W. 21 § 19.86, et seq.; and for invasion of privacy under Washington law. Dkt. #1-1 at 13-16. 22 III. 23 24 DISCUSSION A. Legal Standard 25 In making a 12(b)(6) assessment, the court accepts all facts alleged in the complaint as 26 true, and makes all inferences in the light most favorable to the non-moving party. Baker v. 27 Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations omitted). 28 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS - 3   1 However, the court is not required to accept as true a “legal conclusion couched as a factual 2 allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 3 550 U.S. 544, 555 (2007)). The complaint “must contain sufficient factual matter, accepted as 4 true, to state a claim to relief that is plausible on its face.” Id. at 678. This requirement is met 5 6 7 when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The complaint need not include 8 detailed allegations, but it must have “more than labels and conclusions, and a formulaic 9 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Absent 10 11 12 13 facial plausibility, a plaintiff’s claims must be dismissed. Id. at 570. B. WADAD and CPA Claims 1. Whether WADAD Claim provides a Private Right of Action 14 Defendants’ Motion begins by arguing that the WADAD does not “create a private 15 cause of action; it provides only a per se violation of the Consumer Protection Act.” Dkt. #28 at 16 4 (citing Agne v. Rain City Pizza, L.L.C., No. C10-1139-JCC, 2011 WL 11798573, at *4 (W.D. 17 18 Wash. June 17, 2011)). In her Response, Plaintiff states that it is undisputed that the WADAD 19 “makes a violation of [the WADAD] a violation of the WCPA,” but argues that previous cases 20 in this District have not automatically dismissed separate claims based on the underlying statute 21 whenever a WCPA claim is derivative. Dkt. #29 at 10 (citing Taylor v. Universal Auto Grp. I, 22 23 24 Inc., No. 3:13-CV-05245-KLS, 2014 WL 6654270, at *6 (W.D. Wash. Nov. 24, 2014); Hartman v. United Bank Card Inc., No. C11-1753JLR, 2012 WL 4758052 (W.D. Wash. Oct. 4, 25 2012); Gragg v. Orange Cab Co., No. C12-0576RSL, 2013 WL 195466 (W.D. Wash. Jan. 17, 26 2013) (rejecting motion for summary judgment on claims under the WCPA that were wholly 27 derivative of the plaintiff's claims under Washington’s Commercial Electronic Mail Act 28 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS - 4   1 (“CEMA”) RCW 19.190.010 et seq.)). Although Plaintiff admits she cannot have a double- 2 recovery, she argues that there is no basis for striking one set of allegations or the other, as the 3 Washington General Assembly intended for both claims to provide avenues for relief. On 4 Reply, Defendants argue that Plaintiff “does not attempt to refute or distinguish the Court’s 5 6 7 holding in Agne, or address the actual text of the statute.” Dkt. #30 at 3. Defendants argue that Plaintiff’s cited cases do not address whether WADAD creates a private right of action, and 8 that, absent contrary authority, the Court should “adhere to Agne’s well-reasoned conclusion.” 9 Id. at 3-4. 10 11 12 The Court has reviewed Agne and finds that it does not provide the well-reasoned conclusion Defendants assert. The court in Agne dismissed a WADAD claim for two reasons: 13 a) because there was “no specific allegation in the complaint that Defendants used an automatic 14 dialing and announcing device to play a recorded message once a connection was made to 15 Plaintiff's telephone” (as required by the statute), and b) because “section 80.36.400 does not 16 appear to create a private cause of action; it provides only a per se violation of the Consumer 17 18 Protection Act.” 2011 WL 11798573 at *4. The Agne court provides significant analysis for 19 the first reason and no further analysis for the second. Defendants cite no other case supporting 20 their position. Given Ms. Kalmbach’s analogous case law above, the Court concludes that both 21 causes of action can proceed at this early stage in the litigation. 22 23 24 2. Standing Defendants argue Ms. Kalmbach lacks standing to bring a claim under the WADAD for 25 lack of an injury because “Kalmbach would have suffered the same injuries (if any) whether 26 InfoCision used an automatic dialing device or dialed her number manually,” or whether 27 InfoCision used a prerecorded message or a live caller.” Dkt. #28 at 6 (citing two cases brought 28 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS - 5   1 under the federal Telephone Consumer Protection Act (“TCPA”), Ewing v. SQM US, Inc., --- F. 2 Supp. 3d. ----, No. 3:16-CV-1609-CAB-JLB, 2016 WL 5846494, at *2-3 (S.D. Cal. Sept. 29, 3 2016) and Romero v. Dep’t Stores Nat’l Bank, 199 F. Supp. 3d 1256, 1265 (S.D. Cal. 2016)). 4 In Response, Ms. Kalmbach argues that Ewing and Romero, authored by the same judge, 5 6 7 “misunderstand how calls made using an autodialer are more annoying than manually placed calls.” Dkt. #29 at 11. Ms. Kalmbach highlights how the injury comes from the fact that 8 autodialed calls “are incessant,” and that when one answers such a call the first thing the person 9 hears is either a computerized recording or dead air—neither of which allow the person to 10 11 12 inform a human being to stop harassing them like a call placed by a person would allow.” Id. Ms. Kalmbach cites to other cases that have rejected the standing arguments of Romero and 13 Ewing. Id. at 12 (citing LaVigne v. First Cmty. Bancshares, Inc., No. 1:15-CV-00934-WJ-LF, 14 215 F. Supp. 3d 1138, at 1147 (D.N.M. 2016); Abante Rooter & Plumbing, Inc. v. Pivotal 15 Payments, Inc., No. 16-CV-05486-JCS, 2017 WL 733123, at *7 (N.D. Cal. Feb. 24, 2017); 16 Mohamed v. Off Lease Only, Inc., No. 15-23352-CIV, 2017 WL 1080342, at *3 (S.D. Fla. Mar. 17 18 22, 2017); DeClue v. United Consumer Fin. Servs. Co., No. 16CV2833 JM (JMA), 2017 WL 19 1400144, at *2 (S.D. Cal. Apr. 19, 2017); Mbazomo v. Etourandtravel, Inc., No. 2:16-cv-02229- 20 SB, 2016 WL 7165693, at *2 (E.D. Cal Dec. 8, 2016)). 21 22 23 24 The Court agrees with Ms. Kalmbach. She has alleged an injury in fact, fairly traceable to the use of an autodialer and prerecorded message, which can be redressed by this Court. Ms. Kalmbach has adequately pled facts to reasonably infer that her injury would not have occurred 25 without Defendants’ incessant autodialing and use of a prerecorded message, given that she had 26 attempted to make it clear that Defendants were calling the wrong person. She has standing on 27 this claim. 28 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS - 6   3. Whether InfoCision used an Automatic Dialing and Announcing Device 1 2 The WADAD defines an automatic dialing and announcing device as “a device which 3 automatically dials telephone numbers and plays a recorded message once a connection is 4 made.” R.C.W. § 80.36.400(1)(a). 5 Defendants argue that Ms. Kalmbach fails to allege sufficiently specific facts to 6 7 conclude that InfoCision used an automatic dialing and announcing device as required under the 8 WADAD. Dkt. #28 at 6. In Response, Ms. Kalmbach argues that, because the Complaint 9 alleges that she personally received these calls, because these calls repeatedly called her trying 10 11 12 to reach someone else, and because the Complaint alleges that the calls were made using an announcing device, this conclusion resides within her personal particular knowledge and this is 13 sufficient to satisfy the Twombly/Iqbal standard. Dkt. #29 at 13-14. On Reply, Defendants 14 argue that the number of calls “by no means preclude the possibility or even the likelihood that 15 InfoCision manually dialed Kalmbach’s phone number.” Dkt. #30 at 6. 16 The Court finds that Ms. Kalmbach does not need to, at this stage, convince the Court 17 18 that the number of calls precludes the possibility that these calls were manually dialed, she need 19 only plead with adequately specific facts to meet facial plausibility. Twombly, 550 U.S. at 570. 20 The number and content of the calls satisfy this requirement. Although Ms. Kalmbach fails to 21 present direct evidence that an automatic dialing and announcing device was used, it is unclear 22 23 24 to the Court how she would obtain such evidence without discovery. Making all inferences in the light most favorable to Plaintiff as the non-moving party, she has adequately pled sufficient 25 personal experiences with these phone calls to bring this claim on her own behalf. See Baker, 26 supra. 27 4. Whether InfoCision is protected by the NRA’s Nonprofit Status 28 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS - 7   1 The WADAD applies only to “commercial solicitations,” defined as calls made “for the 2 purpose of encouraging a person to purchase property, goods, or services.” 3 80.36.400. Defendants argue that the WADAD does not apply to calls recruiting members to a 4 nonprofit advocacy organization. Dkt. #28 at 9. Defendants argue that the NRA was recruiting 5 6 7 R.C.W. § membership and soliciting donations, not selling “property, goods or services,” and that just because NRA members “receive gifts like a free duffel bag or magazine subscription with their 8 donation, does not transform their membership contributions into ‘purchases.’” Id. at 10. Ms. 9 Kalmbach points out that the Complaint alleges that “the calls here were made on behalf of the 10 11 12 NRA membership organization rather than its charitable companion, the NRA Foundation.” Dkt. #29 at 17 (citing Dkt. #1-1 at ¶24 and ¶31). 13 The Court disagrees that the WADAD cannot apply to any calls made on behalf of 14 nonprofit organizations. Such calls could still be encouraging a person to purchase property, 15 goods, or services. Defendants cite to no controlling law to convince the Court otherwise. 16 Taking the facts in the Complaint as true, the Court finds that a reasonable factfinder could 17 18 easily determine that Defendants were making calls for the purpose of encouraging a person to 19 purchase property, goods, or services as part of magazine membership rather than as a gift for a 20 charitable contribution, and that this is a commercial solicitation. This is adequate to survive a 21 12(b)(6) motion. 22 23 24 C. WDNC Claim Defendants argue that this claim must be dismissed because Ms. Kalmbach does not 25 allege that a “conversation” took place, as required by the statute. Dkt. #28 at 10-11 (citing 26 R.C.W. § 80.36.390(1)). In Response, Ms. Kalmbach cites to Hartman v. United Bank Card, 27 Inc., No. C11-1753JLR, 2012 WL 12882864, at *4 (W.D. Wash. Mar. 23, 2012), finding that 28 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS - 8   1 the statute “prohibits the initiation of a telephone conversation.” (emphasis in original). On 2 Reply, Defendants correctly point out that Ms. Kalmbach is referencing the Hartman court’s 3 discussion of the WADAD, not the WDNC, and argue: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Kalmbach also misapprehends the statute. In relevant part, the WDNC states that it applies to two things: “the unsolicited initiation of a telephone call by a commercial or nonprofit company or organization to a residential telephone customer and conversation for the purpose of encouraging a person to purchase property, goods, or services or soliciting donations of money, property, goods, or services.” R.C.W. § 80.36.390(1) (emphasis added). Thus, a defendant cannot violate the WDNC unless the call in question involves both (a) the “initiation of a telephone call” and (b) a “conversation.” Kalmbach posits that the phrase “initiation of” should apply to both subsequent clauses— that is, to both calls and conversations—but the statute’s text shows otherwise. Under subsection (2), callers making “telephone solicitations” must identify themselves and their organizations within the first 30 seconds, which suggests a live, person-to-person conversation, rather than a prerecorded call. Id. § 80.36.390(2). And under subsection (3), “[i]f, at any time during the telephone contact, the called party” requests not to be called again, the caller must honor that request for at least one year. Id. § 80.36.390(3). That subsection also presumes that a “telephone solicitation” involves a conversation with the caller. Otherwise, the statute would make no sense, as it could not possibly apply to the type of prerecorded messages that Kalmbach alleges here. Dkt. #30 at 10-11. 20 The Court agrees with Defendants’ analysis above and finds that Ms. Kalmbach has not 21 alleged a conversation took place in any call from Defendants, and that this is required to bring 22 23 24 a WDNC claim. This claim will be dismissed without prejudice and with leave to amend as the Court concludes that it is possible for Ms. Kalmbach to allege other facts, consistent with the 25 challenged pleading, to cure this deficiency. See Schreiber Distrib. Co. v. Serv-Well Furniture 26 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). 27 28 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS - 9   1 D. Invasion of Privacy Claim 2 Washington recognizes an invasion-of-privacy claim where the defendant “intentionally 3 intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs 4 or concerns… if the intrusion would be highly offensive to a reasonable person.” Mark v. 5 6 7 Seattle Times, 96 Wash. 2d 473, 497, 635 P.2d 1081, 1094 (1981) (citing the Restatement (Second) of Torts § 652A). 8 Defendants argue that Ms. Kalmbach’s common law invasion of privacy claim must be 9 dismissed because “she offers nothing suggesting the calls were highly offensive,” and because 10 11 12 Defendants did not intentionally intrude on Ms. Kalmbach’s solitude or seclusion because Defendants were attempting to reach a different person under the facts of the Complaint. Dkt. 13 #28 at 11-12. Defendants argue that the fact that they called Ms. Kalmbach on numerous 14 occasions does not alone create offense as she was free to disregard the calls. Id. (citing 15 McEndree v. Rash Curtis & Assocs., No. 2:10-CV-01079-MCE, 2012 WL 1640465, at *8 (E.D. 16 Cal. May 9, 2012); Oppenheim v. I.C. Sys., 695 F. Supp. 2d 1303, 1310 (M.D. Fla. 2010); 17 18 Restatement (Second) of Torts § 652B (1977), cmt. d)). 19 The Court concludes that the Complaint, taking all inferences in the light most favorable 20 to Plaintiff, pleads facts adequate to meet the requirements of this tort. Defendants did not need 21 to know the identity of who they were calling for their actions to be intentional; by the facts of 22 23 24 the Complaint, Defendants intended to call the number that they called. It is a fact-intensive inquiry whether the numerous phone calls were sufficiently offensive and the Court will not 25 now rule as a matter of law that the number of alleged phone calls was insufficient, or that their 26 incessant interruption of her life, after she attempted to have them end, did not constitute highly 27 offensive conduct. 28 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS - 10   1 E. Claims against the NRA 2 Finally, Defendants argue that all claims against the NRA should be dismissed because 3 Ms. Kalmbach has not alleged any facts to support her conclusion that the NRA is liable for 4 calls made by InfoCision. Dkt. #28 at 12. Defendants argue that Ms. Kalmbach must establish 5 6 7 that an agency relationship existed between InfoCision and the NRA. Id. at 12-13 (citing Anderson v. Domino’s Pizza, Inc., No. 11-CV-902 RBL, 2012 WL 1684620, at *4 (W.D. 8 Wash. May 15, 2012)). Although the Complaint alleges an agency relationship, Defendants 9 argue that the allegations are conclusory. Id. at 13. Ms. Kalmbach argues in her Response that 10 11 12 13 the Complaint could support an agency relationship under theories of apparent authority or ratification. Dkt. #29 at 26-28. Defendants do not provide any significant opposition to those theories on Reply. See Dkt. #30 at 13. 14 The Court concludes that the facts as pled and cited to by the parties in briefing are not 15 conclusory and provide sufficient detail to allege agency under the Twombly/Iqbal standard. 16 Although an allegation like “Defendant NRA, on its own and/or through its agents such as 17 18 Defendant InfoCision, has [engaged in] unsolicited telemarketing” appears conclusory in 19 isolation, it is not when supported by the rest of the facts in the Complaint, which indicate from 20 Ms. Kalmbach’s personal experience that InfoCision was contacting her on behalf of the NRA. 21 Ms. Kalmbach will not be required to prove the entirety of her case, including the internal 22 23 24 25 26 27 details of the business relationship between the Defendants, prior to discovery. The NRA remains in this case. IV. CONCLUSION Having reviewed the relevant pleadings and the remainder of the record, the Court hereby finds and ORDERS that Defendants’ Motion to Dismiss (Dkt. #28) is GRANTED IN 28 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS - 11   1 PART AND DENIED IN PART as set forth above. Plaintiff is granted leave to file an 2 Amended Complaint curing the above-mentioned deficiencies no later than thirty (30) days 3 from the date of this Order. Failure to file an Amended Complaint within this time period will 4 result in dismissal of Plaintiff’s WDNC claim. 5 6 7 DATED this 26 day of July, 2017. 8 9 10 11 A RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS - 12

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?